CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 28614/95                       by Ronald WARING, Juanita WARING                       and José Bernardo do CANTO E CASTRO                       against Portugal        The European Commission of Human Rights sitting in private on 9 April 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 12 September 1995 by Ronald WARING, Juanita WARING and José Bernardo de CANTO E CASTRO against Portugal and registered on 21 September 1995 under file No. 28614/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant is an Irish citizen born in 1918.   The second and third applicants are the first applicant's daughter, a British citizen born in 1944, and her husband, a Portuguese citizen born in 1942.        All applicants reside at present in London.        The facts of the case, as submitted by the applicants, may be summarised as follows.        The particular circumstances of the case        On 20 July 1995, the television station "TVI - Televisão Independente" broadcast at about 20.00 hours and as a part of its evening news a special programme called "Camarate : in search of the truth".   The programme concerned the events which had taken place at Camarate, a village close to the Lisbon airport, on 4 December 1980. On that day a former Portuguese Prime Minister, Mr. Francisco Sá Carneiro, had died, amongst other persons, in a plane crash.        In the course of this programme, interviews were made with Mr. J.M. and Mr. S.C. and a letter of Mr. F.S. was shown and read out by a reporter.   In the statements made, it was alleged that the applicants had been involved in an assassination plot which had the aim to blow up with a bomb the airplane used by Mr. Sá Carneiro and Mr. Adelino Amaro da Costa, then Minister of Defence.   The whole plot had allegedly been carried out by the third applicant and the material used for the making of the bomb, namely an explosive device, had allegedly been brought from London to Portugal by the second applicant and procured by the first applicant.   It was also said that the latter had at the time been a senior officer of the British secret service.        Subsequently, this information was widely diffused by "TVI" itself and by other media in Portugal and abroad.        On 4 December 1995, day of the fifteenth anniversary of Mr. Sá Carneiro's death, another programme was broadcast by "TVI" as a part of its evening news.   In the course of this programme, some excerpts of the film "Camarate : in search of the truth" were shown again.   The TV reporter concluded with a list of possible suspects of the bombing including the second and third applicants.   References were also made to criminal proceedings which had been brought by the relatives of the crash victims.        Criminal proceedings concerning the plane crash are currently pending.   The Public Prosecutor's Department (Ministério Público) decided not to bring charges while the relatives of the crash victims did bring a private prosecution against several persons, including the second and third applicants.        Relevant domestic law        Under the Press Act (Lei de Imprensa) of 1975 (Decree law no. 85- C/75 of 28 February 1975), which is applicable to the television by virtue of Sections 41 and 54 of the Television Act (Law no. 58/90 of 7 September 1990), press publishers and/or editors could be held criminally responsible for offences committed in the press (abuso de liberdade de imprensa), even in case of statements made by third persons (Article 26 of the Decree law no. 85-C/75).   Section 24 of this Act also provides for civil liability.        On 25 May 1995, the Parliament adopted Law no. 15/95 which amended the Press Act of 1975.   Section 26 of this Act now provides that press publishers and editors can no longer be held criminally responsible for statements made by persons being interviewed, if no doubt arises as to the identity of the author of the statements.        Section 24 of the Press Act concerning civil liability has not been amended.        Section 35 of the Television Act, which has not been amended, provides for the right of reply afforded to whoever considers himself the victim of an unlawful attack on his honour and good reputation.        On 14 March 1996, the Parliament adopted Law no. 8/96 which revoked Law no. 15/95. However, Article 26 of the Press Act as amended by this law remains in force.   COMPLAINTS        The applicants complain of the fact that Portuguese law does not provide them with the possibility to instigate a criminal prosecution against the persons responsible for the broadcasting of defamatory and untrue statements contrary to their good reputation and honour.        The applicants claim that this amounts to a violation of their right to respect for their private life as ensured by Article 8 of the Convention.   THE LAW        The applicants allege a violation of Article 8 (Art. 8) of the Convention in that the broadcasting of statements contrary to their good reputation and honour involved interferences with their private life which could not be remedied under Portuguese law.        