CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 janvier 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s15BDF7F4 { font-family:Arial; color:#1f497d } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB95D6361 { font-family:Arial; color:#c00000 } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s2BBCBE56 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-0.2pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5830ECD9 { width:0.2pt; display:inline-block } .sB82DB088 { width:208.46pt; display:inline-block } .sDEA786DA { width:210.67pt; display:inline-block }       FOURTH SECTION               CASE OF TAVARES DE ALMEIDA FERNANDES AND ALMEIDA   FERNANDES v. PORTUGAL   (Application no. 31566/13)               JUDGMENT       STRASBOURG   17 January 2017   FINAL   29/05/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   András Sajó, President,   Nona Tsotsoria,   Paulo Pinto de Albuquerque,   Krzysztof Wojtyczek,   Egidijus Kūris,   Iulia Motoc,   Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 13 December 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 31566/13) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Portuguese nationals, Mr José Manuel Tavares de Almeida Fernandes (“the first applicant”) and Mrs Maria Gabriela Neves Rebelo Cabrita Simão de Almeida Fernandes (“the second applicant”), on 10   May 2013. 2.     The applicants were represented by Mr F. Teixeira da Mota, a lawyer practising in Lisbon. The Portuguese Government (“the Government”) were represented by their Agent, Ms M. F. da Graça Carvalho, Deputy Attorney General. 3.     The applicants alleged a breach of the right to freedom of expression, as guaranteed by Article 10 of the Convention. 4.     On 9 November 2015 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicants are husband and wife. They were both born in 1957 and live in Colares. A.     The context of the case and the article in question 6.     The first applicant is a well-known journalist in Portugal. At the time in question he was the editor of the daily newspaper Público . 7.     On 29 September 2006 the newspaper published an editorial written by the first applicant entitled “The strategy of the spider” ( “A estratégia da aranha” ); the editorial addressed the election of the President of the Supreme Court of Justice, which had taken place the day before. The article expressed the first applicant’s opinion of the newly elected President, Judge N.N., and on what his election meant for the Portuguese judicial system. The first applicant’s editorial reads as follows: “The strategy of the spider N.N., the man who will be presiding over the Supreme Court, represents the dark side of our judiciary. Do you want a symbol, a representative, an exemplar of the wrongs of the Portuguese judicial system? That’s easy: simply mention the name of N.N. and all the wrongs you can think of regarding corporatism, conservatism, atavism, manipulation, games of shadows and influence immediately spring to mind. The judge – because we are talking about a judge – is a man as intelligent as he is Machiavellian. For years, first in the Trade Union Association of Judges [ Associação Sindical dos Juízes ], then [as a member of] the High Council of the Judiciary [ Conselho Superior da Magistratura – hereinafter “the HCJ”], and lastly [sitting on] the Supreme Court of Justice, this person – of whom the majority of Portuguese people have never heard – has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word, but I will avoid it) which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking: the presidency of the Supreme Court of Justice. The position is not worth very much (who, among the readers, knows that the current president of that court is, formally, the fourth-highest-ranking figure of State?). It carries some sinecures, perhaps some perks ... but it has little effective power. The problem, however, lies in this question: has, or will have [effective power]? The gentlemen judges, who some time ago engaged in a dispute with [the judges of] the Constitutional Court to determine who occupied the more important place in the hierarchy (those of the Supreme Court won ... but gave to those of the Constitutional Court the consolation of having at their disposal a high-end car ...) aren’t even much respected. [That is] their own fault, as it is known that they occupy their seats in the Supreme Court only for some months in order to beef up their pensions. The president of that giant college of most reverend judges has had little power; [however,] ... N.N. presented himself to the voters – that is to say, to his peers, and those whom he helped to promote to a position from which one day they would be able to elect him – under the kind of manifesto which makes the hair of the most peaceful citizen stand on end. The man didn’t do this out of the goodness of his own heart: at the same time that he was acting as a trade unionist (he asked for an increase in his salary and that less work be given to judges ...) he acted as someone who wanted to overthrow the regime (by wanting to sit on the Council of State [ Conselho de Estado ]) and added the glittering (due to the amount of accumulated tallow) hat of “resister” of reforms in the judicial sector. If it was advisable for a President of the Supreme Court to pay greater attention to Montesquieu and the principle of the separation of powers than