FOURTH SECTION

DECISION

Application no. 61177/14 Eurico José MARQUES DOS REIS against Portugal

The European Court of Human Rights (Fourth Section), sitting on 11 January 2022 as a Committee composed of:

Armen Harutyunyan, President, Jolien Schukking, Ana Maria Guerra Martins, judges,

and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 61177/14) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Mr Eurico José Marques dos Reis (“the applicant”), on 6 September 2014;

the decision to give notice of the application to the Portuguese Government (“the Government”);

the parties’ observations;

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Eurico José Marques dos Reis, is a Portuguese national, who was born in 1956 and lives in Lisbon. He was represented before the Court by Mr E. Maia Cadete, a lawyer practising in Lisbon.

2. The Government were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney General.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant is a judge at the Lisbon Court of Appeal.

(a) Civil proceedings concerning the death of the applicant’s father and the circumstances surrounding the disappearance of the case file

5 . On 11 April 1994 the applicant’s father was killed by a train while walking across a level crossing at Queluz-Belas railway station.

6 . Following an unsuccessful attempt to bring criminal charges, the applicant, his sister and his stepmother instituted civil proceedings in the Sintra District Court against Caminhos de Ferro Portugueses (CP), the national rail services company, and Rede Ferroviária Nacional, EP (REFER), the company which manages the national rail network infrastructure.

7 . On February 2011 the court ordered the defendants to pay 155,000 euros (EUR) plus interest in damages to the applicant, his sister and his stepmother.

8 . On 12 October 2011, following an appeal, the case file, which consisted of six volumes and ten audio and video cassettes, was submitted to the Lisbon Court of Appeal.

9 . On 6 January 2012 the parties to the case were informed by the judge rapporteur that the case file had disappeared.

10. On 18 January 2012 the applicant lodged a complaint with the President of the Lisbon Court of Appeal, seeking to have an investigation opened into the whereabouts of the case file.

11. On an unknown date in 2012 the applicant lodged a criminal complaint against “unknown persons” with the Lisbon public prosecutor regarding the missing case file. The case was examined directly by the Lisbon Court of Appeal under section 56(b) and (c) of the Organisation of the Courts Act (Law no. 3/99 of 13 January 1999; see paragraph 30 below).

12 . On 8 May 2012 the Lisbon Department of Criminal Investigation and Prosecution issued a report noting that, at the time of the disappearance, there had been no protocol regulating the transport of case files. It also observed that between November 2011 and January 2012, various sections of the Lisbon Court of Appeal had collected paperwork that was meant to be destroyed, and suggested that the case file might have been mixed up with those documents.

13. On 8 May 2012 the Lisbon Court of Appeal dismissed the proceedings, holding that there was no indication of the existence of an offence.

14. On 18 May 2012 the President of the Lisbon Court of Appeal informed the applicant that new security measures had been introduced to prevent the further disappearance of case files.

(b) Interview with the i newspaper

15. The media made reference to the case on several occasions. On 17 May 2012 the weekly magazine Sábado published an article referring to the missing case file.

16 . On 5 June 2012 the i newspaper also published an article on the case. In the article, the applicant was quoted by the journalist as saying that, inter alia , the disappearance of the case file was “incomprehensible” and that “the disappearance of a case file is not an extraordinary event”. The newspaper also interviewed the President of the Lisbon Court of Appeal, who confirmed the disappearance of the case file.

17 . On 7 June 2012 the i newspaper published an interview with the applicant under the headline “Eurico Reis: I am paying for my tongue [ estou a pagar pela minha língua ] because I am persona non grata ”. The article referred to the inconclusive result of the civil proceedings that had been instituted following the death of the applicant’s father. The relevant parts of the transcript of the interview read as follows:

“Journalist: How did you find out about the disappearance of the case file?

Applicant: My lawyer was notified in January. It seems that the disappearance was only noticed at the end of December.

...

Journalist: Have the security conditions [in respect of the transport of case files] improved?

Applicant: What happens now is that every time that a case file is taken from or brought back to [the court premises], the administrative staff must sign for it, but not the judges. Before now, not even this standard existed. But these are still not security measures. ...

Journalist: Are you convinced that this was not an accident?

Applicant: Completely. Even more so when I hear that what is considered extraordinary about the case is the fact that I am a judge and a party to the proceedings and not that a case file has disappeared. The differentiating element in the case is not the fact that I am a judge. My father was killed because some gentlemen did not care enough about the safety of persons who pay for a ticket for transport. And now the case file has disappeared and no one knows how.

