Information Note on the Court’s case-law 248

February 2021

De Carvalho Basso v. Portugal (dec.) - 73053/14 and 33075/17

Decision 4.2.2021 [Section IV]

Article 8

Article 8-1

Respect for private life

Dismissal of criminal complaint against judges for statements forming part of judgment’s factual contextualisation and not attaining a threshold of seriousness: Article 8 inapplicable; inadmissible

Facts – The mayor of a municipal council, L.M., made statements in a public meeting and to a local newspaper about the applicant’s finances and the public subsidies that the applicant’s local association was entitled to receive. Although L.M. was initially convicted for defam ation, that judgment was later quashed by a Court of Appeal. The applicant unsuccessfully lodged a criminal complaint against the two judges who had sat on the Court of Appeal, claiming that the judgment had contained wording that amounted to a personal in sult to him.

Law – Article 8: The applicant complained about the arguments made by the two judges in the Court of Appeal when ruling on L.M.’s appeal against his conviction for defamation. The complaint was examined as part of the applicant’s right to pro tection of reputation under Article 8.

Firstly, the impugned statements had not concerned the particular judicial statements to which Article 8 had previously been applied: for example, a suggestion that the domestic court suspected the applicant of sexua lly abusing a child ( Sanchez Cardenas v. Norway , 12148/03, 4 October 2007); comments made in relation to a third party mentioned in the proceedings ( Vicent Del Campo v. Spain, 25527/13, 6 November 2018); clearly discriminatory remarks ( Carvalho Pinto de So usa Morais v. Portugal 17484/15, 25 July 2017); or disclosure of sensitive and personal medical or other private information ( L.L. v. France , 7508/02, 10 October 2006). The impugned statements regarding the applicant’s reputation had therefore not attained a certain level of seriousness in order for Article 8 to come into play.

Secondly, the statements had been part of the factual contextualisation of the judgment’s motivation and had fallen within a wider analysis of the various aspects forming the backgr ound of the case. In particular, the statement had referred to L.M.’s comments on the potential distribution of public funds to the applicant’s association, clarifying that it had been reasonable for the mayor to audit and comment on the adequate deploymen t and usage of those funds.

Lastly, the complaint raised the important issue of the protection of judicial independence, when judges were fulfilling their obligation to provide reasons, from losing parties who disagreed with the judgment delivered. Liabil ity proceedings against judges should only take place in exceptional circumstances and criminal proceedings, in particular, had to be avoided when there was no proper evidence suggesting that any criminal liability existed on the part of the judge, such as in the instant case.

In light of the foregoing, Article 8 was not applicable.

Conclusion : inadmissible (incompatible ratione materiae ).

The Court also found, unanimously, that the applicant’s complaint in relation to statements made by L.M. in a local newspaper was manifestly ill-founded, as the domestic courts had struck a fair balance between the applicant’s right to respect for private life and L.M.’s freedom of expression.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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