to the playbook of the CGTP [General Confederation of Portuguese Workers], N.N. did exactly the opposite. He laid out his demands in the grandiose manner of a steelworker in a futuristic “socialist realism” painting, forgetting that he is a judge and the highest representative of the third [branch of government], the judiciary, and claimed a place at the table of the “first [branch]”, the executive. It is true that the power of the Council of State is as innocuous as the plume of being president of the Supreme Court, but the claim has in itself two perversities. Firstly, it is a sign that N.N. cares more about his public prominence than the problems of justice. Secondly, and much more serious, the man is volunteering himself to be the face of a group of judges [that is] against the reforming decisions of those holding political power which are currently the subject of a broad consensus between the government party and the main opposition force. It is so pathetic as to make one laugh, were we not in Portugal and if we did not understand how the strategies of the spiders work. The man, I believe without fear of contradiction, is so intelligent and skilful as to be dangerous. But he already has an opponent: the new Attorney-General of the Republic, P.M., one of the rare people to have had the courage to stand up to him.” 8.     There was coverage of the election in the days preceding and following it in various articles in the national press. One of those articles, published in Público on 6 August 2006, was an interview with a member ( juiz conselheiro ) of the Supreme Court of Justice, P.M., who had severely criticised the electoral system for the post of President of the Supreme Court of Justice. The relevant parts of the interview read as follows: “... Q.: Why don’t you agree with the current system of electing the President of the Supreme Court of Justice (SCJ)? P.M.: One of the functions of the High Council of Judiciary (HCJ) is the grading of judges who rise to the post of member of the SCJ. How do they get to the Supreme Court? Through a competition, and an assessment of their work by the members of the HCJ. Among those members there is a president of judges who, obviously ... has a certain degree of control over [those judges]. It does not cross anyone’s mind that they aren’t people whom he trusts ... and I myself am not questioning those people. What is at stake is the system. Q.: Because it creates inequality, is that it? P.M.: Just look at what happens. The Vice-President of the HCJ is one of the key figures in the choosing of members of the SCJ. That man should never be able to run [for elections to the SCJ] because those who are going to elect him are those whom he has graded. Q.: Are you saying it is a distorted system [ sistema viciado ]? P.M.: It is a distorted system ... It is not the people – they are all serious and honest; the problem is the system itself. Q.: Do you support a change to the rules of [elections] to the post of President of the SCJ? P.M.: Yes; the way these [elections] work raises doubts and questions. It is an election which has the appearance of being distorted. Whether it is, I don’t know ... But it is clear that if [a person] has a key role in the admission of A or B to an [organisation], then when [that person] has a vote he is going to vote for the person who admitted him.” 9.     Between 2001 and 2006 several articles on the system of elections to the post of President of the Supreme Court of Justice were published in the media within the context of elections held within that period. Some of these articles called the system into question. For example, on 13   July   2004, Diário de Notícias published an article, written by L.L. and entitled “Grading of judges may involve a strategy of power” ( “Graduação de juízes pode envolver estratégia de poder” ), for which he had interviewed a judge who had challenged the 2004 [competition] to the Supreme Court and who had made allegations that Judge N.N. had been behind the alleged strategy. In that article, L.L. made reference to a document circulating among judges in which it was alleged that “N.N. prepared the grading of judges in order to secure a sufficient number of votes for him to be elected as President of the SCJ in the next election.” B.     The civil proceedings against the applicants 10.     On 7 December 2007 Judge N.N. brought an action in the Lisbon Civil Court against the applicants for defamation. He sought non-pecuniary damages amounting to 150,000 euros (EUR). The applicants contested the action against them and argued that the second applicant should not have been a party ( ela era parte ilegítima ) in that she had neither benefited from the article nor had had previous knowledge of it. In fact, the second applicant had not participated at all in the writing or publication of the first applicant’s article; the civil proceedings for defamation had been instituted against her on the basis of Articles 1691 and 1695 of the Portuguese Civil Code. 11.     