Journalist: Do you think there is a possibility that the disappearance was ordered by CP or REFER?

Applicant: I have no evidence of that; I can only identify the facts.

Journalist: Was there internal interference as well from the court?

Applicant: ... The disappearance of the boxes would never have been possible without significant internal collusion.

...

Journalist: Are you persona non grata ?

Applicant: I have been for a long time. For making a lot of complaints about the functioning of the judiciary. ... There are people who hate me in the judiciary. And within the Court of Appeal there are also people who refuse to talk to me.

...

Journalist: If the case is remitted to the first-instance court, do you think its fate is already determined: to result in another retrial?

Applicant: After all that has happened, if the judicial system considers that the arguments from CP and REFER are valid, that is proof of what I have been saying: the system [as it is] cannot continue. The justice system is no longer a mere embarrassment, but even an obstacle to the development of the country. And it is responsible for the loss of huge investments in Portugal.

Journalist: If I, as a person who is not a judge, were to institute a [judicial] process here tomorrow, am I at risk that it will disappear?

Applicant: If someone does not like you and it involves powerful companies, unfortunately I cannot guarantee that it will not happen.”

(c) Discovery of the missing case file

18. On 3 April 2013 the missing case file relating to the proceedings against REFER and CP was found in the Lisbon Court of Appeal. However, two cassettes were missing and one had been recorded over.

(a) Disciplinary proceedings before the High Council of the Judiciary

19 . On 21 June 2012 the plenary of the High Council of the Judiciary ( Conselho Superior da Magistratura – hereinafter “the CSM”) decided to open disciplinary proceedings against the applicant following his interview with the i newspaper on the grounds that his comments to the media had been “objectively offensive to the honour of those mentioned”.

20. On 11 March 2013 M.C., a Supreme Court judge, was placed in charge of the investigation. He replaced A.C., a judicial investigator who had previously been appointed but had eventually requested to stand down from the case following the rejection by the CSM of his report proposing that the disciplinary proceedings be discontinued.

21. On 3 April 2013 M.C. drew up an indictment against the applicant. The indictment stated that the applicant had committed a disciplinary offence through the negligent breach of the duty of propriety ( dever de correcção ), which had damaged the honour of the members of the CSM, the Lisbon Court of Appeal and their respective bodies, infringing section 3(10) of the Civil Servants’ Disciplinary Act (see paragraph 28 below).

22. On an unknown date the applicant presented his defence.

23 . On 12 June 2013 M.C. submitted his final report under section 122 of the Status of Judges Act ( Estatuto dos Magistrados Judiciais ; see paragraph 28 below), proposing that the CSM dismiss the disciplinary proceedings.

24 . In a decision of 9 July 2013, delivered to the applicant on 12 July 2013, the CSM, sitting in plenary session, dismissed the judicial investigator’s proposal. Instead, the CSM found that the applicant had acted in breach of the duty of propriety and, considering the context of his remarks as well as the factors weighing in his favour, such as the fact that he had a clean record and overall positive evaluations as a judge, a light penalty should be imposed. Accordingly, it ordered him to pay ten day-fines amounting in total to EUR 1,785.43. The offence would also be permanently recorded in the applicant’s judicial registry certificate. The relevant excerpts from the CSM’s decision read as follows:

“It must be stated that such statements are capable of creating the social havoc mentioned in the indictment, as they were made by a judge from the very same court from where the case file disappeared ...

A breach of the duty of propriety does not require a direct offence aimed at a specific target. Performing public functions, in particular the administration of justice, entails a duty for the judge to treat with loyalty and propriety all those whom he deals with ...

... his comments affected the image of the efficiency expected of a court, in particular the Lisbon Court of Appeal. Moreover, public entities are also entitled to legal protection, and their right to honour may be disrespected.

With the exception of the President of the Lisbon Court of Appeal, those alluded to did not show signs of having been offended in respect of their honour and professional worth by the applicant’s comments, but those comments still affect the rigour, competency and impartiality expected of each employee or judge at the court.

The applicant does not refrain from creating the suspicion that case files are prone to disappear if they refer to people who are not well liked and when powerful companies are involved ..., thus creating the idea that the courts are guided by private interests and not by the public interests of the administration of justice.

In the present case, we believe that the damage to the right to a good name and reputation of those alluded to is established, exacerbated by the fact that the applicant resorted to [making his statements to] the media.”

