A journalist described a high school headmaster as a “neo-Nazi” and a “theoretician of the entity ‘Golden Dawn .” His criminal conviction violated the freedom of expression!
JUDGMENT
Balaskas v. Greece 05.11.2020 (app. no. 73087/17)
SUMMARY
The case concerned a journalist’s complaint about his criminal conviction following an article he had
written criticising the headmaster of a local high school for posting the view on his personal blog
that the massive student uprising of 1973 was “the ultimate lie”. In his article the journalist, writing
for a Lesbos daily newspaper, had referred to the headmaster as a “neo-nazi” and “theoretician of
the entity ‘Golden Dawn’”.
The Court found in particular that the Greek courts had failed to balance the journalist’s right to
freedom of expression against the headmaster’s right to respect for private life, taking into account
the principles laid down in the Court’s case-law in such cases.
In particular, the courts had not taken into account the fact that: the article had contributed to a
debate on a matter of public interest; the headmaster was a public official who had himself
attracted attention to his political views via his blog and should therefore have been more tolerant
towards criticism; and, the applicant had brought to their attention the headmaster’s previously
posted articles on the Ayran Race and National Socialism as a factual basis to support the
expressions he had used in his article. Moreover, the courts had found the article insulting, without
taking into consideration the general context and its potential to give rise to considerable
controversy, or the language used which, although caustic, had not amounted to a gratuitous
personal attack on the headmaster.
COMMENT
In this decision against Greece, of particular interest is the facts that:
(a) the ECtHR’s explicit finding that a significant number of Greek courts fail to comply with its established case-law on balancing freedom of expression with regard to the protection of a person’s reputation, sentencing defendants to prison terms, judgment based on factual facts because they consider them unnecessary, and
(b) the report of the Court that there was no justification for the imprisonment of the journalist – applicant, which inevitably had a deterrent effect on the public debate.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Efstratios Balaskas, is a Greek national who was born in 1962 and lives in Mytilene
(Greece). He is a journalist.
On 17 November 2013, the anniversary of the 1973 Polytechnic School uprising which contributed to
the end of the military dictatorship in Greece and now celebrated as a school holiday, the
headmaster of a high school in Mytilene published an article on his personal blog under the title
“The ultimate lie is one: that of the Polytechnic School of 1973”.
Mr Balaskas, at the time editor-in-chief of the Lesbos daily newspaper Empros, published an article
in reaction to the headmaster’s blog, referring to him as a “neo-nazi” and “theoretician of the entity
‘Golden Dawn’”.
Following a criminal complaint filed by the headmaster, the first-instance court ruled that these
expressions constituted value judgments, and not facts, which intentionally insulted the headmaster’s honour and reputation. He was thus found guilty of insult via the press and given a suspended prison sentence.
All the applicant’s subsequent appeals were unsuccessful, ultimately in 2017. Both the Court of
Appeal and the Court of Cassation rejected in particular his argument that the expressions at issue
had been value judgments based on extensive evidence, namely numerous articles on the
headmaster’s website concerning the Ayran race and National Socialism and a message in which he
called for Greeks to vote for the far-right political party Golden Dawn. The courts considered that the
expressions the applicant had used were unnecessary, concluding that he could have employed
more decent phrases to exercise his right to inform the public.
Relying on Article 10 (freedom of expression), Mr Balaskas complained that his criminal conviction
had been disproportionate and that the courts had failed to strike a fair balance between his right to
inform the public on a matter of historical importance and the headmaster’s right to protection of
his reputation.
THE DECISION OF THE COURT…
The Court considered that the Greek courts had failed to balance the applicant’s right to freedom of
expression against the headmaster’s right to respect for private life. They had simply limited
themselves to finding that the statements at issue had been value judgments and had tarnished the
headmaster’s reputation, without taking into account the criteria established in the Court’s case-law
for carrying out such a balancing exercise.
In particular, the courts had not taken into account the applicant’s duty as a journalist to impart
information on a matter of public interest and the contribution of his article to such a debate. The
courts had focused on the expressions used by the applicant detached from their context, ignoring
the fact that the headmaster’s views had been capable of giving rise to considerable controversy.
Similarly, the courts had failed to explicitly address the fact that the headmaster, a civil servant
vested with public functions, had previously expressed his views on political matters through his blog
and had therefore willingly exposed himself to public scrutiny and journalistic criticism.
Nor had the courts assessed any good or bath faith on the applicant’s part. The courts had correctly
classified his expressions as value judgments, but they had failed to review whether they had been
supported by a clear factual basis, despite the fact that he had brought to their attention the
headmaster’s previously posted articles.
Moreover, contrary to the Government’s and domestic courts’ conclusions, the Court saw no
manifestly insulting language in the applicant’s remarks and the article, although caustic and containing serious criticism, could not as whole be understood as a gratuitous personal attack on the headmaster.
Lastly, there had been no justification for imposing a prison sentence in the applicant’s case, which
would inevitably have a chilling effect on public discussion.
Indeed, the Court noted that it had already found a violation of Article 10 of the Convention in a
number of cases against Greece owing to the domestic courts’ failure to apply standards in
conformity with its case-law concerning freedom of expression when weighed up against the
protection of an individual’s reputation.
The Court therefore concluded that the applicant’s criminal conviction had amounted to an
interference with his right to freedom of expression which had not been “necessary in a democratic
society”. There had, accordingly, been a violation of Article 10 of the Convention.
Just satisfaction (Article 41)
The Court held that Greece was to pay the applicant 1,603.58 euros (EUR) in respect of pecuniary
damage, EUR 10,000 in respect of non-pecuniary damage and EUR 1,258.60 in respect of costs and
expenses
