FIRST SECTION
CASE OF BALASKAS v. GREECE
(Application no. 73087/17)
 
 
 
JUDGMENT
Art 10 • Freedom of expression • Suspended prison sentence imposed on journalist, in disregard of Convention standards, for calling a school headmaster a “neo-Nazi” in reply to his publicly expressed views
 
STRASBOURG
5 November 2020
 
FINAL
 
05/02/2021
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Balaskas v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Ksenija Turković, President,
 Linos-Alexandre Sicilianos,
 Alena Poláčková,
 Péter Paczolay,
 Gilberto Felici,
 Erik Wennerström,
 Lorraine Schembri Orland, judges,
and Abel Campos, Section Registrar,
Having regard to:
the application (no. 73087/17) 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 Efstratios Balaskas (“the applicant”), on 4 October 2017;
the decision to give notice of the application to the Greek Government (“the Government”);
the parties’ observations;
Having deliberated in private on 13 October 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the conviction for insult through the press of a journalist who had an article published in a local newspaper attributing the characteristics “neo-Nazi” and “theoretician of the entity ‘Golden Dawn’” to the headmaster of a local high school. The article followed a post on the headmaster’s personal blog under the title “The ultimate lie is one: that of the Polytechnic School of 1973”, referring to the massive student uprising against the military dictatorship in Greece that took place in November 1973. The applicant complained that his conviction had resulted in a violation of Article 10 of the Convention. THE FACTS
2. The applicant was born in 1962 and lives in Mytilene. He was represented by Mr T. Theodoropoulos, a lawyer practising in Athens. 3. The Government were represented by their Agent’s delegate, Mrs S. Papaioannou, legal representative at the State Legal Council. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant is a journalist. In 2013 he was editor-in-chief of the Lesbos daily newspaper Empros. 6. On 17 November 2013 the headmaster of the 6th High School of Mytilene, B.M., posted an article on his personal blog under the title “The ultimate lie is one: that of the Polytechnic School of 1973” («Το απόλυτο ψεύδος είναι ένα: αυτό του Πολυτεχνείου του 1973»), referring to the massive student uprising of 1973 in polytechnic School that contributed to the end of the military dictatorship in Greece. The 17th of November, anniversary of the uprising, is celebrated as a school holiday. 7. On 19 November 2013 an article written by the applicant was featured in pages one and five of Empros under the title “The headmaster of the 6th High School of Mytilene, B.M., attacks, through his personal blog, the ‘ultimate lie of the Polytechnic school’”. It included the following passage:
“The well-known neo-Nazi headmaster of the 6th High School of Mytilene, B.M., is back. Under the pretext of the anniversary of the Polytechnic School uprising, and taking advantage of the tolerance of his superiors, the theoretician of the entity ‘Golden Dawn’ in Lesvos posted on his personal blog ... neo-fascist vomit under the title ‘THE ULTIMATE LIE IS ONE: THAT OF THE POLYTECHNIC SCHOOL OF 1973’”. 8. Following publication of the article, B.M. filed a criminal complaint against the applicant for slanderous defamation through the press. 9. On 27 November 2013 the three-member Mytilene First-Instance Criminal Court held a hearing in the case. The applicant, relying on Article 367 § 1 of the Criminal Code, argued that what he had written was true and based on a legitimate interest. In particular, the article mainly focused on B.M.’s capacity as headmaster and the spreading of his views to students on the anniversary of the Polytechnic uprising, which was also a school holiday. 10. The court held that the phrases “well-known neo-Nazi headmaster” and “theoretician of the entity ‘Golden Dawn’” constituted judgments and characterisations and not facts. It also held that it was apparent from the way they were expressed that there had been an intention to insult B.M.’s honour and reputation. As regards the applicant’s argument that he had had a legitimate interest in informing the readers of the newspaper, this could not be accepted as the need to inform the public could have been satisfied with the use of other, more decent expressions. The court therefore changed the charges from slanderous defamation to insult (εξύβριση), found the applicant guilty of insult through the press and sentenced him to a six‑month suspended prison sentence (decision no. 1264/2013). He appealed against that decision. 11. On 11 July 2016 the three-member North Aegean Misdemeanour Court of Appeal (“the Court of Appeal”) held a hearing in the case. The applicant again argued that his act had not been wrongful, as what he had written in the published article had been true and based on a legitimate interest. When responding to the article posted by B.M. on his blog on the anniversary of the Polytechnic uprising, he had been exercising his right to freedom of expression. He additionally claimed that the characterisations of B.M. had been based on extensive evidence. In particular, on 8 August 2010 B.M. had posted an article on his website stating:
“... Our contact and substantial relationship with nationalist organisations and clubs (see Golden Dawn) who preserve like an ark the original nationalist Word and Action are highly important ... We, as parents, must strive for racial purity. NATIONAL‑SOCIALISM, loyalty to the race and to the Will of the Racial vital space... is the most superior [thing] of all. IT IS AN HONOUR TO BE CALLED A NATIONAL‑SOCIALIST ...”
12. In addition, since 8 December 2010 he had posted twenty‑three articles on his website concerning the Aryan race, national-socialism and the Zionist Jews, and had saved the organisation and editions of Golden Dawn in his favourites. He had additionally posted a message on 25 September 2009 calling for Greeks to vote for Golden Dawn. Lastly, in November 2013 the Primary School Teachers’ Union had published an announcement denouncing B.M.’s views as fascist. Similarly, in May 2015 the High School Teachers’ Union had published an announcement denouncing any supporter of Nazism “whether or not he was calling himself national-socialist, such as the headmaster of the ... High School B.M., who was spreading fascist and racist ideas”. Based on the above, the applicant’s characterisations of B.M. had constituted value judgments with a factual basis and had been based on a legitimate interest – on the one hand, the need to inform the public of remarks made by the headmaster of the high school for the anniversary of the Polytechnic uprising and on the other, the need to restore the truth, as B.M.’s post had contained false allegations. 13. The Court of Appeal upheld the first-instance court’s decision, providing the same reasoning. It sentenced the applicant to a three-month suspended prison sentence, convertible to five euros daily (decision no. 112/2016). 14. On 16 September 2016 the applicant lodged an appeal on points of law against the Court of Appeal’s decision. He argued that it had lacked sufficient reasoning, had lacked legal basis and that the court had erroneously interpreted and applied Article 367 § 2 of the Criminal Code. In particular, the Court of Appeal had failed to refer to the evidence from which his intention to insult had been established and thus to explain why his act had still been considered wrongful, despite what was provided for by Article 367 of the Criminal Code. In addition, the appellate court had not included in the reasoning other expressions that the applicant could have used to express criticism of a public figure – the headmaster of a local high school – and inform the public of the headmaster’s views on a sensitive issue such as the Polytechnic uprising. 15. On 4 April 2017 the Court of Cassation dismissed the applicant’s appeal on points of law (decision no. 686/2017). The court held that the Court of Appeal’s judgment had included sufficient reasoning. In particular, it had sufficiently justified why the expressions used had been insulting and had not been necessary to inform the public of the article published by B.M., a public figure, without needing to add which expressions could have been used instead. It had also included sufficient reasoning as to why Article 367 § 1 had not been applicable in the circumstances of the present case, given that the applicant’s intention to insult B.M. had been clear. The decision became final (καθαρογραφή) on 25 April 2017. RELEVANT LEGAL FRAMEWORK AND PRACTICE
Domestic Law
16. The relevant provisions of the Criminal Code read:
Article 361
Insult
“1. Except in cases which 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 by up to one year’s imprisonment, or by 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 which may harm the latter’s honour or reputation shall be punished by up to two years’ imprisonment or a pecuniary penalty. The pecuniary penalty may be imposed in addition to imprisonment.”
Article 363
Slanderous defamation
“If, in a case under Article 362, the information is false and the offender was aware of the falsity thereof, he shall be punished by 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 [alleged defamatory information] is true, the act shall not be punished ...”
Article 367
“1. The following cannot be considered wrongful acts: ... (c) [statements or actions] for the purposes of fulfilling lawful duties, the exercise of lawful authority, or preserving (protecting) a right or based on some other legitimate interest or (d) in similar cases. 2. This provision shall not apply: (a) when the above-mentioned criticisms and [statements or actions] have the elements of an offence under Article 363, and (b) when it is apparent from the manner of [the statement or action] or the circumstances in which the act was committed that there was an intention to insult.”
INTERNATIONAL LAW
17. 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. 8. The Assembly deplores the fact that in a number of member states prosecution for defamation is misused in what could be seen as attempts by the authorities to silence media criticism. Such abuse – leading to a genuine media self-censorship and causing progressive shrinkage of democratic debate and of the circulation of general information – has been denounced by civil society, notably in Albania, Azerbaijan and the Russian Federation.
... 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
18. The applicant complained that his criminal conviction on account of his published article had violated his right to freedom of expression. He relied on 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

