FIRST SECTION
CASE OF MATALAS v. GREECE
(Application no. 1864/18)
 
 
JUDGMENT
 
Art 10 • Freedom of expression • Unjustified criminal conviction and prison sentence for slanderous defamation, for statements in private correspondence • Private dispute not reaching the public • Mutatis mutandis application of Court case-law on disparaging statements against public officials in written complaints to authorities • Suspension of sentence irrelevant, particularly as criminal conviction itself not expunged
 
STRASBOURG
25 March 2021
 
FINAL
 
25/06/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Matalas v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Krzysztof Wojtyczek,
 Linos-Alexandre Sicilianos,
 Alena Poláčková,
 Péter Paczolay,
 Raffaele Sabato,
 Lorraine Schembri Orland, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 1864/18) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Theodoros Matalas (“the applicant”), on 4 January 2018;
the decision to give notice to the Greek Government (“the Government”) of the complaint under Article 10 of the Convention and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the criminal conviction of the applicant, the managing director of a public limited liability company, for slanderous defamation of the former lawyer of the company. The applicant had sent to that lawyer an official document in which he had referred to her behaviour as “unprofessional and contrary to ethics” (“αντιεπαγγελματική και αντιδεοντολογική”) and had criticised her because, in his view, she had not fully informed him about the court cases against the company. THE FACTS
2. The applicant was born in 1968 and lives in Kifissia. He was represented by Mr G. Papalambros, a lawyer practising in Athens. 3. The Government were represented by their Agent’s delegate, Ms A. Dimitrakopoulou, senior advisor at the State Legal Council. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. By a decision of the Minister of Agricultural Development dated 5 November 2007, the applicant was appointed CEO of a limited liability company, AGROGI A.E. (“the company”), for the period between 5 November 2007 and 4 November 2008. On the same day, the applicant requested all the employees and advisors of the company to provide all relevant information regarding matters falling under their respective responsibility, so that he could gain a complete picture of the company and any outstanding issues affecting it. Among the employees invited was Ms L.P., who was at the time the company’s legal advisor. 6. Ms L.P. came to the office on 10 November 2007 and informed the applicant orally about pending legal cases involving the company. Subsequently, on 23 November 2007, she handed a report to the applicant, informing him about pending legal cases involving the company. According to the applicant, who questioned the accuracy of the report (arguing that it was incomplete), that note consisted of six lines and mentioned in general terms that there were no pending legal cases in which the company was involved. 7. On 11 December 2007, the applicant, as CEO of the company, sent an official document to Ms L.P. removing her from her position as legal adviser to the company. He additionally served Ms L.P. with another two official documents on 13 and 21 December 2007 informing her that he had deposited to the Deposits and Loans Fund the compensation due to her following the termination of her contract after she had refused to receive a cheque. On 14 January 2008, an additional official document was served on Ms L.P. requesting her to hand in all files relating to the pending legal issues facing the company that she had in her possession and to collect her personal belongings from her office in the company’s premises. 8. On 24 January Ms L.P. sent to the applicant an official document informing him that she would call at the company on that day in order to hand over the files and any other items relating to her duties that she had in her possession. 9. Ms L.P. visited the company’s premises and handed over the files at a time when the applicant was absent; however, the applicant continued to assert that Ms L.P. had not surrendered all the information relating to the company’s pending legal cases. Accordingly, on 4 February 2008 the applicant sent to Mrs L.P. an official document that was served on her on 6 February 2008. In it, he mentioned, inter alia, the following:
 “... we condemn the unprofessional and contrary to ethics behaviour that you have shown towards our company, which has shown so far great tolerance towards you. ... Until today, despite the numerous official documents that we have addressed to you, you still have not informed us of the progress of the legal cases that you have handled – in particular legal cases involving our company that are still pending – with a persistence that can only be explained by a malicious intention on your part to harm the company’s interests, in revenge for the fact that we removed you from the duties that had been assigned to you. Additionally, not only have you failed to deliver to us a complete and clear table detailing the progress and handling of judicial cases, but the information that you have so far provided to us is incomplete and erroneous ...”
