Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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This case concerns the convictions of Mr. Koutsoliontos and Mr. Pantazis for malicious defamation and insult as a result of the publication of a press article which, according to the Greek courts, had breached a politician’s honor and reputation.
The Court held that Article 10 of the European Convention on Human Rights (ECHR) had been violated on the basis that national authorities had not provided relevant and sufficient reasons to justify the applicants’ conviction to pay civil damages for insult and defamation, and that the applicants’ conviction did not meet a “pressing social need”. [para. 47–48]
The first applicant, Vassilios Koutsoliontos, was born in 1949 and is the owner and editor of a local newspaper called Proinos Logos (Morning Speech) in the city of Ioannina. The second applicant, Spyridon Pantazis, was born in 1951 and is the Director of Modern Historic Monuments in Ioannina as well as a former City Councillor and Deputy Mayor.
On September 21, 2004, Mr. Pantazis, the second applicant, published an article in Proinos Logos which criticized the action of Filippos Filios, mayor of the city from 1986 to 1994 and leader of a political party. The article included, inter alia, criticisms of the operation of the hotel Xenia, describing Mr. Filios as managing to operate the hotel as a collectivist business, which naturally led to its bankruptcy, as well as criticisms of the overall behavior of the former mayor in politics and described him as “suffering from Alzheimers”. The article also said that Mr. Filios’ conduct regarding the aforementioned was not “one of his infantile, immature and immoral pranks” but rather an indication of the “senile dementia which characterizes his attitude and his political behavior”. [para. 9]
On November 18, 2004 , Mr. Filios brought an action against the appellants before the Court of First Instance of Ioannina. According to that court, there are limits of freedom of the press guaranteed by Article 10 of the Convention, and as the editor did not respect Mr. Filios and the duty to truth, they fell under those exceptions. The trial court thus convicted the applicants, and ordered civil damages of €15,000 to be paid jointly and severally.
On February 7 and March 7, 2006, respectively, the applicants appealed to the European Court of Human Rights on points of law against the decision No. 267/2005, citing, inter alia, a violation of Article 10 of the Convention. Initially, the Greek Government pleaded the inadmissibility of the requests on the grounds that they were late because they were introduced more than six months after February 16, 2009, when the Court of Cassation delivered its judgments. The Court however reiterated that under its established case law, where the significance of the final decision is not under national law, as in this case, it should consider the date from which the parties can actually take knowledge of its content and therefore the applications were not considered late. Given the similarity of the query on the facts and the substantive questions which they refer, the Court decided to join them and to examine them together in a single judgment.
The Government relied on the jurisprudence of the European Court of Human Rights that the motivation of the person making the disclosure of information is one of the determining factors for the assessment of whether or not the process should receive protection. For example, an act motivated by a personal grievance or enmity, or by the prospect of personal advantage, including pecuniary gain does not justify a particularly high level of protection. It is therefore important to establish whether the person concerned, by making the disputed disclosure, acted in good faith. In the Government’s view, the statements expressed in the articles were deprived of a sufficient factual basis and stemmed from a personal dispute between Mr. Pantazis and Mr. Filios.
The applicants argue that the criticisms made in the article were not targeting the respondent as a private person, but rather that they related to his actions as a politician and had been issued by the editor of the article as part of a political dispute, which allow criticism and employment bluntly. The applicants also relied on the public interest, as the contested article focused on issues which were of interest to both the applicants as well as everyday readers, because such issues concerned the society of the city of Ioannina. Furthermore, the applicants also examined the chilling effect, claiming that a restriction of political criticism in a democratic society, would discourage people to speak freely and to formulate political criticisms. Finally, the applicants argued that the domestic courts had conducted a selective appreciation of certain sentences which they isolated form the entire body of the article in question.
The Court, in its turn, proceeded to apply the three-part proportionality test to the restriction on freedom of expression, as required by Article 10(2) of the ECHR. The Court determined that the interference was both prescribed by law and in pursuit of a legitimate aim, and therefore the remaining question at issue was only whether the interference was necessary in a democratic society. The order of civil damages against the applicants in this case constituted a violation of Article 10 particularly because there was no reasoning from the domestic courts with regard to the distinction between facts and value-judgments as well as the fact that the persons acted in a public context and the article in question was contributing to a debate in the general interest.” The Court considered that political invectives often spill on a personal level but that these are the hazards of politics and the free debate of ideas- two necessary guarantors of a democratic society. [para. 45]
As a result, the Court held that the Greek authorities did not provide relevant and sufficient reasons to justify the applicants’ conviction to pay civil damages, and that in this specific context preventing the insult and defamation to the Respondent, did not constitute a “pressing social need”. [para. 47] The Court also noted that the style of the article was “polemical, sarcastic, incisive and provocative”. [para. 43] The issue of style is usually invoked in the context of satire, but the Court rightly points out that it is not the responsibility of the domestic courts to “indicate to the person the style to use when they exercise the right of criticism.” [para. 43]
In light of the foregoing, the Court awarded those concerned the sums requested, namely 10,269.50 euros to the first applicant 10,200 EUR and the second applicant for pecuniary damage.
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