(b) Supreme Court proceedings

25 . On 1 November 2013 the applicant lodged an appeal with the Supreme Court against the CSM’s decision.

26 . On 11 April 2014 the Supreme Court, sitting as a plenary bench of seven judges, dismissed the applicant’s appeal. The Supreme Court conducted a proportionality assessment between the applicant’s right to freedom of expression and the principle of efficiency and effectiveness of public administration, which includes the duty of respect, restraint and discretion. The Supreme Court noted:

“In the conflict between the right to freedom of opinion and expression and the constitutional obligation of efficacy and efficiency of the public authorities under which the duty of respect falls, it is not possible ... to conclude, in the abstract, as to the primacy of any of these constitutionally protected values, without each being subject to a methodical assessment of proportionality ... in order to ensure that the employee may express his or her opinions without compromising the necessary respect that is owed to those with whom he or she comes into contact during his or her employment ...

The [applicant] is a Court of Appeal judge [ Juiz Desembergador ] with more than thirty years of service and vast professional experience, who knows perfectly well that the principle of the duty to give grounds for legal decisions [ princípio da fundamentação ] is not compatible with intuitive impulses, and that openness to the search for the truth must always be present in the ‘man-judge’ [ homem-juiz ], whose mind must not rest with the existence of circumstantial and prima facie information.

...

And this is to say that ... it was not reasonable to conclude and share with the media the idea that human interference was behind the disappearance of the case file, and, even less so, that this was an incident which could recur as long as powerful interests within the parties to the proceedings so wished ... we do not accept ... that the [applicant] had well-founded and legitimate reasons to believe this allegation to be true.

...

The right to participate in public life and the resolution of national problems ... does not justify a breach of the duty of respect and confidentiality, made even more reprehensible when perpetrated by a member of the judiciary than by anyone else, especially as the holder of a public office ... .

...

The duty of propriety is interconnected with the restraint and dignity that is demanded by the exercise of public functions ...; the duty of discretion is established in section 12 of the Status of Judges Act.”

27 . The Supreme Court concluded that there were sufficient elements to conclude that there had been a violation, with fault-based liability ( ilícita e culposa ), of the duty of propriety, respect and courtesy ( urbanidade ), pursuant to section 3(1) and (2)(h) of the Civil Servants’ Disciplinary Act, applicable to judges under section 131 of the Status of Judges Act.

28 . The relevant provisions of the Status of Judges Act ( Estatuto dos Magistrados Judiciais – Law no. 21/85 of 30 July 1985), as applicable at the material time, read as follows:

Section 12 – Duty of discretion

“1- Members of the judiciary shall not make declarations or comments about judicial proceedings [ processos ], except when authorised by the High Council of the Judiciary, in connection with the right to honour or the realisation of any other legitimate interest.

2- Information that is not covered by judicial secrecy or professional confidentiality and that pursues legitimate interests, such as access to information, shall not fall under the duty of discretion.”

Section 122 – Report [of the judicial investigator]

“Once the investigation has been completed, the judicial investigator shall compile a report within fifteen days. The report shall contain:

(a) the establishment of the facts;

(b) their legal classification; and

(c) the applicable penalty.

...”

Section 131 – Subsidiary law

“The rules governing the status of civil servants ... shall apply in the alternative, together with the Criminal Code, the Code of Criminal Procedure ...”

29 . The relevant provisions of the Civil Servants’ Disciplinary Act ( Estatuto disciplinar dos trabalhadores que exercem funções públicas – Law no. 58/2008 of 9 September 2008) as in force at the material time and as applicable to judges under section 131 of the Status of Judges Act, read as follows:

Section 3 – Disciplinary offences

“1. The behaviour of an employee that, either by action or omission, even if merely negligent [ meramente culposo ], violates the general or special duties inherent in the function that he or she performs shall constitute a disciplinary offence.

2. The general duties of civil servants shall comprise:

...

(h) a duty of propriety;

...

10. The duty of propriety refers to being respectful towards the users of public bodies or services, other employees and one’s immediate superiors.”

30 . Section 56(b) and (c) of the Organisation of the Courts Act ( Lei da Organização do Sistema Judiciário – Law no. 3/99 of 13 January 1999), as in force at the relevant time, provided as follows:

“1. The sections [of the Court of Appeal] shall have jurisdiction, depending on their field of specialisation, to:

...

