CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 juin 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase }     Communicated on 23 June 2015   FIRST SECTION Application no. 79972/12 António Alberto Mota SOARES against Portugal lodged on 4 December 2012 STATEMENT OF FACTS The applicant, Mr António Alberto Mota Soares, is a Portuguese national, who was born in 1957 and lives in Góis. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The background of the proceedings The applicant is a chief corporal in the National Republican Guard ( Guarda Nacional Republicana ). At the relevant time, he was working at the Arganil territorial post. On 7 November 2009 the applicant sent an e-mail to the General Inspectorate of Internal Administration ( Inspecção-Geral da Administração Interna ) on the subject “Suspicion on misuse of money”, in which he made reference to an alleged misuse of money by Commander M. of the Arganil territorial post in accordance with what he had heard in a conversation with his colleagues at the territorial post. The applicant also forwarded the e-mail to the General Command of the National Republican Guard ( Comando Geral da Guarda Nacional Republicana ) and to the Lousã Public Prosecutor’s Office ( Ministério Público ) asking them to investigate the alleged facts. In the e-mail he stated the following: “In the month of December 2008 the Coimbra [National Republican Guard] Territorial Group distributed money to the territorial posts of its area of command ... for the Christmas dinner ... The only members of the military [in Arganil] who attended the dinner were the Commander and Corporal M.; the total amount of money that had been given to the military from the [territorial] post [to pay for the dinner] was paid to the restaurant’s manager in exchange for a receipt ... it seems that the Commander has since then been going with his family to the mentioned restaurant, where the cost of his meals is deducted from the money that was not spent [on the above dinner] ... Note: I have just become aware of this matter through rumours within the military of the mentioned post, who claim that they have not reported the situation for fear of reprisals, and because of that [fear of reprisals] I ask you for secrecy during the investigation because I am also a military...” Following the applicant’s e-mail, the Lousã Public Prosecutor’s Office opened an investigation into his allegations (domestic proceedings no. 158/09.3TAAGN). On 28 February 2010 it discontinued the proceedings on the grounds that it had not found any evidence of the criminal offence that had been denounced by the applicant. The General Inspectorate of Internal Administration conducted an inquiry into the applicant’s allegations. On 21 June 2010 it discontinued the inquiry, taking into account the Lousã Public Prosecutor’s Office decision of 28 February 2010 and the in dubio pro reo principle. The General Command of the National Republican Guard also started an internal inquiry into the allegations. On 23 December 2009, Commander M. was heard. He then became aware of the e-mail and its content. On an unknown date disciplinary proceedings were instituted; they were discontinued on 30 July 2010. 2.     Criminal proceedings against the applicant On 22 April 2010 Commander M. lodged a criminal complaint before the Lousã Public Prosecutor’s Office (domestic proceedings no. 131/10.9TALSA), accusing the applicant of defamation. He alleged that the applicant’s e-mail had disseminated injurious statements about him. On 7 July 2011 the Public Prosecutor brought charges ( acusação ) against the applicant for aggravated defamation. On 21 September 2011 Commander M. lodged a claim for damages against the applicant. In a judgment of 17 January 2012 the Lousã Criminal Court convicted the applicant of aggravated defamation and sentenced him to eighty day fines, totalling 720 euros (EUR). The applicant was also ordered to pay EUR 1,000 in damages to Commander M. The Court described its findings of fact and the manner in which it had assessed the evidence, and held as follows: “... since the existence of such a rumour has not been proved in any way, the court is fully convinced that the defendant’s intention was to undermine the honour of the offended party, once he knew that this was just a rumour and that therefore he was making an allegation that was not true ... In the present case, the defendant has accused the offended party of facts which are objectively dishonourable without having any evidence to substantiate them ...” On an unknown date the applicant appealed against the judgment to the Coimbra Court of Appeal. On 19 September 2012 the Coimbra Court of Appeal upheld the first instance’s decision. 3.     Disciplinary proceedings against the applicant On an unknown date the General Command of the National Republican Guard started disciplinary proceedings against the applicant. On 20 February 2013 the General Command imposed a disciplinary sanction on the applicant consisting of suspension from duty for six days, its enforcement being suspended for a period of twelve months. The General Command based its decision on the fact that the applicant had not informed his hierarchical superiors of the alleged facts, thereby breaching his duty of loyalty. B.     Relevant domestic law The Portuguese Criminal Code provides as follows: Article 180 § 1 “Anyone who, when addressing a third party, accuses another, even if the accusation takes the form of a suspicion, or makes a judgment that casts a slur on the honour or reputation of the other, even when reproducing the accusation or judgment, shall be liable on conviction to a maximum of six months’ imprisonment or 240 day-fines.” Article 184 of the Criminal Code increases the sentence by a half if the victim is an agent of authority. Article 184 § 4 provides that if the reporting agent has not complied with his duty of information with regard to the veracity of the allegations, he will not be deemed to have acted in good faith. COMPLAINTS The applicant complains, under Article 10 of the Convention, that his conviction amounted to a violation of his right to freedom of expression within the meaning of Article 10 of the Convention. He also relied on Articles 6, 7 and 13 of the Convention.   QUESTIONs TO THE PARTIES   1.     Has there been a violation of the applicant’s right to freedom of expression, in particular his right to impart information, contrary to Article   10 of the Convention ( Guja v. Moldova [GC], no. 14277/04, ECHR   2008; Heinisch v. Germany , no. 28274/08, ECHR 2011)?   2.     Which procedural steps before his hierarchal superiors the applicant should have taken prior to informing the General Inspectorate of Internal Administration, the General Command of the National Republican Guard and the Lousã Public Prosecutor’s Office of the alleged facts, as held in the disciplinary proceedings’ decision of 20 February 2013?