During the proceedings the first applicant attempted to prove, inter alia , (i)     that he had based his opinion on the different articles that had been published in the media on the elections to the Supreme Court of Justice, on information obtained from a source whose identity was confidential, and on conversations he had had with different people from the judiciary (including judges who had challenged the results of the competition for posts as judge in 2004); (ii)     that the article concerned an issue of public interest; and (iii)     that he had written it in good faith. In this regard, several witnesses, including journalists and people from the judiciary ( comunidade judiciária ), were heard. The relevant statements read as follows: (i)     M.P., chairman of the Bar Association from 2007 to 2013, with whom the first applicant talked, mentioned that he had had conversations with Judge N.N.’s opponents, who had made references to the methods Judge N.N. used to obtain what he wanted; (ii)     M.J., a former President of the Bar Association, considered that the first applicant had made a political criticism and that he had not intended to attack the man personally but rather in his capacity as a politician and in terms of his way of engaging in politics and of his career, which had been based on trade unionism; (iii)     L.L. mentioned that he had contacted, regarding the article he had written, different people from the judiciary (judges who had raised suspicions regarding the competition to the Supreme Court, judges from the trade union association of judges, and prosecutors) about Judge N.N. and the system of elections to the Supreme Court; he also acknowledged that he had not talked with members of the HCJ or with Judge N.N. about the issue. 12.     On 13 November 2009 the Lisbon Civil Court found for the plaintiff. It considered that the article in question had damaged the plaintiff’s reputation and that the expressions used by the first applicant had been disproportionate and had clearly exceeded the limits on freedom of expression. It considered that the article had diminished public confidence in Judge N.N. and in the High Council of the Judiciary, thus damaging his honour and reputation. The first applicant was ordered to pay EUR 35,000 in compensation for non-pecuniary damage. With regard to the second applicant, the Lisbon Civil Court held that under Article 1692 of the Civil Code she should not have been a party to the proceedings and that the compensation amount due arose from an action only attributable to the first applicant. The relevant parts of the judgment read as follows: “... The editorial is ... the responsibility of its editors ..., appears in each edition of the publication and focuses on the most important events of the day or of that edition and aims to comment, analyse, urge – in sum, form opinion. ... The editorial in question was published on 29 September 2006 – the day immediately following the plaintiff’s election as President of the Supreme Court of Justice. The established facts demonstrate to us that the plaintiff, as a member of the Supreme Court of Justice, applied for the post of president of that court and was elected with 53 votes out of a possible 72 votes, which means that he was elected by 73.6% [of the possible votes]. This is the context of the editorial. ... [The editorial examines] the plaintiff on two levels: how he, allegedly, managed to achieve the electoral results; and his electoral programme as a candidate for election to the presidency of the Supreme Court. With regard to the first topic ... in [the editorial] there is no expression of any value judgment. It is stated as a fact – as a manner of behaviour on the part of the plaintiff: that the plaintiff helped those who elected him to rise to the post of member of the Supreme Court of Justice, given the function that he exercised throughout his life as a union leader and as both a member and Vice-President of the High Council of the Judiciary. The essential aim was to state that throughout his life, the plaintiff had pursued a strategy [to attain power] which had built a college of electors in which he could have confidence, [pursuing that aim] via the functions he had exercised, particularly [during his time at] the HCJ. It is true that the plaintiff was leader of the trade union association of judges, a member of the HCJ between 1989 and 1990 (and Vice-President between 2001 and 2004) and on 28 September 2006 was elected President of the Supreme Court. ... The defendant did not prove the veracity of this allegation. The defendant further argues that the opinion expressed in the editorial was based – given the lack of transparency of the whole procedure – on his knowledge of the ongoing public debate about the election of the President of the Supreme Court of Justice, of the functioning of the High Council of the Judiciary, and of the plaintiff. ... In the instant case it is established that when the defendant wrote the editorial, he was familiar with the news and opinions mentioned in documents [contained in the case file] ... and had talked to people. The facts established concern the publication of several articles on the above-mentioned topics ... However it is not understood how or to what extent these articles allowed the applicant to reach the conclusion that: “For years, first in the trade union association of judges then [as a member of] the High Council of the Judiciary, and lastly [sitting on] the Supreme Court of Justice, this person – of whom the majority of the Portuguese have never heard – has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word but I will avoid it) which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking: the presidency of the Supreme Court of Justice. ... In the