European Court. Portugal convicted of violating freedom of expression

The European Court of Human Rights (ECtHR) this Tuesday condemned Portugal for violating freedom of expression, imposing the payment of 1,510 euros to a journalist after being convicted of violating judicial secrecy in the “secret case”.

According to the decision of the court based in Strasbourg, the case dates back to February 2012, when journalist Cristina Ferreira, from Público, revealed that the authorities had seized the computers of two former spies then working for the company Ongoing, “in a criminal investigation about high-level corruption, illegal access and abuse of power” which was under judicial secrecy between August 2011 and May 2012.

The journalist was sentenced by the court in March 2017 to a 100-day fine, corresponding to a value of 1,000 euros.

The sentence was confirmed in December of that year by the Lisbon Court of Appeal, which led to the filing of a complaint for violation of freedom of expression.

The ECtHR highlighted that the article published by Cristina Ferreira “was a matter of considerable public interest” and that the case and its suspects had already been previously reported, meaning that Portuguese justice should have taken this circumstance into account.

“It is questionable whether, taking into account the media coverage of the case, the facts under investigation and its political relevance, it was still necessary to prevent the disclosure of information that, at least in part, was already in the public domain. Furthermore, the court notes that the national authorities have not demonstrated how, in the circumstances of the case, the disclosure negatively affected the judicial investigation”, the decision reads.

For the European court, Portuguese justice limited itself to a “formal and automatic application of the crime of violating judicial secrecy”, without taking into account what was already known about the case and the supposed impact on the investigation of the disclosure of that information.

“In these circumstances, the protection of information by virtue of its secret nature cannot constitute an imperative requirement,” said the judges, concluding: “The court considers that the appellant’s conviction constituted a disproportionate interference with her right to freedom of expression and that , therefore, was not necessary in a democratic society”.

The ECtHR recognized the violation of the journalist’s freedom of expression by national court decisions, imposing on the Portuguese State the payment of 1,000 euros in pecuniary damages and a further 510 euros to cover the costs of this process, for a total of 1,510 euros.