Communicated on 1 st October 2014

FIRST SECTION

Application no. 70434/12 Manuel Luis SOUSA GOUCHA against Portugal lodged on 23 October 2012

STATEMENT OF FACTS

The applicant, Mr Manuel Lu í s Sousa Goucha , is a Portuguese national, who was born in 1954 and lives in Fontanelas . He is represented before the Court by Mr A. Milagre , 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.

The applicant is a well-known television presenter in Portugal.

On 28 December 2009, between midnight and 1 a.m., one of the channels of the national television service (RTP2) broadcasted a live talk-show. The programme was presented by F. and two famous people from the media were guests.

In the course of the programme, during a quiz, the following question ‑ identified as the most important in the quiz by the presenter - was asked to the guests:

“Q: Who is the best Portuguese female TV presenter?”

The possible answers to the question included the name of three female TV presenters and the applicant ’ s; the latter being the correct one.

On an unspecified date the applicant lodged a criminal complaint for defamation and insult against the State-owned television company RTP, the production company, the TV presenter, the director of programmes and the director of contents before the Lisbon Criminal Department for Investigation and Prosecution (domestic proceedings no. 1370/10.8 TDLSB). The applicant complained that they had damaged his reputation and dignity by including his name in the list of possible answers to the above question.

On 2 March 2011 the Public Prosecutor before the Lisbon Criminal Department discontinued the proceedings by adopting a decision in which he considered that the defendants had not intended to offend the applicant.

On an unspecified date the applicant sought to intervene in the proceedings as “ assistente ” to the Public Prosecutor and lodged private prosecution submissions ( acusa çã o particular ) before the Lisbon Criminal Investigation Court ( tribunal de instru çã o criminal ) against the defendants. The defendants challenged the applicant ’ s prosecution submissions by lodging an application for the opening of a judicial investigation ( requerimento de abertura de instru çã o ).

On 24 June 2011 the investigating judge responsible for the case dismissed the case ( despacho de n ã o pronúncia ):

1) in relation to the natural defendants the judge grounded its decision on the lack of sufficient evidence of the commission of the crimes of defamation and insults by the defendants. It stated, inter alia , the following:

“The fact is that the defendants at no time intended to make any consideration susceptible of offending his [ the applicant ’ s ] honour or consideration (...).

The “ assistente ” is a public figure and as such must be used to have his characteristics captured by comedians in order to promote humour; being of the public knowledge that they [ the applicant ’ s characteristics ] reflect a behaviour that is attributed to the female gender, such as his way of expressing himself, his colourful clothes that are proper from the female universe, and the fact that he has always lived in a world of women (see, for example, the programmes that he has always presented in television).”

2) with regard to the two defendants companies, the proceedings were discontinued pursuant to Article 11 of the Criminal Code which does not set criminal responsibility of legal persons for the crimes of defamation and insults.

The applicant appealed against the decision before the Lisbon Court of Appeal not to indict the natural defendants. On 17 April 2012 the applicant ’ s appeal was dismissed. The Court of Appeal upheld the Criminal Investigation Court ’ s decision. It stated that there were no sufficient elements allowing them to consider the commission of the crime of defamation by the defendants. In its decision the Court of Appeal cited the above quotation from the investigating judge ’ s decision of 24 June 2011 in order to consider that it ’ s analysis of the case

“ had balanced in a global and particularly sensible way the conflict of interests that had arose and the circumstantial environment in which it took place.”

It further considered that:

“... the expression used in a playful and irreverent context and within the normal style previously adopted by the television programme under consideration, even though one may consider it amusing, it does not reach the threshold required by Law for the protection of honour and consideration...”

B. Relevant domestic law

The Portuguese Criminal Code establishes the following with regard to the crimes of defamation and insults, respectively:

“ Article 180 § 1

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

Article 181 § 1

Anyone who insults another, by accusing him 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. ”

COMPLAINT

The applicant expressly invokes Article 14 of the Convention , and in substance Article 8, to complain that he has been discriminated against by the domestic courts on the grounds of his homosexuality which he turned public in 2008.

QUESTIONS TO THE PARTIES

1 . Is Article 8 of the Convention applicable to the matter complained of in the present case? In particular, did the alleged injury to the applicant ’ s reputation attain a sufficient level of seriousness and in a manner causing prejudice to the applicant ’ s personal enjoyment of the right to respect for private life for this provision to come into play ( Axel Springer AG v. Germany [GC], no. 39954/08 , § 83 , 7 February 2012 )?

2. If so, have the State authorities failed to fulfil their positive obligations under Article 8 to protect the applicant ’ s honour and reputation against the interference by third persons as part of the right to respect for private life (see A. v. Norway , no. 28070/06, § § 67-74 , 9 April 2009 ; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08 , § § 97-98 , ECHR 2012 )? In this regard , have they struck a fair balance between the TV programme ’ s freedom of expression under Article 10 and the applicant ’ s right to have his honour and reputation respected under Article 8 (see Von Hannover v. Germany , no. 59320/00, ECHR 2004 ‑ VI ; Axel Springer AG v. Germany [GC], no. 39954/08 , § 84 , 7 February 2012 ) ?

3. Has the applicant suffered discrimination on the ground of his sexual orientation contrary to Article 14 of the Convention, read in conjunction with Article 8?