(b) decide in proceedings brought against judges and military judges of first-instance courts, public prosecutors and deputy prosecutors, in connection with their duties;

(c) decide in proceedings in respect of criminal offences committed by the judges, prosecutors and military judges referred to in the previous clause ... ;

COMPLAINT

31. The applicant complained under Article 10 of the Convention that his right to freedom of expression had been infringed.

THE LAW

32. The applicant complained that the penalty of ten day-fines imposed on him following his statements to the i newspaper constituted a violation of his right to freedom of expression as provided for by Article 10 of the Convention, which so far as relevant reads as follows:

“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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

33. The Government submitted that the disciplinary sanction imposed on the applicant fell within the Status of Judges Act and the Civil Servants’ Disciplinary Act (see paragraphs 28 and 29 above). They argued that the applicant’s comments were particularly serious considering that he had criticised the institution of the Lisbon Court of Appeal in which he served and which he represented (see paragraph 4 above), and that those comments had damaged the good name and reputation of the people that exercised functions at the Lisbon Court of Appeal. They considered the sanction imposed proportionate to the offense.

34. The applicant alleged that his statements to the media had been made in a private capacity and had concerned a matter of public interest, namely the administration of justice.

35 . He argued that the sanction imposed had not been prescribed by law because his comments had been based on verifiable facts. Furthermore, he noted that he had not targeted anyone in particular and that he had had a solid factual ground for his opinion, referring to the reports by the Lisbon Department of Criminal Investigation and Prosecution (see paragraph 12 above) and by both judicial investigators in the disciplinary proceedings (see paragraphs 19 and 24).

36. The parties did not dispute that the CSM’s decision, confirmed by the Supreme Court, to apply a sanction on account of the applicant’s statements to the media had amounted to an “interference” with the exercise of his right to freedom of expression. The Court sees no reason to hold otherwise.

37. In the present case the parties’ opinions differed as to whether the interference with the applicant’s freedom of expression had been “prescribed by law”. The Court, for its part, observes that the factual basis of the applicant’s comments on this point (see paragraph 35 above) is irrelevant in assessing whether or not they fall under the scope of domestic law. That element is to be assessed in the context of the examination of the proportionality of the interference. In the present case, the Court is satisfied that the interference had a basis in domestic law, namely section 3 of the Civil Servants’ Disciplinary Act, to which section 131 of the Status of Judges Act refers (see paragraphs 28 and 29 above). Accordingly, the interference was “prescribed by law”.

38. The Court also agrees with the Government that the interference complained of pursued legitimate aims as referred to in Article 10 § 2 of the Convention, namely the guarantee of “the authority ... of the judiciary” and “the protection of the reputation or rights of others” – in the instant case, those working at the Court of Appeal (compare, for example, Marcolino de Jesus v. Portugal (dec.), no. 2388/15, § 55, 1 June 2021). It remains to be established whether the interference complained of was “necessary in a democratic society”.

(a) General principles

39 . The fundamental principles concerning the question of whether an interference with freedom of expression is “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well established in the Court’s case-law. They have been summarised in Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016) and Baka v. Hungary ([GC], no. 20261/12, §§ 158-67, 23 June 2016).

40. The Court reiterates that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10. However, the Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, represents a fundamental value in a law-governed State, and must enjoy public confidence if it is to be successful in carrying out its duties. It may therefore prove necessary to protect that confidence against destructive attacks which are essentially unfounded, especially in view of the fact that judges who have been criticised by the public are subject to a duty of discretion that precludes them from replying (see Kudeshkina v. Russia , no. 29492/05, § 86, 26 February 2009; and Prager and Oberschlick v. Austria , 26 April 1995, § 34, Series A no. 313). The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being the proper forum for the settlement of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge (see Worm v. Austria , 29 August 1997, § 40, Reports of Judgments and Decisions 1997-V). For this reason the Court has found it incumbent on public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called into question (see Wille v. Liechtenstein [GC], no. 28396/95, § 64, ECHR 1999 ‑ VII).

(b) Application of these principles to the present case

41. Turning to the present case, the Court notes that the CSM and the Supreme Court charged the applicant with a disciplinary offence under the Civil Servants’ Disciplinary Act, to which the Status of Judges Act refers (see paragraphs 28 and 29 above), on account of his statements to the i newspaper, published on 7 June 2012 (see paragraphs 17, 19 and 24 above). In his interview, the applicant, a judge at the Lisbon Court of Appeal (see paragraph 4 above), referred to the disappearance of a case file from that same court, concerning the death of his father (see paragraphs 17 and 24 above). The applicant alleged that the disappearance of the case file might have been intentional and aided by staff from the Lisbon Court of Appeal. The applicant also criticised the lack of security measures to control the whereabouts of the case file. Moreover, the applicant mentioned that “... the justice system is no longer a mere embarrassment, but even an obstacle to the development of the country”. Finally, he alleged that such incidents might recur as long as powerful interests involved in the proceedings so wished (see paragraph 17 above).

