Communicated on 14 October 2015

FIRST SECTION

Application no. 53139/11 Carlos DO CARMO DE PORTUGAL E CASTRO CMARA against Portugal lodged on 10 August 2011

STATEMENT OF FACTS

The applicant, Mr Carlos do Carmo de Portugal e Castro C â mara , is a Portuguese national, who was born in 1957 and lives in Lisbon. He is represented before the Court by Mr F. Teixeira da Mota , a lawyer practising in Lisbon.

A. The circumstances of the case

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

1. The background of the case

The applicant is a university professor. At the relevant time, he was working at the Portuguese Meteorological Institute ( Instituto Portugu ê s de Metereologia , hereinafter “the IM”) (since renamed the Portuguese Sea and Atmosphere Institute ( Instituto Portugu ê s do Mar e da Atmosfera ). The applicant had been the project coordinator of a project co-funded by the EU agency EUMESAT until he was removed from this position by the president of the IM, A.S., in January 2006.

On 3 March 2006 a national weekly newspaper, O Independente , published an article entitled “Bad weather at the Institute”, which contained statements by the applicant on the problems faced in the implementation of the project.

The article also contained statements by A.S., which downplayed the applicant ’ s statements and cast aspersions on the applicant ’ s ability to lead the project, his professional capacity and seriousness. The relevant parts of the article read as follows:

“... Someone who does not share these views is the president of the IM, A.S., who has assured O Independente that “the project does not face any risk” and denigrated Carlos C â mara , whom he does not recognise as having the “skills to evaluate the development of the project”, and his opinions ...With regard to C â mara leaving the project, A.S. mentioned that the former scientific coordinator “had broken a relationship of trust”, adding that his behaviour and his profile had led to his removal ...”

On 10 March 2006 O Independente published an opinion article, entitled “The Liar”, written by the applicant in reply to the article of 3 March 2006. The article was divided into three parts: i ) the reasons he had decided to write the article; ii) the problems with the project in question; and iii) a reaction to the statements made by A.S. about his character and professional ability. The relevant parts of the article read as follows:

“... the journalist attempted to get the other party ’ s opinion and so contacted the President of the IM, A.S.. He could have either confirmed my statements or lie shamelessly. [He] opted for the latter ...

By denying these facts – which are easy to demonstrate – the President shows that he is a liar ... Unlike the President of the Institute – who without the political support he has wouldn ’ t be anything else other than an A [ referring to the president of the I.M. ’ s first name ] – in the world in which I engage professionally, I don ’ t need to be a “coordinator” in order to have my expertise recognised. In that world – in which my expertise comes from peer recognition and is the result of the evaluation of my work – the president of the IM is nothing but a liar and a misfit. And being the president is nothing more than a mere accident ... of base politics.”

2. Criminal proceedings against the applicant

On an unknown date A.S. lodged a criminal complaint against the applicant, accusing him of defamation (domestic proceedings no. 5597/06.9TDLSB). He alleged that the applicant ’ s article had disseminated defamatory statements about him. On an unknown date A.S. sought leave to participate in the proceedings as an assistant (with victim status) to the public prosecutor ( assistente ) and lodged a claim for damages against the applicant.

In a judgment of 14 July 2010 the Lisbon Criminal Court convicted the applicant of aggravated defamation and sentenced him to 250 day fines, totalling 2,000 euros (EUR). The applicant was also ordered to pay EUR 3,000 in damages to A.S. It held that by making those statements the applicant had wilfully defamed A.S. by making disparaging allegations in respect of him. The court further noted that the applicant ’ s article, and in particular the choice of the words “liar” and “misfit”, had been vindictive and a personal attack on A.S.

On an unknown date the applicant appealed against the judgment to the Lisbon Court of Appeal.

On 17 February 2011 the Lisbon Court of Appeal upheld the first ‑ instance decision.

B. Relevant domestic law

The Portuguese Criminal Code provides as follows:

Article 180 § 1

“Anyone who, when addressing a third party, accuses another, even if the accusation takes the form of a suspicion, or makes a statement that casts apersions on the honour of another, even when reproducing the accusation or statement, shall be liable on conviction to a maximum of six months ’ imprisonment or 240 day-fines.

Article 184 of the Criminal Code increases the sentence by a half if the victim is a civil servant.

COMPLAINT

The applicant complains, under Article 10 of the Convention, that his conviction amounted to a violation of his right to freedom of expression within the meaning of Article 10 of the Convention.

QUESTION TO THE PARTIES

Did the criminal conviction of the applicant for aggravated defamation give rise to a breach of his right to freedom of expression, contrary to Article 10 of the Convention? In particular, was this conviction necessary in a democratic society? ( see , in particular, Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999 ‑ I, and Nikula v. Finland , no. 31611/96, § 48, ECHR 2002 ‑ II).