Article 10 European Convention on Human Rights (Right to Freedom of Expression) and the Case of Pinto Coelho v. Portugal (Conviction of Journalist for Broadcasting Recording of Court Hearing without Permission)

ECtHR 22.03.2016, Application no. 48718/11 AHİS md.10 (İfade Özgürlüğü) ve Pinto Coelho Portekiz Davası (Mahkeme Kayıtlarını İzinsiz Yayımlayan Gazetecinin Mahkumiyeti) AİHM 22.03.2016, Başvuru No. 48718/11

Yaren YÜKSEK

The applicant, Ms Pinto Coelho, is a Portuguese journalist, reported on a criminal proceedings against a 18-year-old man who was convicted of an aggravated theft. Coelho claimed that the judges had made a mistake and the young man was innocent. To support her position, Coelho included in her report shots of the courtroom, extracts of sub-titled sound recordings and the questioning of prosecution and defence witnesses, in which their voices and those of the three judges were digitally altered. After this report was broadcast, Coelho convicted for failure to obtain authorization to publicly broadcast the footage and the recordings of the criminal trial and sentenced to pay a fine of € 1,500. The Court of Human Rights found that the imposition of a fine on the applicant was a violation of her right to freedom of expression and information. The Court’s majority found Portugal in violation of Article 10 of the Convention.

Freedom of Expression, Freedom to Receive Information, Violation of Art. 10, Human Rights, Freedom to Impart Information, Court Records, Access to Public Information, Audio/Visual Broadcasting, Maintaining the Authority and Impartiality of the Judiciary.

Başvuruda bulunan Portekizli gazeteci Pinto Coelho, ağırlaştırılmış hırsızlık suçundan hüküm giymiş 18 yaşındaki bir erkeğe yönelik ceza yargılamasını raporladı. Coelho’nun iddiası yargıçların bir hata yaptığı ve genç adamın masum olduğu şeklindeydi. Coelho, bu iddiasını duruşma sırasında mahkeme salonundan aldığı görüntü ve ses kayıtlarıyla destekledi. Ses kaydına aldığı hakimlerin ve tanıkların ifadelerini, kamu tarafından kimlik saptaması yapılmasını önlemek amacıyla, dijital olarak değiştirip yayınladı. Yayından sonra gazeteci, dava kayıtlarının yayımlanması için izin alınmadığı gerekçesiyle suçlu bulundu ve hakkında 1500 euro para cezasına hükmolundu. AİHM, gazetecinin para cezasına çarptırılmasının, ifade özgürlüğünün ihlali olduğuna karar verdi. Mahkeme çoğunluğu, Portekiz’in AİHS’nin 10. maddesini ihlal ettiğini tespit etti.

İfade Özgürlüğü, Bilgi Edinme Özgürlüğü, AHİS md.10’un İhlali, İnsan Hakları, Bilgi Sunma Özgürlüğü, Mahkeme Kayıtları, Kamu Enformasyonuna Erişim, Görsel/İşitsel Yayıncılık, Yargının Yetki ve Tarafsızlığının Korunması.

1. Preface

The right to freedom of expression and information is guaranteed by Article 10 of the European Convention for the protection of Human Rights and Fundamental Freedoms in all 47 member states of the Council of Europe.¹

Article 10 protects your right to hold your own opinions and to express them freely.

Although you have freedom of expression, you also have a duty to behave responsibly and to respect other people’s rights.

Government may restrict this right for protect national security, public safety, health and morals, and the rights of other people.

This right is very important for journalists and other people working in the media. They must be free to criticise the government and our public institutions without fear of prosecution. This is a vital feature of a democratic society. But press freedom and freedom of political expression is still a very problematic issue, such as in Turkey.

Freedom of expression is not only important in its own right but is also essential if other human rights are to be achieved.

Freedom of expression and the European Court of Human Rights Article 10 of the European Convention reads as follows:

2. The Case of Pinto Coelho v. Portugal (Application No. 48718/1)

The case concerns the criminal-law fine imposed on Ms Pinto Coelho, a journalist, for having broadcast in a news report excerpts which included sound recordings from a court hearing, obtained without permission from the judge.²

The applicant, Sofia Pinto Coelho, is a Portuguese national who was born in 1963 and lives in Lisbon (Portugal). On 12 November 2005 the news programme on the Portuguese television channel SIC (Sociedade Independente de Comunicação), for which Ms Pinto Coelho worked as a journalist and legal affairs correspondent, broadcast a report prepared by her about the criminal conviction of an 18-year-old man for aggravated theft of a mobile phone. Ms Pinto Coelho evaluated her argument with many jurists for alleging a judicial error and defending the young man’s innocence. She included in her report shots of the courtroom, extracts of sub-titled sound recordings and the questioning of prosecution and defence witnesses, in which their voices and those of the three judges were digitally altered (in order to prevent them from being identified by the public). The hearing was public and none of the persons concerned had complained of an infringement of their right to speak, although this remedy had been open to them under the domestic law. It was primarily up to them to ensure respect for that right.

After the report was broadcasted, the public prosecutor brought charges against the journalist and the managers of her news program for their failure to obtain authorization to publicly broadcast the footage and the recordings of the trial in violation of Article 88 of the Code of Criminal Procedure and Article 138 of the Criminal Code.

In a judgment of 6 August 2008, the District Court of Oeiras found Coelho guilty of non-compliance with a legal order and ordered to pay a fine of 1,500 euros. The Court considered that the scenes from the hearing that had been broadcast were not essential for the report. It held that press freedom was not absolute and to the extent that Coelho was a trained lawyer and a journalist specializing in judicial affairs, she knew that the transmission was prohibited by law.

On 26 May 2009 The Lisbon Court of Appeal upheld this judgment.

On 15 February 2011 the Constitutional Court dismissed an appeal by Ms Pinto Coelho.

In July 2011, Coelho filed an application with the European Court of Human Rights, arguing that her conviction for the non-authorized use of the court recordings violated her right to freedom of expression under Article 10 of the European Convention on Human Rights.