CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 15 octobre 2024

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Marioli, and their Agent’s delegate, Mr K. Georgiadis, President and Legal Counsellor respectively at the State Legal Council; the parties’ observations; the comments submitted by Mr Nikos Kotzias, who was granted leave to intervene by the President of the Section (Article 36 § 2 of the Convention and Rule 44 § 3 (a) of the Rules of Court); the withdrawal in November 2022 of Mr Ioannis Ktistakis, the judge elected in respect of Greece, from sitting in the case (Rule 28 § 3); the decision to reject the unilateral declarations presented by the Government in both applications; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The applications concern civil defamation proceedings instituted against the applicants, in their capacities as co-directors, journalist and editor of the magazine “The Athens Review of Books”, following the publication of an article. 2.     In June 2010 the second applicant, as a journalist, published an article in the monthly magazine “The Athens Review of Books”, of which the first and fourth applicants were co-directors and the third applicant was the owner and editor. 3.     The article criticised the designation of the main amphitheatre of the Old Parliament House as the venue for the presentation of a book by Mr   Kotzias, a Greek politician and university professor. It included comments on Mr Kotzias’ political path such as: “we are talking about the most extreme and fanatical, harsh and relentless Communist Youth supporter of our/his generation, a real Gauleiter of Stalinism”, and “he was not a mere partisan and admirer but also a zealous proponent” of the Honecker regime. The article claimed that “Mr   Kotzias ... studied with the kind assistance of the political party in East Germany, at the time when the butcher Honecker was all-powerful”, and that he was a “mutated town crier of Honecker”. Lastly, the article stated that those who “... occupy the ports, beleaguer the ministries or declare that they do not recognise the Constitution must, I am sure, have been followers of Mr   Kotzias or even students of his (then?) political thinking.” 4 .     In June 2010 Mr Kotzias lodged a civil action against the applicants complaining that the article constituted slanderous defamation and seeking compensation. His action was partially granted at first instance. Following appeals by the applicants, the Athens Court of Appeal, by decision no.   4034/2015, awarded Mr Kotzias 10,000 euros (EUR). It focused on certain expressions and considered that they were untrue, that the fourth applicant had failed to check the veracity of those statements and that he had insulted Mr   Kotzias intentionally, as proved by the presentation of those statements as facts and not as rumours. Therefore, the defendants’ objections concerning the social mission of the press had to be dismissed. 5 .     In decision no. 697/2017 of 4 May 2017, finalised on 9 June 2017, the Court of Cassation upheld the judgment of the appellate court, following an appeal lodged by applicants in case no. 83043/17. The Court of Cassation, after citing the Court’s case-law on freedom of expression, held that the phrases “Gauleiter of Stalinism”, “the most extreme and fanatical, harsh and relentless Communist Youth supporter of our/his generation”, “he was not a mere partisan and admirer but also a zealous proponent” of the Honecker regime and a “mutated town crier of Honecker” were very strong value judgments that could have damaged Mr   Kotzias’   reputation, as they were used to present him as a person with extreme and authoritarian views who intended to suppress opposing views and his opponents. They were linked in the article with certain factual allegations which had been proved to be untrue, such as that Mr Kotzias, through his books and articles, had been a proponent of the Honecker regime, that he had studied in East Germany with the assistance of the Communist Party (whereas he had studied in West Germany without assistance of the Communist Party) and that the people who had occupied the ports had been followers and students of Mr Kotzias’ political thinking. It confirmed the Court of Appeal’s reasoning that while it had been proven that Mr Kotzias was among the leading figures of the Communist Youth of Greece and of the Communist Party of Greece and had been actively participating in the political life of the left wing, under no circumstances a connection could be established between him and the Honecker regime or its extreme methods, nor could it be discerned from Mr Kotzias’ writings (which the applicants had invoked and adduced) that he admired and promoted it. One of the applicants’ grounds for cassation stated that the Court of Appeal had failed to take into account certain documents adduced by them, namely a copy of the magazine “Communist review” and a copy of Mr Kotzias’ book. However, the Cassation Court found that it was clear from the Court of Appeal reasoning that the latter had duly taken into account all relevant documents and did not find, contrary to the applicants’ allegations, that those proved his admiration of the East Germany communist regime. In view of the above, the applicants had committed slanderous defamation. 6.     The applicants complained to the Court that the civil proceedings for defamation in which they had been ordered to pay EUR 10,000 to Mr Kotzias because of the article they had written and published had violated their right to freedom of expression. THE COURT’S ASSESSMENT Joinder of the applications 7.