Article 8 (Art. 8) provides as follows :        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The applicants contend that the impossibility of bringing criminal proceedings against the television station "TVI" is in breach of this provision in that they are thereby prevented from obtaining protection against defamation and attacks on their honour and good reputation.   They consider civil liability insufficient and inadequate to redress their complaints, because civil proceedings would be too long and expensive and without the deterrent effect generally needed in this kind of cases.        The Commission first notes that the events which gave rise to the present application pertain to the sphere of private life within the meaning of Article 8 (Art. 8) of the Convention (cf. No. 10871/84, Dec. 10.7.86, D.R. 48 p. 154).        The Commission next note that there is no question in the present case of any direct involvement by the respondent Government in the broadcasting of the relevant statements.   Nevertheless, it recalls that the obligation imposed by Article 1 (Art. 1) of the Convention to secure the effective enjoyment of Convention rights may involve positive obligations on a State and that these obligations may involve the adoption of measures even in the sphere of relations between individuals (cf. Eur. Court H.R., X. and Y. v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, paras. 22 and 23).        In this respect, the Commission recalls the previous case-law of the Convention organs according to which the way in which a High Contracting Party may meet such obligations is largely within its discretion (cf. Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 33, para. 67 and further references contained there).        Furthermore, it appears to the Commission that in the present case account also must be taken of the rights guaranteed by Article 10 (Art. 10) of the Convention, which ensures freedom of expression.   A fair balance between rights that can be contradictory must therefore be achieved.        In this connection, the Commission recalls that there are different ways   of ensuring "respect for private life", and the nature of the State's obligation will depend on the particular aspect of private life that is at issue (cf. above-mentioned X. and Y. v. the Netherlands judgment, p. 12, para. 24).   Recourse to the criminal law is therefore not necessarily the only answer.        As regards the protection of the right to enjoy a good reputation, the Commission recalls its previous case-law according to which this right must be considered to be a civil right within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, and considers that the protection of honour and good reputation can therefore be generally achieved by way of civil proceedings (cf. No. 808/60, Isop v. Austria, Dec. 8.3.62, Yearbook 5, pp. 108 et seq. ; No. 7116/75, Dec. 4.10.76, D.R. 7 p. 91).        In the present case, the Commission observes that Portugal has chosen to amend the Press Act in such a way that press publishers and editors will no longer be held criminally responsible for statements made by third persons in the course of an interview.   The Commission notes that this amendment has been adopted inter alia with the purpose of giving larger protection to the right to freedom of expression, guaranteed by Article 10 (Art. 10) of the Convention.        Concerning the means given to the applicants by Portuguese law to seek rehabilitation of their honour, the Commission first notes that they can institute criminal proceedings against the persons having made the relevant statements.        On the other hand, the Commission notes that it is possible for the applicants to bring civil proceedings for compensation against the television station.   It recalls that Article 24 of the Press Act concerning civil liability has not been amended.   The applicants' right to respect for their private life is not therefore wholly unprotected. They have the possibility of filing with the Portuguese courts an action for damages for pecuniary and/or non-pecuniary damages and can ask the court to declare that an unlawful attack on their good reputation and honour has occurred.   In this respect, the Commission considers that the applicants have failed to explain for what reasons this remedy would be unsuitable to protect their rights under Article 8 (Art. 8) of the Convention.   The cost and the length of these proceedings cannot constitute such reasons.        What is more, the applicants had the possibility of availing themselves of the right of reply provided by Article 35 of the Television Act, which they have not done.        Summing up, having regard to the aspects of the private sphere which were at stake in the present case, the Commission finds that the protection afforded by Portuguese law is sufficient to protect the applicants' rights under Article 8 (Art. 8) of the Convention.        It follows that there is no appearance of a violation of this provision.   The application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                          (S. TRECHSEL)