19. The Government argued that the applicant had not exhausted domestic remedies. In particular, in his appeal on points of law before the Court of Cassation, he had put forward arguments relating to the reasoning of judgment no. 112/2016 of the Court of Appeal and the wrongfulness of his actions under Article 367 of the Criminal Code. He had additionally complained that the appellate court had erroneously interpreted and applied the relevant provisions, namely Articles 361 and 367 § 2 of the Criminal Code. He had therefore failed to invoke his rights under Article 10 of the Convention or complain of being given a disproportionate sentence and thus had not given the Court of Cassation the opportunity to examine a possible violation of the Convention. 20. The applicant contested the argument that he had not exhausted domestic remedies. He argued that even though he had not explicitly referred to Article 10 of the Convention, he had raised such a complaint in substance before the Court of Cassation. In particular, he had included in his appeal on points of law that what he had written had been based on his legitimate interest in expressing criticism of a public figure. He had invoked Article 367 of the Criminal Code to that effect, which provided that his actions should remain unpunished as the article had concerned a matter of legitimate interest. He had additionally mentioned the special role of the press in society and had argued that his characterisations of B.M. had constituted strong and harsh criticism of his views and had not been written with an intention to insult. He had thus put forward arguments related to Article 10 of the Convention at least in substance and had given the domestic courts the opportunity to provide redress for the alleged violation.

Outcome for Article 10: violation