Legal restrictions that were only symbolic were difficult to reconcile with European Convention of Human Rights principles, Chief Justice Emeritus Vincent De Gaetano noted in a Strasbourg Court ruling.
Dr De Gaetano made the comment in a separate, concurring opinion annexed to a decision delivered by the European Court of Human Rights on Tuesday upholding journalistic freedom and, in particular, the ability to report court proceedings without let or hindrance.
A Portuguese private television network broadcast a documentary prepared by court reporter Sofia Pinto Coelho. This included a voice recording of witnesses testifying in open court. The recording was an official document made available to the parties. However, the voices were distorted by the reporter to protect their identity.
Ms Coelho felt the accused, an 18-year-old who had been sentenced to four-and-a-half years in prison for the theft of a mobile phone, had been wrongly convicted. When the TV programme was broadcast the trial was over.
Under the Portuguese Code of Criminal Procedure, no such voice recording could be published without the prior authorisation of the court. As Ms Coelho had not obtained such authorisation, she was prosecuted and fined €1,500 plus costs. She appealed but the ruling was confirmed.
The court reporter then unsuccessfully sought redress before the Portuguese Constitutional Court, arguing that the provision of law under which she was prosecuted violated the “freedom of the press” guaranteed by article 38 of the Portuguese Constitution.
The reporter argued before the European Court of Human Rights that her prosecution and conviction violated her rights under the Convention
She argued before the European Court of Human Rights that her prosecution and conviction violated her rights under article 10 of the European Convention. Highlighting the essential role of the press in a democratic society and noting that restrictions on the freedom of expression must comply with the exceptions in article 10(2) of the Convention, the Court held that the documentary dealt with a matter of public interest.
It reaffirmed that a journalist’s right to impart information and ideas came with a corresponding duty to act responsibly and, in principle, within the parameters of the law.
However it found that the Portuguese courts had failed to strike a proper balance between the protection of the right to freedom of expression of the reporter and the protection of the rights of others.
In particular, the Court held that the requirement of prior authorisation, without any temporal limitation, in the Code of Criminal Procedure, as well as the punishment inflicted upon the court reporter were not proportionate. Therefore, the interference with her freedom of expression was not necessary in a democratic society.
In his separate, concurring opinion, Dr De Gaetano, vice-president of the Court hearing the case, remarked that “this case and the Court’s decision that there was a violation of article 10 of the Convention are poignant reminders that legal prohibitions and restrictions which have only a symbolic (as opposed to an instrumental) function are difficult to reconcile with the principles underpinning, and with the freedoms enshrined in, the Convention.
“With reference to article 10 (2), in particular, the ‘authority of the judiciary’ cannot be construed as a self-serving principle detached from the factual situation.”
He noted that the Portuguese authorities “did not specifically invoke the need to maintain the ‘authority of the judiciary’. But even if they had, the upholding of such an ‘authority’ must, in the concrete circumstances of a particular case, be proved to serve some practical purpose linked to the proper administration of justice. In other words, the prior authorisation, which the applicant failed to obtain, must be shown to serve not just the abstract notion of the ‘authority’ of the court or of the judiciary but must be shown to be reasonably required for the proper administration of justice in the particular case. This was not shown to be the case here.”
The Strasbourg-based court or-dered the Portuguese government to pay the journalist €6,050 by way of material and moral damages and €4,623 in costs and expenses.
Find the full text of the judgment, available in French only, at http://hudoc.echr.coe.int/eng?i=001-161523 .