42. The Court begins by noting that the national authorities held that, in making the statements at issue, the applicant had breached the duty of propriety, respect and courtesy ( urbanidade ) enshrined in section 3(1) and (2)(h) of the Civil Servants’ Disciplinary Act (see paragraphs 24, 26, 27 and 29 above). They were of the view that the applicant’s comments to the media had harmed public trust in the judiciary. Referring to his role as a member of the Lisbon Court of Appeal and the context of the impugned statements, they considered that the interview had been detrimental to the reputation of the justice system and had tarnished the dignity of the position of judges and the independence and impartiality of the judiciary. Furthermore, the applicant had not presented supporting evidence for his allegations (see paragraphs 24, 26, and 27 above).

43. The Court finds that the national authorities are, in principle, better placed than an international court to assess the intention behind impugned phrases and statements and, in particular, to judge how the general public would interpret and react to them (see Panioglu v. Romania , no. 33794/14, § 116, 8 December 2020).

44. The Court notes in this connection that the duty of loyalty and discretion owed by civil servants, and particularly the judiciary, requires that even the dissemination of accurate information should be carried out with moderation and propriety (see Kudeshkina , cited above, § 93; Guja v. Moldova [GC], no. 14277/04, § 70, ECHR 2008; and Will e, cited above, §§ 64 and 67).

45. In so far as the applicant’s motive for making the impugned statements may be relevant, the Court reiterates that an act motivated by a personal grievance or personal antagonism would not justify a particularly strong level of protection (see Kudeshkina , cited above, § 95, and Guja , cited above, § 77).

46. The Supreme Court accepted that the present case required it to balance the applicant’s right to freedom of expression with the need to protect the efficiency and effectiveness of public administration. It did not reproach him for disclosing facts, namely information about the disappearance of the file relating to the civil proceedings instituted by him against the railway companies CP and REFER (see paragraphs 5-9 above) nor for criticising the lack of a system to control the whereabouts of files in the Lisbon Court of Appeal. However, it considered that he had raised allegations for which he had no well-founded reasons to believe that they were true, namely about the possible internal interference of the Court of Appeal’s staff in the disappearance of the case file, as well as the likelihood of such incidents recurring when powerful interests were involved (see paragraph 26 above). In that connection, the Court reiterates that where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there is not, that value judgment may prove excessive (see Morice v. France [GC], no. 29369/10, § 126, ECHR 2015 and the case-law cited therein).

47. Furthermore, the Court agrees with the CSM’s and the Supreme Court’s findings that by connecting his personal case to the justice system as a whole, the applicant failed to share his views with moderation and propriety. In particular, the Court notes that the applicant did not give the interview simply from the perspective of a private citizen, but instead commented on the wider flaws of the judicial system, and especially of the Lisbon Court of Appeal, from his perspective as a member of that court (see paragraph 17 above). Therefore, his comments may rightly be considered to call into question the authority of the judiciary (see Wille , cited above, § 64).

48. In these circumstances, the Court is satisfied that the reasons given by the CSM and the Supreme Court in carrying out a balancing exercise between the competing rights at stake were relevant or sufficient, given the absence of a sufficient factual basis for the serious allegations made by the applicant (see paragraphs 24 and 26 above).

49. Turning to the penalty imposed on the applicant, the Court observes that the sanction of ten day-fines with a total value of EUR 1,785.43 did not amount to a disproportionate interference with the exercise of his right to freedom of expression. The CSM and the Supreme Court took into account a number of relevant factors, including the gravity of the offence, the context in which it was carried out, the applicant’s overall positive record as a judge and the impact of his comments on public trust in the judiciary (see paragraphs 24 and 26 above).

50. In the light of the foregoing and the particular importance it attaches to the position held by the applicant, the Court concludes that the interference with the applicant’s freedom of expression was “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. Therefore, the Court does not see any weighty reasons to substitute its view for that of the domestic courts (compare Marcolino de Jesus , cited above, §§ 61-62).

51. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 February 2022.

Ilse Freiwirth Armen Harutyunyan Deputy Registrar President