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Lawyers penalised for complaints about judges given remedy by ECtHR

8 October 2019

Two lawyers ordered to make financial payments to judges against whom they had brought complaints in the course of their professional duties, have won a ruling by the European Court of Human Rights that their right to freedom of expression had been infringed.

The lawyers, LP and Pedro Miguel Carvalho, both from Portugal, had been found liable for defamation (LP) and for attacking a person’s honour (Mr Carvalho) on account of documents drawn up in their capacity as representatives.

LP had sent a letter to the High Council of the Judiciary (HCJ) to complain about the conduct of Judge AA during a preliminary hearing and about certain procedural irregularities. In particular, he stated that he had noticed "an atmosphere of great familiarity between the judge and defence counsel". The HCJ decided to take no action on the complaint. Judge AA subsequently lodged a complaint for defamation against LP, alleging an attack on her reputation and honour. The Lisbon Court of Appeal ordered LP to pay €5,000 to the judge, finding that the accusations against her had overstepped the bounds of permissible criticism. LP’s appeals were unsuccessful.

Mr Carvalho had represented two persons of Roma origin who lodged complaints against Judge AF for defamation and racial discrimination on account of comments made by her in a judgment concerning them. After the case had been discontinued by the public prosecutor the same two persons, again represented by Mr Carvalho, brought a private prosecution for defamation, claiming €10,000 from the judge. This complaint was declared manifestly unfounded by the Guimarães Court of Appeal. In 2011 the judge brought a civil action against Mr Carvalho, arguing that in his capacity as representative he had knowingly lodged an unfounded criminal complaint against her. Mr Carvalho was ordered to pay €10,000 with default interest.

Relying on article 10 of the Convention (freedom of expression), the applicants complained of an infringement of their freedom of expression as lawyers. Their complaint was upheld by a committee of three judges.

In its judgment, which is final, the court noted that the interference with the lawyers' freedom of expression had pursued two legitimate aims: (1) protecting the reputation and rights of others and protecting judges; and (2) maintaining the authority and impartiality of the judiciary. Nevertheless, the court considered that the reasons given by the domestic courts to justify finding the applicants liable had been neither relevant nor sufficient and had not corresponded to a pressing social need. The interference had thus been disproportionate and had not been necessary in a democratic society.

It observed that both applicants had been acting in the performance of their professional duties as lawyers. L.P.’s complaint to the HCJ had drawn its attention to situations he considered abnormal, with the aim of defending his client’s interests. The criminal complaint and the private prosecution drawn up by Mr Carvalho had been aimed at prosecuting a judge for defamation and discrimination following allegations she had made against some of Mr Carvalho’s clients in a judgment convicting them.

LP’s accusations had been criticisms of the kind that judges could expect to receive in the course of their duties, without their honour or reputation being damaged as a result. The accusations had not overstepped the bounds of permissible criticism; they had been sent to the HCJ alone and had not been made public. Hence, the alleged damage to the judge’s reputation had been very limited.

The case against Mr Carvalho followed criminal proceedings which had received widespread media coverage owing to a judgment given by the judge in question against Mr Carvalho’s clients. However, the prosecution had not been successful. The court considered that Mr Carvalho had simply defended his client’s interests and did not see how he had failed to observe professional ethics. Furthermore, seeking to compel a lawyer to refuse instructions was liable to infringe the right of each individual to have access to a court.

Further, the penalties imposed had not struck the requisite fair balance between the need to safeguard the judges’ right to protection of their honour and the authority of the judiciary, on the one hand, and the applicants’ freedom of expression on the other. They had also been apt to have a chilling effect on the profession of lawyer as a whole, especially with regard to lawyers’ defence of their clients’ interests.

The court held Portugal liable to pay €5,300 to LP and €10,793.42 to Mr Carvalho in respect of pecuniary damage, together with costs and expenses. It also held that the finding of a violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage.

Click here to view the judgment (in French only).

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