light of the above, there is nothing which allows us to reach the conclusion that the defendant had determined the veracity of his comments [by means of accessing] credible, diverse and verifiable sources of information. ... [With regard to the plaintiff’s] electoral programme as a candidate in the election of the President of the Supreme Court of Justice ... [t]he statements he made in support of that programme] have some factual basis. In fact, it was proved that in the letter he distributed to his colleagues, the plaintiff, as a candidate for the presidency of the Supreme Court, defended the enshrinement – through a constitutional revision – of the President of the Supreme Court as a permanent member of the Council of State, as well as the improvement in a timely manner, consistent with the economic situation of the country, of the remuneration of members of the Supreme Court of Justice. The plaintiff’s opinions may be – and in a democratic state are – subject to criticism, even more so when they are expressed within the context of his candidacy in the election of the President of the Supreme Court of Justice. ...” 13.     On an unknown date, both the first applicant and Judge N.N. lodged appeals against the first-instance judgment with the Lisbon Court of Appeal. The first applicant argued, inter alia , that the judgment of the Lisbon court had breached his freedom of expression and should therefore be overturned. He further contended that the compensation amount that he had been required to pay was extremely high and contested some of the facts that had been established by the court. He argued that he had obtained some information only on condition that the source providing that information would remain anonymous. 14.     In his appeal Judge N.N. argued that the level of compensation should have been set at a higher amount and that the second applicant should have been considered a party to the proceedings. 15.     On 9 November 2010 the Lisbon Court of Appeal upheld the first-instance judgment. It held that some of the first applicant’s comments had not exceeded the limits on freedom of expression, but that most of the content of the article had constituted an attack on Judge N.N.’s honour, honesty and reputation. The Court of Appeal emphasised that the first applicant had exceeded his right to criticise and inform. It further considered that the first applicant had not been able to prove in the proceedings the veracity of some of the allegations made in the article, even though they had been based on previous articles published in the Portuguese media about Judge N.N. and his election as President of the Supreme Court of Justice. With regard to the facts, the Lisbon Court of Appeal considered that the facts had been correctly established. 16.     The Lisbon Court of Appeal ordered the applicants jointly to pay Judge N.N. EUR   60,000, plus interest, in compensation for non-pecuniary damage. It considered the second applicant to be a legitimate party to the proceedings and, with regard to her, it based its decision on the fact that the applicants were married under the community property system ( regime de comunhão de adquiridos ) and she did not have any source of income and that therefore, under the Portuguese Civil Code, the income earned by the first applicant as a journalist and editor of a newspaper directly benefited both of them. 17.     On an unknown date in November 2010 the applicants and Judge N.N., respectively, lodged an appeal and a cross-appeal ( recurso subordinado ) against that judgment with the Supreme Court of Justice. 18.     On 15 December 2011 the Supreme Court of Justice declined to examine the applicants’ appeal. It considered that the judgment of the Lisbon Court of Appeal had not clearly identified all those facts which it had considered to be proven; this made it impossible for the Supreme Court to hear the appeal. The Supreme Court ordered that the case be remitted to the Lisbon Court of Appeal in order for it to correct its statement of facts; this would enable the Supreme Court of Justice to analyse the points of law that had been raised. 19.     On 13 November 2012 the Lisbon Court of Appeal delivered a new judgment in which it upheld its previous judgment of 9 November 2010. As to the facts, the Lisbon Court of Appeal considered, inter alia , the following to have been established: (i)     the plaintiff had been the only candidate for the post of President of Supreme Court of Justice and had previously been a member and the Vice-President of the High Council of the Judiciary; (ii)     several articles had been published in the press and in blogs (in the periods preceding and following the election) about Judge N.N. and his electoral programme and past elections for the presidency of the Supreme Court of Justice; (iii)     on 6 August 2008 the newspaper Público had published an interview with P.M., a member of the Supreme Court of Justice , in which he had questioned the system of elections to the post of President of the Supreme Court of Justice on the grounds that it could be distorted in so far as the HCJ’s functions included the grading of judges who ascended to the post of member of the Supreme Court; (iv)     with regard to a past competition to the Supreme Court of Justice, the daily newspaper Diário de Notícias had, in 2004, published two different articles in which it had raised questions