10. On 22 April 2008 Ms L.P. lodged a criminal complaint against the applicant, alleging slanderous defamation resulting from the document of 4 February 2008. 11. On 26 November 2014 the one-member first-instance Misdemeanour Court of Athens held a hearing in the case. The applicant argued that he had not had any intention of harming L.P.’s reputation. The court found the applicant guilty of slanderous defamation and imposed on him a suspended sentence of ten months’ imprisonment (decision no. 97314/2014). The applicant appealed against that decision. 12. On 7 October 2015 the three-member Misdemeanour Court of Athens heard the applicant’s appeal. The applicant once again stated that the information contained in the official document dated 4 February 2008 had been based on facts, as L.P. had refused to fully inform him regarding the company’s pending legal cases. He mentioned as an example that on 14 January 2008 he had accidentally been informed by the opposite party’s lawyer that a trial was scheduled for the following day, whereas L.P. had noted down as the trial date 15 February 2008. He cited a full history of the dispute between him (in his capacity as managing director) and L.P. (as the former legal advisor to the company). He stated that only after he had served on her many official documents had she responded on 24 January 2008, sending him an official document in which she had informed him that she would call in at the company on that same day in order to hand over all outstanding files. He also cited Article 367 of the Criminal Code, arguing that he had made the impugned statements in his capacity as managing director of the company in an effort to protect its interests. 13. The appellate court, in its decision no. 34042/2015, held that the applicant had used expressions that had not been necessary for the protection of the company’s interests. Those unnecessary expressions had included lies (which had been contained in the above-mentioned official document dated 4 February 2008), as he had known when he had sent it that L.P. had fully informed him of the legal cases involving the company. None of the evidence adduced proved the applicant’s allegation that he had not been fully informed of all pending legal issues and cases involving the company: the deposition made under oath by the new legal advisor to the appellate court (that is to say, L.P.’s replacement) could not prove his assertion in that regard, as she had not been present at any meeting with L.P. Nor had L.P. contacted her in connection with her new responsibilities. In addition, when L.P. had handed over the files on 24 January 2008, the company employee receiving them had signed the handover record without writing any remarks on it. The appellate court concluded that the applicant’s allegations contained in the above-mentioned official document amounted to “facts” (γεγονότα) and were false. Those allegations had come to be known by numerous people, including the lawyer who had drafted the official document, the person who had served it on L.P., and the people in the building in which had her office (given the fact that the document had been attached to and left on her door, as she had been absent when the attempt had been made to serve it on her). The appellate court thus found the applicant guilty of slanderous defamation and sentenced him to a suspended prison sentence of eight months (decision no. 34042/2015). It additionally rejected the applicant’s argument to that he had lived an honest life until that point and that a more lenient sentence should be imposed on him. 14. The applicant appealed on points of law, on the grounds that included the erroneous application of Articles 362 and 367 of the Criminal Code, which had resulted in the rejection of the arguments that he had made thereunder. In particular, he argued that the appellate court had acted erroneously in finding his allegations to be false, as proved by the multiple official documents that he had been forced to serve on the complainant owing to her failure to provide accurate information regarding the pending legal cases in which the company was involved. The applicant had adduced evidence proving that what he had stated had been true, and the domestic court had failed to provide reasoning for its conclusion that the applicant had known that his statements had been false. In addition, the first-instance court had erroneously deemed that he had disseminated the contents of the document beyond its intended recipient. He had made his statements in a document addressed solely to L.P. Neither the bailiff who had served the document on her nor the residents of the building had had any interest in reading the document. This document had been posted on her door because of her absence (despite the fact that the applicant had not instructed the bailiff to do so). Lastly, the appellate court should have accepted the extenuating circumstances he had invoked, namely that he had lived an honest life. 15. On 25 May 2017 the Court of Cassation quashed the appellate court judgment in part rejecting the applicant’s argument that he had lived an honest life before the events in question. However, the Court of Cassation dismissed the applicant’s appeal on points of law in respect of the remainder of the appellate court’s judgment (decision no. 1182/2017). The Court of Cassation held that the judgment of the Court of Appeal had included sufficient reasoning as regards the other parts of its decision. In addition, it had acted correctly in dismissing the applicant’s argument that he had had a legitimate interest in sending the impugned document to L.P., as Article 367 did not apply when the allegations in question were false, as they had been in the present case. The decision was finalised (καθαρογραφή) on 6 July 2017. 16. The case was remitted to the three-member Misdemeanour Court of Athens for it to rule again on the extenuating circumstances. It held a hearing on 4 October 2017 and after accepting that the applicant had previously lived an honest life, sentenced the applicant to a suspended prison sentence of five months. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic lawCriminal Code

