Lawyer’s freedom of expression

In the case of L.P. and Carvalho v. Portugal (applications nos. 24845/13 and 49103/15, 08.10.2019) the European Court of Human Rights held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The case concerned findings of liability against two lawyers for defamation (L.P.) and for attacking a person’s honour (Mr Carvalho) in respect of two judges, on account of documents drawn up by the lawyers in their capacity as representatives.

In 2008 L.P. sent a letter to the High Council of the Judiciary (HCJ) to complain about the conduct of Judge A.A. 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 A.A. subsequently lodged a complaint for defamation against L.P., alleging an attack on her reputation and honour. In 2012 the Lisbon Court of Appeal ordered L.P. to pay 5,000 euros (EUR) to the judge, finding that the accusations made against her had overstepped the bounds of permissible criticism. 

In 2009 two persons of Roma origin, represented by Mr Carvalho, lodged complaints against Judge A.F. for defamation and racial discrimination on account of comments made by her in a judgment concerning them. 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 EUR 10,000 with default interest.

The Court found, in particular, that both applicants had been acting in the performance of their professional duties as lawyers. L.P.’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. The case against Mr Carvalho concerned the fact that he had taken instructions from clients seeking to prosecute a judge for defamation and discrimination, following criminal proceedings which had received widespread media coverage owing to a judgment given by the judge in question against Mr Carvalho’s clients. 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, the Court took the view that seeking to compel a lawyer to refuse instructions was liable to infringe the right of each individual to have access to a court.

It further considered that the penalties had been apt to have a chilling effect on the profession of lawyer as a whole. Consequently, 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.

References from the official webiste of the European Court of Human Rights