about the grading of judges by the HCJ and the possible power strategy involved; in one of the articles (for one of which a judge of a Court of Appeal who had participated in the competition had been interviewed and for which a document known to judges had been consulted) it had been mentioned that Judge N.N. had already mustered support for his election in the next elections for the post of President of Supreme Court; (v)     in 2001 Público had published an editorial [by the then editor] criticising the system of electing the President of the Supreme Court and of HCJ judges; with regard to the latter, criticism was made of Judge N.N.’s lobbying on his own account of while exercising his functions as union leader; (vi)     the first applicant’s editorial had received both positive and negative comments in the press and in blogs; (vii)     the first applicant had had knowledge of the different articles which had been published in the media before the elections and had spoken to different people about them, Judge N.N. and the functioning of the HCJ. 20.     As to the analysis of the merits of the case, the relevant parts of the judgment read as follows: “... In the present case, it is important to take into account [the fact] that the person referred to in the ... text written by the defendant is a public figure, being the fourth-highest-ranking figure of State: the President of the Supreme Court of Justice. Despite his being a public figure, and therefore more liable to [be the target of] public criticism, his honour is still protected ... ... ... [I]t is important to emphasise that it appeared in the period which followed the election of the President of the Supreme Court of Justice by his peers. ... ... the text does not affect the plaintiff only as a public figure but also in his strictly personal sphere. In fact, starting with the latter, the expressions “which enabled him yesterday to stick into his somewhat tousled mane the peacock feather he has been lacking” and “... and added the glittering (due to the amount of accumulated tallow) hat of ‘resister’ of reforms in the judicial sector” seem to manifestly extend beyond the right to inform and to criticise, attacking the plaintiff’s personal dignity within his private sphere ... ... In sum, the above-mentioned segment [of the editorial article] exceeds the proportionality inherent in the legitimate purpose of debate and critical information ... That is not the case when the defendant attributes corporatism, conservatism and atavism to the plaintiff. ... ... [T]hese expressions fall within the scope of what has to be borne by a public figure   ... ... Let us now analyse the passages where it is said that we face a man and judge who “has been weaving a web of connections, of back-scratching, of favours and undertakings (there is an even worse word but I will avoid it)” and who “presented himself to the voters – that is to say, to his peers, and those whom he helped to promote to a position from which one day they would be able to elect him”. ... ... [T]he above-mentioned passages put into question the professional ethics of the plaintiff in the exercise of his functions... ... However in the instant case there was no proof given of the allegations against the plaintiff; on the contrary, ... the right to inform was exceeded.” 21.     With regard to the amount awarded to Judge N.N. in pecuniary damages, the Lisbon Court of Appeal held as follows: “In the instant case, the non-pecuniary damage, reflected in the violation of the right to a good name and the reputation of the plaintiff, given its severity ... had ... a negative impact in the personal sphere, including his family and professional circle, of the plaintiff. ... Besides that, and this is the decisive point for the determination of the amount to be awarded, the piece written by the defendant, despite the degree of offence and suffering [caused to] the plaintiff, was not an obstacle to his re-election by a large majority (larger than that previously, as everybody knew) to the same post. As such, the severity of what the defendant wrote did not have an impact on the professional future of the plaintiff ... In this context, it is also important to take into account the average amount ascribed to the value of life under the case-law of the Supreme Court of Justice (which is nowadays increasing): EUR 60,000. In the light of the above, and under the applicable legal framework, it is appropriate to award the amount of EUR 60,000.” 22.     On 21 November 2012 and 6 December 2012 Judge N.N. and the applicants respectively lodged with the Supreme Court of Justice an appeal and a cross-appeal against the judgment of the Lisbon Court of Appeal. On 25 January 2013 the applicants submitted their grounds of appeal. They complained, inter alia , that the judgment of the Lisbon Court of Appeal of 13 November 2012 was in breach of freedom of expression and that the amount which they had been ordered to pay as compensation to Judge N.N. was excessive. 23.     On 22 February 2013 the appeals before the Supreme Court of Justice were discontinued on the ground that Judge N.N. had not submitted any grounds of appeal ( julgado deserto o recurso e caducado o recurso subordinado ). As a consequence, the applicants were unable to challenge the outcome of the judgment of the Lisbon Court of Appeal of 13   November   2012. II.     RELEVANT DOMESTIC LAW A.     