Portugal/District Court of Aveiro/Judgement 282/20.1PAVFR
Country
Portugal
Title
Portugal/District Court of Aveiro/Judgement 282/20.1PAVFR
Not publicly available
Year
2022
Decision/ruling/judgment date
Tuesday, November 29, 2022
Incident(s) concerned/related
Hate speech: Public incitement to violence or hatred
Related Bias motivation
Religion
Groups affected
Refugees & asylum seekers
Court/Body type
National Court
Court/Body
District Court of Aveiro (Tribunal da Comarca de Aveiro)
Key facts of the case
The Public Prosecutor's Office has charged A. with two crimes: illegal photography and racial, religious or sexual discrimination. The injured party brought a private prosecution against A. for a crime of defamation with publicity and filed a claim for civil damages in the amount of 5,000 euros. At issue is the publication on A.'s Facebook page of six photographs of the injured party (dressed in a burka) with the following description ’Alert everyone's parents... these bastards are hanging around schools. They rape children and then kill them to remove their organs and sell them. They hang around X and Y schools’.
Main reasoning/argumentation
The court found that A., by publishing photographs of the injured party on his Facebook page, intended to defame the injured party due to her ethnic origin/nationality and religion (well aware that the clothes worn by the injured party were typical of the Muslim religion), thus imputing false facts her and making judgements about her that were offensive to her honour. Furthermore, knowing that the publication could be seen by other people, A., with such words, intended to incite hatred due to ethnic/national origin and religion of the injured party.
Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?
Key issues (concepts, interpretations) clarified by the case
The key issues were about whether A.'s conduct (i.e. posting on his Facebook page photos of the injured party dressed in a burka with the statement "Alert everyone's parents...these bastards are hanging around schools. They rape children and then kill them to remove their organs and sell them. They hang around X and Y school.") constituted not only a crime of defamation with publicity but also a crime of racial, religious or sexual discrimination and a crime of illegal photography.
Results (sanctions, outcome) and key consequences or implications of the case
The Court decided to sentence A. to 8 months in prison for the offence of racial, religious or sexual discrimination, and sentenced him to 8 months in prison. However, the court also decided to replaced this sentence by a fine of 150 days at the daily rate of 6.50 euros (a total of 950 euros). A. was also convicted of the offence of aggravated defamation, and of the offence of illegal photography, with a single sentence of a 170-day fine at a daily rate of 6.50 euros (a total of 1,105 euros). The court also ruled that the claim for damages was partially well-founded, and sentenced A. to pay 1,000 euros in damages to the injured party.
Key quotation in original language and its unofficial translation into English with reference details
"A importância do bem jurídico em causa é de tal modo acentuada que a própria Constituição da República Portuguesa (CRP) a tutela expressamente no art. 26º, ao consagrar, a parte de outros direitos de personalidade, o direito ao bom nome e reputação, que resulta, desde logo, da dignidade da pessoa humana, consagrada igualmente no art. 1º da CRP. Enquanto direito fundamental, o bom-nome e reputação constitui fundamento essencial ao desenvolvimento da pessoa em sociedade."
"«(...) A honra (e, por aproximação, o bom nome) está ligada à imagem que cada um tem de si próprio, construída interiormente mas também a partir de reflexões exteriores, repercutindo-se no apego a valores de probidade e honestidade; a reputação (e também a boa fama) representa a visão exterior sobre a dignidade de cada um, ao apreço social, o bom nome de que cada um goza no círculo das suas relações.”» (...) Basta, por isso, para preenchimento do tipo subjectivo de ilícito que o agente aja com dolo genérico, ou seja, que actue na consciência de que as expressões utilizadas são aptas a produzirem ofensa da honra e consideração da pessoa visada."
"The importance of the legal asset in question is so great that the Constitution of the Portuguese Republic (CRP) itself expressly protects it in Article 26, by enshrining, alongside other personality rights, the right to a good name and reputation, which derives from the dignity of the human person, also enshrined in Article 1 of the CRP. As a fundamental right, good name and reputation are essential foundations for a person's development in society."
"‘(...) Honour (and, by approximation, good name) is linked to the image that each person has of themselves, built internally but also from external reflections, reflected in the attachment to values of integrity and honesty; reputation (and also good name) represents the external view of one's dignity, social esteem, the good name that each person enjoys in the circle of their relationships.’’ (...) It is therefore enough for the subjective type of offence to be fulfilled that the agent acts with generic intent, in other words, that he acts in the knowledge that the expressions used are capable of causing offence to the honour and consideration of the person targeted."
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