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. Complaint under Article 10 of the Convention 8.     The Government did not submit observations on the admissibility and merits, nor did they reply to the third-party intervener’s comments. 9.     The applicants argued that the domestic courts had violated their right to freedom of expression. In particular, the courts had failed to apply the criteria established in the Court’s case-law and had not taken into account that the article referred to a politician, that it concerned a matter of political interest, and that the expressions used, even if harsh, were value judgments based on facts of Mr Kotzias’ position and views. The only fact that had proven to be inaccurate was that Mr Kotzias had studied in East Germany; that itself did not constitute defamation and had been reported in the past in other newspapers, therefore the applicants had acted in good faith. 10.     Mr Kotzias, the third-party intervener, focused his comments mostly on the admissibility of the applications. He further submitted that phrases used and the allegation that he had studied in East Germany with the “kind assistance” of a political party constituted defamation based on fake news. The applicants had intentionally used false pieces of evidence and derogatory terms, such as “ Gauleiter ” which in essence meant a Nazi commander; while in 1942-43, Krakow’s Gauleiter had slaughtered members of his mother’s family. In his view, the domestic courts had considered all the essential elements and had come to the right conclusion, as the applicants had not acted in good faith, had failed to provide accurate information and had exceeded any boundaries of criticism. 11.     It is not in dispute between the parties that the civil defamation proceedings complained of amounted to an interference with the applicants’ right to freedom of expression, or that they were “prescribed by law” and pursued the legitimate aim of “the protection of the reputation ... of others”. It remains to be established whether they were “necessary in a democratic society” (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 160, 27 June 2017). 12.     The Court has frequently reaffirmed the general principles concerning the necessity of any interference with freedom of expression in a democratic society (see, among many authorities, Baka v. Hungary [GC], no.   20261/12, § 158, ECHR 2016, and Bédat v. Switzerland [GC], no.   56925/08, §§   48-54, ECHR 2016). In its case-law, the Court has also identified a number of relevant criteria where the right to freedom of expression is balanced against the right to respect for private life (see   Axel Springer AG v. Germany [GC], no. 39954/08, §§   82-95, ECHR 2012, and Von Hannover v. Germany (no.   2) [GC], nos.   40660/08 and 60641/08, §§   101-113, ECHR 2012). 13.     Applying those principles in the circumstances of the present case, the Court notes at the outset that the fourth applicant’s statements were of such a nature that they could have tarnished the reputation of Mr Kotzias and that, consequently, they attained the requisite level of seriousness to attract the protection afforded by Article 8 of the Convention. 14.     The Court observes that the article in question concerned the designation of the main amphitheatre of the Old Parliament House as the venue for the presentation of a book by Mr Kotzias, a topic relevant to Greek politics which, thus, constituted information of public interest. The article consequently attracts a high level of protection under Article   10, with the authorities having a particularly narrow margin of appreciation (see,   among many authorities, Morice v. France [GC], no. 29369/10, §   125, ECHR 2015). Moreover, Mr Kotzias is a Greek politician and university professor. The Court therefore accepts that he was a “public figure” for the purposes of the Court’s case-law (see Couderc and Hachette Filipacchi Associés v. France [GC], no.   40454/07, §§   117-123, ECHR 2015 (extracts)), and that consequently he had to display a greater degree of tolerance towards criticism and public scrutiny. 15.     At the same time, Article 10 of the Convention does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern and of political figures. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it “duties and responsibilities”, which are liable to assume significance when, as in the present case, there is a question of attacking the reputation of named individuals and undermining the “rights of others”. By reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Rumyana Ivanova v. Bulgaria , no.   36207/03, § 61, 14 February 2008, and Europapress Holding d.o.o. v.   Croatia , no. 25333/06, § 58, 22 October 2009). Indeed, in situations where on the one hand a statement of fact is made and insufficient evidence is adduced to prove it, and on the other the journalist is discussing an issue of genuine public interest, verifying whether the journalist has acted professionally and in good faith becomes paramount (see Ivanovic and Doo Daily Press v. Montenegro (dec.), no. 24387/10, § 66, 5 June 2018). 16.     The Court firstly notes that the domestic proceedings were civil and not criminal. It is also apparent from their judgments that the domestic courts fully recognised that the present case involved a conflict between the right to freedom of expression and protection of the reputation or rights of others, which they resolved by weighing the relevant considerations. In their reasoning the domestic courts balanced the conflicting rights and considered that it was necessary to restrict the applicants’ freedom of expression in order to protect the reputation of Mr Kotzias (see paragraph 5 above). 