“When they accused me of racism and encouraging hatred because of the posters, it immediately opened up the news. Now justice ruled me right and try to hide it at all costs. A shame!”
This statement by André Ventura was posted this Friday, at 10 am on the social networks of the president of Chega. He was referring to the shelving, by the Public Prosecutor’s Office, widely reported this Thursday, of the criminal investigation relating to the poster in question in the Court’s decision (the one referring to gypsies) and two others, namely, “Immigrants cannot live on subsidies”, and “This is not Bangladesh”.
By coincidence, however, shortly after the publication of André Ventura’s post, another decision became known, this one from a higher court — the Court of Appeal of Lisbon — which, on the same subject, does not give him reason: it is precisely the total rejection of the appeal he presented in reaction to the sentence of the Civil Court of Lisbon, which ordered, in December, at the request of six gypsy people, that the politician remove the poster which read “Gypsies must comply with the law”.
In a ruling dated March 12th (this Thursday), the Court fully confirmed the lower court’s decision, considering that the poster’s message is discriminatory and exceeds the legal limits of freedom of expression.
An assertion with which André Ventura does not, naturally, agree, considering that the Lisbon Court of Appeal is “covering up and protecting censorship”, in a “disservice to freedom and democracy”.
Noting the contradiction between the decision to archive, taken by the Public Prosecutor’s Office, the criminal case (which is likely to be reversed, either by hierarchical appeal or in the context of opening an investigation), and the decision taken in the context of the civil case, the leader of Chega considered that, despite being different judicial forums, “freedom of the press is freedom of the press, freedom of expression is freedom of expression, political freedom is political freedom, it is no different in a criminal case than in a civil case”therefore, as it is “an issue of a constitutional nature as well, because it involves freedom of expression and political freedom”, it will “request the Constitutional Court to rule on this decision, because this is a decision that has to be taken by a higher court in order to standardize jurisprudence in Portugal”.
He also raised the possibility of “going to the European Court of Human Rights”.
Relationship and MP read posters and European jurisprudence in opposite ways
The contrast between the arguments of the Court of Appeal and those of the MP’s order begins with the interpretation of the phrase “Gypsies have to comply with the law”, that is, with the reasoning regarding the facts.
The Court’s ruling states that “by proclaiming ‘gypsies must obey the law’ the poster has the implicit message that ‘gypsies don’t follow the law’this is the immediately understandable meaning, which is why it contains a discriminatory message in relation to all people of a specific ethnic group, which historically and socially is recognized as being the object of widespread discrimination”, it is not the same thing to “state that everyone must comply with the law or that a certain group identified by their ethnicity, race, religion, origin, sex or sexual orientation must comply with the law, as Contrary to the general affirmation of equality before the law, the identification of a specific group as owing obedience to the law implies discrimination against that group in the face of compliance with the law.“
The prosecutor who signs the order archiving the criminal case sees the phrase “an apodictic proposition”that is, a irrefutable judgment or truthevident and logically demonstrable, which does not admit of dispute, because “stating that a certain group of people has to comply with the law (…) corresponds to evidence”, with the “realized purpose of transmitting a message of a political nature and calling for public debate and for the presidential campaign the issue of integrating the Roma people into society.”
Something similar happens in the legal foundations, as both documents use the jurisprudence of the European Court of Human Rights (ECtHR) to support their conclusions.
While the MP’s attorney certifies that the messages on André Ventura’s posters, in addition to not constituting “any insult, defamation or incitement to practice discriminatory acts against a minority or vulnerable group, which is why it does not appear to be discriminatory for the purposes of criminal law“, are protected by “freedom of expression within political discourse”, invoking several decisions of the ECtHR that, in its opinion, support this protection, the Court of Appeal ensures the opposite.
Thus, the judges state that, in accordance with Strasbourg jurisprudence, “freedom of political expression ceases to deserve protection under article 10 of the European Convention on Human Rights when it is translated into generalized statements that attack or cast a negative light on ethnic groups, in line with the requirement to combat racial discrimination”.
“The MP’s order could have been written by someone from Chega”
The contradiction between the grounds of the Lisbon Relation decision, known this Friday, and those of the Public Ministry’s archiving order had already been commented on, in statements to DN, by António Garcia Pereira, author of one of the complaints presented to the Public Ministry against André Ventura’s posters.
This lawyer, who considers that the decision of the Appeal demonstrates, citing the jurisprudence of the European Court of Human Rights, that freedom of expression is not an unlimited thing, and that it is limited in the first place by the prohibition of discrimination and attacks on the dignity of the human person”accuses the prosecutor who signed the order archiving the criminal case to “only cite court decisions that have nothing to do with the situation at hand. These are decisions referring to cases in which there is a person, generally a politician, who is accused of this or that. These are not situations in which there is an attack on a group, with slanderous implications of the type that occur in André Ventura’s posters”. Now, the lawyer comments, “the prosecutor cannot reasonably claim that he only knows a certain jurisprudence, which is the one that serves his thesis, and that he is unaware of the other. Either he knows the jurisprudence or he does not know the jurisprudence.”
António Garcia Pereira’s conclusion is, therefore, that the archiving order is “an absolutely unfounded decision”, something that, from his perspective, is demonstrated by the Lisbon Relation ruling, which “reduces the MP’s arguments to dust, which could have been written by someone from Chega.”
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