The Constitution of the Portuguese Republic Article 26 § 1 “Everyone shall possess the right to a personal identity, to the development of their personality, to civil capacity, to citizenship, to a good name and reputation, to their own likeness, to speak out, to protect the privacy of their personal and family life, and to legal protection against any form of discrimination.” Article 38 “1.     Freedom of the press is guaranteed. 2.     Freedom of the press implies: a)     Freedom of expression and creativity on the part of journalists and other staff, as well as journalists’ freedom to take part in deciding the editorial policy of their media entity, save when the latter is doctrinal or religious in nature; b)     That journalists have the right, as laid down by law, of access to sources of information and to the protection of professional independence and secrecy, as well as the right to elect editorial boards; c)     The right to found newspapers and any other publications without the need for any prior administrative authorisation, bond or qualification. ...” B.     The Portuguese Civil Code Article 70 “The law protects individuals against any unlawful interference or threat of harm to their physical or moral personality.” Article 484 “Anyone who states or spreads [knowledge of] a fact that is capable of harming the reputation of another natural or legal person is liable for damages.” Article 1691 “1.     [The following] are the responsibility of both spouses: ... c)     Debts incurred during the marriage by the administrator spouse [ cônjuge administrador ] for the common profit of the couple and within the limits of his or her powers of administration. ...” Article 1692 “[The following] are the sole responsibility of the spouse to which they relate: ... b)     Debts arising from crimes and compensation, restitution, court fees or fines arising from facts attributable to both spouses, unless such facts, implying purely civil liability, are covered by paragraphs 1 or 2 of the previous article. ...” Article 1695 “1.     In respect of debts which are of the responsibility of both spouses it is possible to resort to the common property of the couple or, in the absence or lack of [such property] ... the personal assets of either spouse.” C.     The Code of Civil Procedure 24.     The relevant provisions of the Code of Civil Procedure, in the [wording] applicable at the material time (Legislative Decree no.   329-A/95 of 12   December 1995), provided: Article 682 “1.     If both parties succeed on some and fail on other heads, each will have to appeal in order to secure the amendment of the part of that decision which he or she considers to be unfavourable; however any appeal lodged by either of them may, in that case, be independent or a cross-appeal. 2.     An independent appeal must be lodged within the normal time-limit and terms; a cross-appeal may be lodged within 10 days of the notification of the decision admitting the other party’s appeal. 3.     If the first [person to lodge an appeal] withdraws that appeal or if it is without effect or if the court does not examine it, the cross-appeal expires; the costs shall all be borne by the main appellant. ...” Article 685 “1.     An appeal shall be lodged within 10 days of the notification of the decision [in question] ...” D.     The Regulations on the State Attorney’s Office 25.     The relevant provision of the Regulations on the State Attorney’s Office ( Estatuto do Ministério Público ), adopted by Law no.   47/86 of 15   October 1986 and as amended by Law no. 9/2011 of 12 April 2011, reads as follows: “... 2.     As President of the Office of the Attorney-General ( Procuradoria-Geral da República ), the Attorney-General of the Republic ( Procurador-Geral da República ) shall: ... b)     manage, coordinate and exercise the supervision of the activity of the State Attorney’s Office ( Ministério Público ) and issue directives, orders and instructions to be followed by magistrates in the exercise of their functions. ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 26.     The applicants complained that the judgments given in the case were in breach of freedom of expression. In particular, they claimed that the amount awarded to the plaintiff as compensation for non-pecuniary damage was disproportionate and had had a chilling effect on the exercise of freedom of opinion. They relied on Article 10 of the Convention, which reads as follows: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A.     Admissibility 1.     Whether the second applicant is a “victim” (a)     The parties’ observations 27.     The Government contested the second applicant’s locus standi under Article 34 of the Convention. 28.     They acknowledged that she had been directly affected by the decision of the Lisbon Court of Appeal ruling that she should, jointly with her husband, pay compensation to Judge N.N. However, despite the pecuniary consequences which that judgment may have had for the second applicant, the domestic courts had not interfered with her freedom of expression. The impugned article had been written by the first applicant and the second applicant had not contributed to it in any way. Therefore, and given that Article 10 was a personal and non-transferable right, the second applicant could not claim to be a victim under Article 10 of the Convention. 29.     