17.     With regard to the classification of the statements at issue, namely “ Gauleiter of Stalinism”, “admirer and proponent of the Honecker regime”, “mutated town crier of Honecker”, the claim that Mr Kotzias had studied in East Germany and the assertion that many of the people who had occupied the ports must have been his followers, the appellate court considered those phrases to be statements of fact. The Court of Cassation later considered the first and third phrases to be value judgments and classified the second as both value judgment and fact (see paragraph 5 above). It considered the rest of the phrases to be statements of fact. The Court sees no reason to depart from that reasoned assessment. 18.     The Court considers that phrases such as “ Gauleiter of Stalinism”, “admirer and proponent of the Honecker regime” and “mutated town crier of Honecker” were value judgments in respect of which the question is whether a sufficient factual basis existed. The Court’s case‑law is clear on the point that the more serious the allegation is, the more solid the factual basis should be (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §   78, ECHR 2004-XI, and Rumyana Ivanova , § 66, cited above). The allegations in the instant case were sufficiently serious as Mr Kotzias was presented as proponent and admirer of Honecker regime known for its extreme methods, in particular in respect of its political opponents. There is nothing in the case file, however, to indicate that the applicants in the present case were concerned with verifying the truth or reliability of these allegations to a high standard. In particular, in the impugned article, the fourth applicant linked those value judgments with certain facts, namely that Mr Kotzias had studied in East Germany with the Communist Party’s assistance during the Honecker regime and that many of the people who had occupied the ports must have been his followers. However, as underlined by the Court of Cassation, these facts were proved untrue. While the applicants provided some documentary evidence in the domestic proceedings to demonstrate that Mr Kotzias was an admirer of socialism and had expressed positive views about East Germany (see paragraph 5 above), none of it proved Mr Kotzias’ support or admiration of the Honecker regime. The factual allegation that he had studied in East Germany with the assistance of the Communist Party proved to be untrue, as Mr Kotzias had studied in West Germany with no evidence that he had received financial or other assistance from the Communist Party. Finally, there was no proof whatsoever that “many of the people who had occupied the ports” had been Mr Kotzias’s students or followers. 19.     To conclude, the domestic courts regarded the statements of fact as untrue because the applicants had failed to provide sufficient proof and the value judgments as excessive given the complete lack of factual basis to support them. They concluded that the applicants had intentionally insulted Mr Kotzias, had presented him as a proponent of the Honecker regime and thus a fanatical person with extreme views and totalitarian ideas. This has amounted to slanderous defamation and was capable of tarnishing Mr   Kotzias’s reputation, as the domestic courts have concluded (see paragraph   5 above). The Court aligns with the domestic courts’ assessment that the boundaries of responsible journalism have been overstepped in the present case (compare Thomaidis v. Greece , no. 28345/16, § 36, 7 May 2024). 20.     The Court further observes that the applicants were found to be civilly liable and ordered to pay EUR 10,000 in non-pecuniary damages, in addition to EUR 800 for the claimant’s costs and expenses. The Court attaches particular weight to the fact that the compensation was awarded against the applicants jointly (see Ivanovic and Doo Daily Press , cited above, § 75). It was neither argued nor shown that an award of that amount would have any serious impact on the applicants’ financial situation. It therefore is satisfied that the award of damages bore a reasonable relationship of proportionality to the injury to the reputation suffered (compare Thomaidis , cited above, §   37). 21.     In conclusion, the Court finds that a fair balance was struck at the domestic level between the competing rights in question, and that the national courts provided sufficient and relevant reasons for justifying the necessity of the interference with the applicants’ freedom of expression. It discerns no strong reasons which would require it to substitute its view for that of the domestic courts and to set aside the balancing done by them (see Satakunnan Markkinapörssi Oy and Satamedia Oy , cited above, §   198). 22.     It follows that the application is manifestly ill-founded and that it must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 14 November 2024.     Olga Chernishova   Peeter Roosma   Deputy Registrar   President   Appendix List of cases: No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 82623/17 Kanellis and Pappas v.   Greece 06/12/2017 Ilias KANELLIS 1960 Νeo Psychiko Greek Andreas PAPPAS 1950 Athènes Greek Nicos C. ALIVIZATOS 2. 83043/17 Vasilaki and Vasilakis v.   Greece 06/12/2017 Maria VASILAKI 1961 Neo Psychiko Greek Emmanouil VASILAKIS 1955 Neo Psychiko Greek Vassilis CHIRDARIS