Statements on television about a matter of public interest at the expense of a minor’s guardian. The applicant’s criminal conviction for defamation! Condemnation of Greece by the Court for violation of freedom of expression
JUDGMENT
Kitsos v. Greece 22.09.2022 ( app. no. 21793/14)
SUMMARY
The applicant was convicted of defamation of two persons who were exercising their duties, one as a guardian to an adult and the other as a member of the supervisory board.
The applicant appeared on television and made accusations against the above two persons. In particular, the appellant claimed that the two persons in question had succeeded in setting up B.P. under judicial support, implementing a “satanic plan”, that they had “caused the disappearance of B.P.” and by administering drugs and psychological violence to B.P.. they had organized the transfer of part of the latter’s property to M.B.. for a price of negligible value and called them “crooks”.
Later these two persons were convicted of embezzlement for the above acts.
After they filed a lawsuit against the applicant, for his televised statements against them, the latter was convicted in the first degree for slanderous defamation and in the second degree for simple defamation. The appellate decision was also confirmed by the Supreme Court. The applicant claimed that his criminal conviction amounted to a violation of his right to freedom of expression under Article 10 of the ECHR.
The Court ruled that in this case the conflicting interests had to be weighed, on the one hand the right to freedom of expression and on the other hand the protection of the reputation of others. The Court first emphasized that the applicant’s statements were of such a nature that they could tarnish the reputation of the adult’s guardian and the member of the supervisory board.
However, in the Court’s view, the applicant’s comments contained a combination of facts, as accepted by the domestic courts, and value judgments which had some basis in fact, to the extent that they were supported by the subsequent criminal conviction of the accused persons for embezzlement/disloyalty. Furthermore, the impugned characterizations were not merely a private dispute, but touched upon matters of public interest, since they were officially made on national television.
The Court held that the reasons invoked by the national courts to justify the interference with the applicant’s right to freedom of expression were not “relevant and sufficient” and therefore found a violation of the right to freedom of expression under Article 10 of the ECHR. It awarded the applicant 7,500 euros as compensation for moral damage and 1,210 euros for court costs.
PROVISION
Article 10
PRINCIPAL FACTS
The application concerns the criminal conviction of the applicant for defamation of two persons who were exercising their duties as guardians of an adult.
On 13 December 2005 the applicant appeared on national television and made allegations against Th.G., the guardian of V.P., and M.V., a member of V.P.’s guardianship council (“the guardians”). In particular, the applicant alleged that the two individuals in question had managed to place V.P. under guardianship, thus implementing an “evil plan”, had “caused V.P. to disappear”, and – “by administering psychoactive medication to and exercising psychological violence on” V.P. – had organised the transfer of part of the latter’s property to M.V. for a token amount (έναντι ευτελούς αξίας); he also called them “crooks”.
In 2007 both Th.G. and M.V. were removed from their duties as guardian and member of the guardianship council respectively on account of acts and omissions which had not served the best interests of V.P., as they had exchanged part of V.P.’s real estate for a piece of property belonging to M.V. worth less than half its value. In criminal proceedings which followed and which ended in 2010, they were convicted of embezzlement in connection with the above-mentioned actions.
Following a criminal complaint by Th.G. and M.V., the applicant was convicted in 2012 at first instance of slanderous defamation on account of his statements on national television and received a suspended nine-month prison sentence. Following an appeal by the applicant, in 2013 he was given a suspended seven-month prison sentence for simple defamation. The appellate court considered that the applicant’s statements concerning V.P.’s placement under guardianship and the transfer of part of his property to M.V. for a token amount were facts and that the rest of the statements either amounted to or closely resembled statements of fact, which were, moreover, untrue and had damaged Th.G.’s and M.V.’s reputation. The fact that they had been removed from their duties or that they had been convicted of embezzlement on account of the exchange of V.P.’s real estate did not, by itself, make them “crooks”. However, the applicant had not known that his statements were untrue, so the appellate court changed the charges from slanderous defamation to simple defamation while rejecting the applicant’s argument that he had said those things out of legitimate interest.