17. The relevant provisions of the Criminal Code read:
Article 361
Insult
“1. Except in cases that amount to defamation (Articles 362 and 363), anyone who by words or by deeds or by any other means injures another’s reputation shall be punished with up to one year’s imprisonment, or with a pecuniary penalty. The pecuniary penalty may be imposed in addition to imprisonment. 2. If the injury to reputation is not severe, considering the circumstances and the person injured, the offender shall be punished by imprisonment or a fine. 3. The provision of paragraph 3 of Article 308 shall apply in this case.”
Article 362
Defamation
“Anyone who by any means disseminates information to a third party concerning another person that may harm the latter’s honour or reputation shall be punished with up to two years’ imprisonment or a pecuniary penalty. A pecuniary penalty may be imposed in addition to imprisonment.”
Article 363
Slanderous defamation
“If, in a case [tried] under Article 362, the information [disseminated] is false and the offender was aware of its falsity, he shall be punished with at least three months’ imprisonment, and, in addition, a pecuniary penalty may be imposed and deprivation of civil rights under Article 63 may be ordered.”
Article 366
“1. If the information [disseminated as referred to in] Article 362 is true, then the act shall remain unpunished ...”
Article 367
“1. The following cannot be considered wrongful acts: ... c) [statements or actions undertaken in the course of] performing one’s legal duty, exercising a legal power, or preserving (protecting) a right, or in pursuit of another legitimate interest or d) similar cases. 2. The preceding provision does not apply: a) when the above-mentioned adverse judgments and [statements or actions] have the elements [listed in] Article 363, and b) when, from the manner ... or the circumstances in which the statement or action was undertaken, it follows that there was an intention to insult.”
Code of Civil Procedure
18. Article 128 of the Code of Civil Procedure provides as follows:
“1. If the recipient is not at home, then the document shall be served on one of his adult relatives or any servants who live with him/her. If they are absent or [no such relatives or servants] exist, then the document shall be served on any other adult co-residents who are aware of their actions and are not participating in the trial as opponents of the interested party.
... 4. If none of those referred to in paragraph 1 is at home, then a) the document must be affixed to the door of the residence in a sealed envelope, on which there will be [written] only the names of the bailiff and the person to whom the document is addressed, in the presence of a witness. In the case of [apartment] buildings whose entrance doors are closed and it is not possible to affix the document to the door of the [apartment of the person in question], it can be affixed to the entrance to the building in question; b) at the latest on the next working day following the affixing of the document to the door, a copy of the document ... must be delivered into the hands of the head of the police station or police office for the region in which the residence is located; ... c) at the latest on the next working day after the delivery, pursuant to point b) above, the person who served the document must send by post, to the person to whom the document is addressed, a written notification in which he specifies the kind of document that was served, the residential address at which it was posted, the date on which it was posted, the authority to which the document was delivered, and the date of delivery ...”
INTERNATIONAL LAW
19. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), entitled “Towards decriminalisation of defamation”. Its relevant passages read as follows:
“... 6. Anti-defamation laws pursue the legitimate aim of protecting the reputation and rights of others. The Assembly nonetheless urges member states to apply these laws with the utmost restraint since they can seriously infringe freedom of expression. For this reason, the Assembly insists that there be procedural safeguards enabling anyone charged with defamation to substantiate their statements in order to absolve themselves of possible criminal responsibility. 7. In addition, statements or allegations which are made in the public interest, even if they prove to be inaccurate, should not be punishable provided that they were made without knowledge of their inaccuracy, without intention to cause harm, and their truthfulness was checked with proper diligence.
... 12. Every case of imprisonment of a media professional is an unacceptable hindrance to freedom of expression and entails that, despite the fact that their work is in the public interest, journalists have a sword of Damocles hanging over them. The whole of society suffers the consequences when journalists are gagged by pressure of this kind. 13. The Assembly consequently takes the view that prison sentences for defamation should be abolished without further delay. In particular it exhorts states whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms. 14. The Assembly likewise condemns abusive recourse to unreasonably large awards for damages and interest in defamation cases and points out that a compensation award of a disproportionate amount may also contravene Article 10 of the European Convention on Human Rights.
... 17. The Assembly accordingly calls on the member states to:
17.1.  abolish prison sentences for defamation without delay;
17.2.  guarantee that there is no misuse of criminal prosecutions for defamation and safeguard the independence of prosecutors in these cases;
17.3.  define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation;
...
17.5.  make only incitement to violence, hate speech and promotion of negationism punishable by imprisonment;
17.6.  remove from their defamation legislation any increased protection for public figures, in accordance with the Court’s case law, and in particular calls on:
...
17.7.  ensure that under their legislation persons pursued for defamation have appropriate means of defending themselves, in particular means based on establishing the truth of their assertions and on the general interest, and calls in particular on France to amend or repeal Article 35 of its law of 29 July 1881 which provides for unjustified exceptions preventing the defendant from establishing the truth of the alleged defamation;
17.8.  set reasonable and proportionate maxima for awards for damages and interest in defamation cases so that the viability of a defendant media organ is not placed at risk;
17.9.  provide appropriate legal guarantees against awards for damages and interest that are disproportionate to the actual injury;”
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
20. The applicant complained that his criminal conviction for slanderous defamation had violated his right to freedom of expression, as provided in Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
AdmissibilityThe parties’ arguments

21. The Government argued that the applicant had not exhausted the available domestic remedies. In particular, in his appeal on points of law to the Court of Cassation, the applicant had failed to invoke his rights under Article 10 of the Convention or complain of being given a disproportionate sentence. Therefore, he had not given the Court of Cassation the opportunity to examine a possible violation of the Convention. 22. The applicant contested that argument. He argued that he had brought to the attention of the domestic authorities, facts that had constituted a violation of his rights under Article 10. He had advanced the argument that his statements had constituted value judgments, not facts. Even though he had not explicitly referred to Article 10 of the Convention, he had in substance raised such a complaint before the Court of Cassation. In particular, he had included in his appeal on points of law the argument that what he had written had been based on his legitimate interest as managing director of the company. To that effect he had cited Article 367 of the Criminal Code, under which his actions should have remain unpunished, given that his actions and been undertaken in pursuit of a matter of legitimate interest.

Outcome for Article 10: violation