Freedom of expression, enshrined in Article 10 of the European Convention on Human Rights (hereinafter the ECHR), is one of the basic foundations of a democratic society and one of the basic conditions for the progress and development of every human being. States must not only refrain from interfering with this right but must also take measures to protect it effectively. Restrictions on the freedom of expression, provided for in paragraph 2 of Article 10 of the ECHR, must be strictly interpreted, and the need for any restrictions must be convincingly demonstrated. In particular, the intervention of any public authority in the right to expression must be provided for by law, be necessary for a democratic society and must take place only in the pursuit of one of the purposes mentioned in paragraph 2. If any of the above does not apply, then it is considered that there has been a violation of Article 10 (see more in this guide to Article 10 of the Convention).
On 10 November 2022, the decision of the ECtHR on the case of Lyparis v. Greece (application no. 6047/14) was published, in which it was acknowledged that Greece had violated Article 10 of the ECHR.
The applicant, a politician, was found liable in national civil defamation proceedings for an article he had published in the local press in which he criticised I.G., who at the time of the article was an elected prefect, for acts and omissions of the political party he was leading.
On 24 March 2005 the applicant published an open letter in a local newspaper addressed to I.G. in his capacity as leader of the political party P. and dealing with alleged acts and omissions of the past years, after I.G. had referred to the applicant as a “bad adviser” to the prefect. In particular, the applicant referred to several projects that, in his view, had been left incomplete or had defects. He included phrases such as “the Greek people (through your doing) spent more than 200,000,000 drachmas on the port at Psara, half of which you donated(!) (to use a very mild expression)”, “… but the only thing you were concerned about then was how to satisfy the whims of the high-flying doctor next door («τα βίτσια του γείτονα μεγαλογιατρού»)”. The applicant concluded his open letter stating that “it is obvious that you were not personally responsible for everything, but I am addressing you in your capacity as leader of the P. party and because you said things about me publicly without any reason”. The applicant was ordered to pay I.G. 10,000 euros (EUR) for the non‑pecuniary damage he had suffered. In decision no. 1476/2013 of 8 July 2013, the Court of Cassation upheld the judgment of the appellate court.
The Court first held that the applicant’s conviction amounted to an “interference by a public authority” with his right to freedom of expression. Although it found that the interference was provided for in the law, it asked whether it was “necessary in a democratic society”.
Returning to the principles crystallized in the judgments in Bédat v Switzerland ([ECJ Plenary], no 56925/08, §§ 48-54, 29 March 2016 and Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland [ECJ Plenary], no 931/13, § 160, 27 June 2017, the ECJ found that the national courts did not take due account of the principles and criteria laid down in the case law of the Court of Justice for balancing the right to respect for private life and the right to freedom of expression. Thus, they exceeded the margin of appreciation granted to them and failed to demonstrate that there was a reasonable relationship of proportionality between the interference in question and the legitimate aim pursued. It therefore held that there had been a breach of the applicant’s right to freedom of expression and held that Greece must pay the applicant EUR 18,534 for pecuniary damage and EUR 5,000 for non-pecuniary damage, while also awarding the applicant the sum of EUR 2,191.73 for costs and expenses in respect of the domestic courts, but did not award costs for the proceedings before it.
Respect for fundamental rights is one of the basic components of the rule of law. The fundamental rights that every citizen should enjoy are enshrined, inter alia, in the European Convention on Human Rights. It is a primary and undeniable obligation of the State to respect these rights.
In the present case, however, the European Court of Human Rights held that the applicant’s right to freedom of expression had been infringed. The national authorities (in this case the civil courts) imposed a custodial sentence on the applicant for the offence of defamation without sufficient reasoning/justification. In this way, an interference with the applicant’s right to freedom of expression took place, which was not necessary in a democratic society and therefore violated Article 10 of the ECHR.
This decision adds to an already long list of similar convictions in Greece with worrying implications for the quality of the safeguarding of the right to freedom of speech.
This trend also contradicts the Council of Europe’s proposal to decriminalize defamation and increase protection for the freedom of speech and the press.
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