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THE FACTS

The applicant, Mr Carlos Fernandes Roseiro Bento, is a Portuguese national, who was born in 1954 and lives in Vagos (Portugal). He was represented before the Court by Mr A. Marinho e Pinto of the Coimbra Bar. The respondent Government were represented by Mr J. Miguel, Deputy Attorney-General .

A. The circumstances of the case

The facts of the case, as presented by the parties, can be summarised as follows.

The applicant, a medical practitioner, was the mayor of the town of Vagos at the material time, having been elect ed as a candidate of the P eople ' s Party ( CDS-PP ) .

At a council meeting on 3 April 1996 a heated exchange took place between the applicant and M r P. M., a town councillor ( vereador ) and member of the Social Democrat Party ( PSD ). M r P. M. complained, among other things , of the way the town was being run , saying that a town could not be run like a grocer ' s or a doctor ' s surgery . He added that he found it unacceptable to see local residents treated like “ puppets ” and subjected to the personality cult the applicant sought to foster .

In reply, the applicant said, inter alia :

“Councillor P. M. is a political autist who seek s to make a small role for himself on the political stage when his political career is in tatters . I am loath to respond to such provocation, particularly at such a low level or by someone who se only knowledge of politics is of nasty, premeditated, Machiavellian -style betrayal. ... I would be concerned if such obnoxious tittle tattle had come from someone reputable. ... The least that can be said about his behaviour in the town council is that it is general ly strange ... he inexplicably causes meetings to drag on, ran ts and raves when dictating the record which, for the last meeting, r an to no less than five pages . ”

On 21 June 1996 M r P. M. lodged a criminal complaints with the Vagos public prosecutor accusing the applicant of insulting behaviour. He also claim ed for damages.

On 26 February 1999 the public prosecutor lodged his submissions. The applicant was accused of insulting behaviour as a result of his aforementioned remarks .

On 23 Mar ch 1999 the applicant asked for an investigation to be carried out. He submitted, inter alia , that the offence of insulting behaviour was not made out and that any conviction would be an intolerable restriction on political debate and freedom of expression.

In an order of 2 June 1999, the investigating judge of the Vagos Criminal Court discontinued the proceedings, as he considered that the Amnesty Act (Law no. 29/99 of 12 May 1999 ) sh ould apply to the case .

On 14 June 1999 the complainant asked for the proceedings to resume so that his claim for damages could be determined .

In a judgment of 22 February 2001, the Vagos Criminal Court ordered the applicant to pay 200 , 000 escudos ( approximately 1 ,000 euros ). It found that the expressions that had been used were insulting and had caused M r P. M. harm that warranted pecuniary reparation.

On 14 March 2001 the applicant appealed to the Coimbra Court of Appeal. He began by arguing that Article 400 § 2 of the Code of Criminal Procedure was unconstitutional as, in his submission, it infringed his right to appeal. He added that the conviction was an intolerable restriction on free political debate and freedom of expression.

The complainant cross - appeal ed .

The Court of Appeal gave judgment on 20 June 2001. It first examine d the preliminary question of the admissibility of the appeal. It noted that Article 400 § 2 of the Code of Criminal Procedure laid down that no appeal could be made against a decision concerning a claim for damages if the amount in dispute was below a certain level. Referring to a judgment of the Constitutional Court of 13 March 2001, it said that that provision did not contravene the Constitution. It therefore declared the appeal inadmissible without examining the other grounds stated in the applicant ' s appeal. The cross - appeal that had been lodged by M r P. M. was not examined either as it had become devoid of purpose following the dismissal of the main appeal.

The applicant lodged a n appeal with the Constitutional Court in which he argued that Article 400 § 2 of the Code of Criminal Procedure was unconstitutional .

By a judgment of 27 February 2002, the Constitutional Court dismissed th at appeal. Referring to its judgment of 13 March 2001, it stressed that the right of appeal provided for by Article 32 of the Constitution applied solely to criminal proceedings in the strict sense and not to claims for damages, even if such claims had been made in criminal proceedings. It was therefore legitimate to limit the right of appeal by ref erence to the amount in dispute .

B. Relevant domestic law and practice

1. Remedies

Article 32 § 1 of the Constitution provides: “ All rights of the defence shall be guaranteed in criminal proceedings, including a right of appeal”.

The rules of procedure in force in Portugal recognise the principle that claim s for damages arising out of the commission of a criminal offence must be made in the criminal proceedings ( princípio de adesão ) ( Article 71 of the Code of Criminal Procedure ).

Article 400 § 2 of the Code of Criminal Procedure, as amended by Law no. 59/98 of 25 August 1998 , which ent ered into force on 1 January 1999 , provides that appeals against orders in the judgment concerning damages are admissible only if the amount the appellant has been ordered to pay exceeds a predetermined sum. In the instant case, the relevant figure was 375 , 000 escudos ( as specified in the statute applicable at that time, Law no. 3/99 of 13 January 1999).

In both its judgment of 13 March 2001, which was published in the Official Gazette of 24 April 2001, and its judgment in the present case, the Constitutional Court held that Article 400 § 2 of the Code of Criminal Procedure did not infringe Article 32 of the Constitution.

2. Freedom of expression and insulting behaviour

Article 181 of the Criminal Code, which concerns insulting behaviour, was worded as follows at the material time :

“ 1. Anyone who insults another, by accusing them of something, even if the accusation takes the form of a suspicion, or by addressing them with words that cast a slur on their honour or reputation shall be liable on conviction to a maximum of three months ' imprisonment or 120 day-fines.

2. As regards the question of liability , paragraphs 2, 3, 4 and 5 of Article 180 shall apply . ”

Article 180 of the Criminal Code concerns defamation. As worded at the material time, the relevant paragraphs of this provision read as follows:

“ ...