The applicants contested that assertion. They contended that the second applicant had been subject to an order to pay compensation for something which had been written by her husband. Given the situation, one could not fail to consider that the freedom of expression of the first applicant encompassed that of his spouse, given that she had been considered jointly responsible for it. Therefore, the second applicant had been the victim of a violation of Article 10 of the Convention for the purposes of Article 34. (b)     The Court’s assessment 30.     In the instant case, the Court firstly notes that civil proceedings for defamation were also instituted against the second applicant and that she was considered to be a legitimate party to the proceedings by the Lisbon Court of Appeal (see paragraphs 6 and 16 above). By a judgment of 13 November 2012 the Lisbon Court of Appeal ordered the second applicant, together with the first applicant, to jointly pay EUR   60,000 to Judge N.N. on account of the attack on his honour and reputation constituted by the article (see paragraph 19 above). The Court notes that in making her complaint under Article 10 the second applicant denied that she had knowledge of the article, and that she was involved in its writing and publication. 31.     In the light of the above, the Court considers that the second applicant has not exercised her right of freedom of expression and that consequently she has not made out a prima facie case that her right of freedom of expression was interfered with (see, mutatis mutandis , Kasparov and Others v. Russia , no. 21613/07, § 72, 3 October 2013). 32.     In these circumstances, the Court holds that the second applicant cannot claim to be the “victim” of a breach of her rights under Article 10 of the Convention. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4. 2.     Whether the first applicant has exhausted domestic remedies (a)     The parties’ observations 33.     The Government argued that the first applicant had failed to exhaust the available domestic remedies in that he had not lodged an appeal with the Supreme Court of Justice challenging the ruling of the Lisbon Court of Appeal of 13 November 2012 on the merits and with regard to the level of non-pecuniary damages that they were ordered to pay. For the Government the appeal would have been the most adequate and most potentially effective remedy in the case. They argued that the cross-appeal relied on the admissibility of the appeal; however, they did not question its effectiveness. They considered that by not lodging an independent appeal within the time-limit established by law the first applicant had not exhausted the most adequate remedy (that is to say he had not sought revision of the judgment). 34.     The first applicant argued that he had exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention by lodging a cross-appeal with the Supreme Court of Justice, despite the fact that the court had not issued a judgment on the merits of the case. He argued that he had missed the time-limit established by law to lodge an appeal; however, the law still allowed him to challenge the judgment by means of a cross-appeal. He therefore contended that the cross-appeal had constituted a legitimate remedy and would have allowed the Portuguese State to deliver a final judgment on the merits, which did not happen because Judge N.N. had lost interest in pursuing the appeal. (b)     The Court’s assessment 35.     The Court reiterates that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 115, 23 February 2016, and Gherghina v. Romania [GC] (dec.), no. 42219/07, § 84, 9 July 2015). 36.     The obligation to exhaust domestic remedies therefore requires applicants to make normal use of remedies which are available and sufficient in respect of their Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (ibid, §   85, with further references). 37.     The Court has also established that, if more than one potentially effective remedy is available, an applicant is only required to have used one remedy of his or her own choice (see Göthlin v. Sweden , no. 8307/11, §   45, 16   October 2014). 38.     Turning to the facts of the present case, the Court notes that Portuguese legislation provides for two possible ways of lodging an appeal with the Supreme Court of Justice (under Articles 682 and 685 of the Code of Civil Procedure – see paragraph 24 above). It further notes that Judge N.N. also made use of a cross-appeal when the applicants challenged the judgment of 9 November 2010 of the Lisbon Court of Appeal before the Supreme Court of Justice (see paragraph 17 above). The analysis of the merits by the Supreme Court of Justice was hindered because the Lisbon Court of Appeal had not clearly identified all the facts which it had considered to have been proven (see paragraph 18 above). 39.     The Court notes that in order to challenge the judgment of the Lisbon Court of Appeal of 13 November 2012, the first applicant made use of one of the two available avenues foreseen in Article 682 of the Code of Civil Procedure (see paragraph 24 above); before the Supreme Court he argued that the judgment of the Lisbon Court of Appeal was in breach of his right to freedom of expression and contested the amount which he and the second applicant had been ordered to pay as compensation (see paragraph   22 above). That appeal was discontinued on the ground that Judge N.N. had not submitted any grounds of appeal (see paragraph 19 above); had it not been the case his cross-appeal would have been analysed by the Supreme Court. As a consequence the first applicant was left with no avenues of appeal. 