Following an appeal on points of law by the applicant, the Court of Cassation upheld the judgment of the appellate court. It considered that the latter had included sufficient reasoning in its judgment. There was nothing contradictory in the appellate court’s acceptance of the fact that the real estate had been transferred at a low price, as that was different from the token amount referred to by the applicant. The Court of Cassation also rejected the applicant’s argument that the appellate court had erroneously interpreted Article 362 of the Criminal Code. The applicant further alleged a violation of his rights under Article 10 in relation to the hearing procedure, which would have rendered the entire judicial proceedings null and void. The Court of Cassation rejected it as inadmissible, reasoning that that the grounds for annulment on account of a violation of the Convention related to the merits and not to the hearing procedure, as the applicant had erroneously argued. On those grounds, he was trying to reverse the appellate court’s judgment which had concluded that the statements had been untrue and that he had consequently exceeded the limits of freedom of expression. In any event, his right to freedom of expression had not been violated.
The applicant complained before the Court that his criminal conviction amounted to a breach of his right to freedom of expression guaranteed by Article 10 of the Convention.
THE DECISION OF THE COURT…
The Court notes from the outset that: the applicant’s conviction amounted to an “interference by public authority” with his right to freedom of expression; the interference was prescribed by Article 362 of the Criminal Code; and it pursued the legitimate aim of protecting the reputation or rights of others.
The general principles for assessing the necessity of an interference with the exercise of freedom of expression have recently been summarised in Balaskas v. Greece (no. 73087/17, §§ 36-39, 5 November 2020).
Applying those principles in the circumstances of the instant case, the Court notes first that the applicant’s statements were of such a nature that they could have tarnished the reputation of Th.G. and M.V. and that, consequently, they attained the requisite level of seriousness to attract the protection afforded by Article 8 of the Convention in relation to them. The domestic courts classified the impugned statements by the applicant as amounting to or closely resembling statements of fact and considered them to be untrue. However, they did not provide convincing reasons for that conclusion. In the Court’s view, the applicant’s comments contain a combination of statements of fact, as accepted by the domestic courts, and value judgments which had some factual basis, in so far as they were supported by the subsequent removal of the guardians from their duties and their criminal conviction for embezzlement. The domestic courts rejected the applicant’s argument about the relevant factual basis without providing sufficient reasoning (see Matalas v. Greece, no. 1864/18, § 53, 25 March 2021). They merely assessed whether the expressions used in the official document had been capable of causing damage to the plaintiffs’ personality rights and reputation, without assessing how the plaintiffs’ criminal conviction and removal from their duties as guardians had affected the charges against the applicant.
Furthermore, the domestic courts did not take into account the context within which the statements were made. Contrary to the Government’s arguments, the impugned characterisations did not merely concern a private dispute but touched upon issues of public interest (see Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 103, ECHR 2015 (extracts)), as was also demonstrated by the fact that the statements were made on national television. Th.G. and M.V. had assumed their duties as court-appointed guardians of a person who was well known in Corfu and they could therefore have expected a certain degree of public scrutiny concerning the way they had acted in that capacity. The domestic courts did not examine the interview given by the applicant as a whole, but rather focused on the characterisations used by him, detached from their context. Therefore, they failed to include in their assessment any considerations as regards the contribution of the applicant’s interview to a matter of public interest and to the scrutiny the guardians should have expected regarding their actions. As regards the sentence imposed on the applicant, there were no exceptional circumstances in the instant case which would have justified the imposition of a prison sentence (see Balaskas),.
The above elements lead the Court to conclude that the reasons adduced by the domestic courts to justify the interference with the applicant’s right to freedom of expression were not “relevant and sufficient” and that the balancing exercise between his right to freedom of expression and the plaintiffs’ right to respect for their private life was not carried out in conformity with the Convention standards. There has accordingly been a violation of Article 10 of the Convention.