2. Such conduct shall not give rise to liability :

( a) if the accusation is made in respect of a legitimate interest ; and

(b) the person making it establishes the truth of the accusation or has serious grounds for believing in good faith that it is true.

...

4. The defence of good faith referred to in sub-paragraph (b) of paragraph 2 shall not be available where the maker of the statement has not complied with the duty imposed by the circumstances of the case to verify whether the accusation is true . ”

Article 184 of the Criminal Code increases the sentence by a half if the victim is an elected representative of the people .

Articles 70 and 484 of the Civil Code la y down that a nyone who casts a slur on the honour or reputation of another is liable in damages under the civil law .

COMPLAINT

The applicant complained under Article 10 of the Convention of a violation of his right to freedom of expression.

THE LAW

The applicant argued that his conviction had violated his right to freedom of expression , as guaranteed by Article 10 of the Convention, which provides:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others...”

The Government pleaded a failure to exhaust domestic remedies. They accepted that the applicant ' s appeals to the Court of Appeal and the Constitutional Court had had no prospect of success in view of the wording of Article 400 § 2 of the Code of Criminal Procedure. However, the y said that there had been nothing to stop the applicant raising his arguments under Article 10 of the Convention in the Vagos Criminal Court, which would then have had the possibility of reaching a different decision in the light of the applicant ' submissions.

The applicant maintained that he had used all the means available to him under domestic law to seek a remedy for the violation. In particular, he had argued th at Article 400 § 2 of the Code of Criminal Procedure was unconstitutional. He rejected the Government ' s argument that he could have made a case under Article 10 in the Vagos Criminal Court, noting that under domestic law a court ' s jurisdiction ceased once it had delivered judgment. A judgment could only b e impugned by an appeal to a higher court . His application was not, therefore, caught by the exhaustion - of - remedies requirement under Article 35 § 1 of the Convention.

The Court reiterates that under Article 35 § 1 it may only deal with applications after domestic remedies have been exhausted. All applicants must provide the domestic courts with the opportunity which is in principle intended to be afforded to Contracting States by that provision, namely the opportunity of preventing or putting right the violations alleged against them (see, among other authorities , Cardot v. France , judgment of 19 March 1991, Series A no. 200, p. 19, § 36). That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).

The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, among many other authorities, Vernillo v. France , judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27 ; and Dalia v. France , judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, pp. 87-88, § 38).

As regard s the instant case, the Court reiterates that the possibility of requesting an authority to reconsider the decision taken by it does not constitute an effective remedy ( G. v . the United Kingdom , n o. 11932/86, Commission decision of 9 May 1988, Decisions on Reports (DR) 56, p. 199). It therefore dismisses the objection raised by the Government.

The Court f urther notes that the Government accepted that the applicant ' s appeal to the Court of Appeal had no prospect of success in view of the wording of Article 400 § 2 of the Code of Criminal Procedure . It nevertheless considers that it should examine this question in greater detail, as, if there was no possibility of the applicant ' s successfully appealing against the decision of the Vagos Criminal Court, the question arises whether the application in the present case sh ould be dismissed as being out of time, bearing in mind that the final domestic decision would then have been the Criminal Court ' s decision of 22 February 2001, which was given more than six months before the application in the present case was lodged with the Court on 23 July 2002.

In that connection , the Court reiterates that where there is a doubt about the effectiveness of a remedy, the issue should be tested before the courts ( Whiteside v . the United Kingdom , n o. 20357/92, Commission decision of 7 March 1994, DR 76, p. 80).

In the present case, the Court notes that the provisions of Article 400 § 2 of the Code of Criminal Procedure limiting the right of appeal in certain types of case were introduced by an Act of 1998, which came into force on 1 January 1999. As he wished to appeal against the decision of the Vagos Criminal Court ordering him to pay damages, the applicant argued in the Court of Appeal and the Constitutional Court that Article 400 § 2 was unconstitutional. In its judgment of 20 June 2001 the Court of Appeal cited a Constitutional Court judgment of 13 March 2001 on the same issue as authority for rejecting his arguments and finding that the new version of Article 400 § 2 was constitutional . The Constitutional Court subsequently followed its previous decision .

It should be noted that the applicant lodged his appeal to the Court of Appeal on 14 March 2001, one day after the Constitutional Court ' s judgment examining this issue for the first time was delivered on 13 March 2001. That judgment did not, however, become public until it was publi shed in the Official Gazette of 24 April 2001. It is therefore reasonable to conclude that when the applicant lodged his appeal to the Court of Appeal he was unaware – as indeed the legal profession generally would have been – of the Constitutional Court ' s ruling that Article 400 § 2 of the Code of Criminal Procedure did not contravene the Constitution.

The Court considers that the applicant cannot be criticised for having sought relief in the higher courts by attempting to argue in the Court of Appeal that a new statutory provision on which the Constitutional Court had yet to give a public ruling was unconstitutional . His decision to appeal to the Constitutional Court was also comprehensible as a t th at juncture the Constitutional Court ' s case-law on the subject consisted of a single decision and was not therefore entirely settled in Portuguese law. The Court notes in that connection that if the Constitutional Court had held the relevant legislation to be unconstitutional, the Court of Appeal would have been obliged to examin e the applicant ' s other grounds of appeal, including the alleged violation of his freedom of expression.

In the special circumstances of the case, the Court therefore finds that the final domestic decision in the present case was the Constitutional Court ' s decision of 27 February 2002. The application cannot therefore be dismissed as being out of time .

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For these reasons, the Court, unanimously,

Declares the remainder of the application admissible, without prejudging the merits of the case.