40.     In the light of the above, it follows that, in the instant case, the first applicant must be considered to have exhausted domestic remedies and the Government’s objection must accordingly be dismissed. 3.     Conclusion as to admissibility 41.     The Court notes that the first applicant’s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ arguments 42.     The first applicant submitted that the text in question constituted an opinion article. Specifically, it was an editorial article which had been written by the editor of the newspaper and it concerned an issue of public interest. 43.     The first applicant contended that the opinion expressed had only concerned N.N.’s political and union career within the judiciary. He argued that the article had aimed to express his opinion on the meaning, in political terms, of the election of N.N. – a judge who had always engaged in political action. Referring to the case of Hrico v.   Slovakia (no. 49418/99, 20 July 2004), he pointed out that a distinction should be made between criticism of a judge acting in the exercise of his functions and criticism of a judge engaging in such political and union-related activity. 44.     He further pointed out that the impugned article was an opinion article and not an informative one; therefore, what it had expressed could not be considered as being either true or false. His criticism had a factual basis, including the stated opinion of different judges. He acknowledged that the criticism had been harsh and assertive, but maintained that it had concerned an issue of public interest and had been sufficiently reasoned and thus protected by Article 10 of the Convention. 45.     Lastly, the first applicant submitted that the extremely large amount he and the second applicant had been ordered to pay by the domestic court had been in itself punitive and had had a chilling effect on the exercise of freedom of expression. 46.     The Government acknowledged that there had been an interference with the first applicant’s right to freedom of expression. They further submitted that that interference had been based on Article 484 of the Civil Code. The legitimate aim pursued by the authorities had been the protection of the reputation of others and the authority and impartiality of the judiciary, as provided by the second paragraph of Article 10 of the Convention. 47.     In the Government’s view, the first applicant’s article had aimed to attack N.N. in his capacity as a judge. The attack had concerned the independence and honour of judges and been aimed at undermining the public’s confidence in the judiciary. 48.     As regards the amount of compensation the applicants had been ordered to pay, the Government conceded that it was not insignificant. However, they pointed to the civil nature of the sanction imposed and considered that it had been justified by the impact that the editorial had had on N.N.’s position in the legal community. 49.     Lastly, the Government maintained that the domestic courts had considered that the first applicant’s criticism of N.N. had been excessive and unfounded in that the applicant had not limited himself to expressing an opinion but rather had stated “facts” which had had no basis in reality. 2.     The Court’s assessment 50.     The parties do not dispute that the domestic courts’ judgments amounted to an “interference” with the first applicant’s exercise of his right to freedom of expression. 51.     The Court also finds that the interference complained of was prescribed by law, namely Article 483 of the Civil Code, and pursued the legitimate aim referred to in Article 10 § 2 of the Convention, namely “the protection of the reputation or rights of others”. 52.     It remains to be established whether the interference was “necessary in a democratic society”. (a)     The general principles 53.     The general principles for assessing whether an interference with the exercise of the right to freedom of expression is “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention are well settled in the Court’s case-law. They have been recently summarised in the cases Bédat v.   Switzerland [GC] (no.   56925/08, § 48, 29 March 2016) and Pentikäinen v. Finland [GC] (no.   11882/10, § 87, 20 October 2015). 54.     The Court also reiterates that journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation (see Prager and Oberschlick v. Austria , 26 April 1995, § 38, Series A no. 313). 55.     Moreover, as regards the level of protection, there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see Morice v. France [GC], no.   29369/10, § 125, 23 April 2015, with further references). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case, in particular, for remarks on the functioning of the judiciary (ibid.). 56.     Further, the Court reiterates that it has always distinguished between statements of facts and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof (see, among many other authorities, Morice , cited above, § 126; and Feldek v.   Slovakia , no. 29032/95, §   75, ECHR 2001 ‑ VIII). However, where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement: if there does not,