CEDH · CASELAW;CLIN;ENG — 27 juin 2023

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Greece (dec.) - 47833/20 Decision 27.6.2023 [Section III] Article 10 Article 10-1 Freedom of expression Conviction of senior Greek Orthodox Church official for article published on personal blog containing hate speech and incitement to violence targeting homosexuals: inadmissible Article 17 Destruction of rights and freedoms Conviction of senior Greek Orthodox Church official for article published on personal blog containing hate speech and incitement to violence targeting homosexuals: inadmissible Facts – On 4 December 2015, the applicant, who was at the time the Metropolitan of Kalavryta and Aigialeia, published an article on his personal blog titled “THE SCUM OF SOCIETY HAVE REARED THEIR HEADS! Let’s be honest SPIT ON THEM” containing speech targeting homosexuals. The Hellenic Parliament was then debating proposed legislation introducing civil unions for same-sex couples. The text of the article was reproduced by multiple websites, media outlets and social media. On 21 December 2015 the applicant published another article on his blog seeking to clarify that he had not incited violence but had targeted politicians and that the reproduction of his initial article by the media had been false. The applicant was eventually convicted of the misdemeanour of public incitement to violence or hatred against people because of their sexual orientation and sentenced to five months’ imprisonment (suspended), pursuant to Law no.   927/1979 which was based on the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, as ratified by Greece by Legislative Decree no.   494/1970, and on Council Framework Decision 2008/913/JHA of 28   November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. Law – Articles 10 and 17: The domestic courts had found that in his article the applicant had targeted homosexual people when Parliament had been debating the proposed legislation on civil unions for same-sex couples. That legislation, which had come into force on 24   December 2015, had been introduced following the Court’s judgment in Vallianatos and Others v.   Greece [GC]. The courts, had carefully examined the evidence before them, had heard witnesses and had conducted a balancing exercise which had taken the applicant’s right to freedom of expression into account. The Court of Cassation had concluded, as the appellate court, that his right had not been violated, as his views had been liable to cause discrimination and hatred against homosexual people. In this connection, they had found that while certain expressions used had referred to politicians, most of the applicant’s remarks had concerned homosexual people. It was clear from the article’s content that the applicant had referred to those who “experience or support homosexuality” and that the majority of his remarks had included expressions commonly used by people who shared his views in referring to homosexual people. Even the expressions of incitement directed against politicians who had wished to vote for the proposed legislation, such as “blacken them out”, had been in fact targeting homosexual people. Such phrases could not be seen separately but had to be read as directly connected with the applicant’s intention to diminish homosexual people. Those conclusions had not been rebutted by the applicant’s subsequent article and the retrospective clarification therein that he had referred to politicians could not alter the initial article’s content. The Court did not find any elements indicating that the domestic courts had not based their findings on an acceptable assessment of the relevant facts. The Court then held that the applicant could not by reason of Article   17, claim the benefit of the protection afforded by Article   10. Firstly, the Court considered the nature to the content, tone and context of the disputed article, which had included incitement to violence and dehumanising hate speech against a group of people identified on the basis of their sexual orientation, elements which had been extensively examined by the domestic courts. The Court agreed with their conclusions, reiterating that regard had to be had to the words used and the context in which they were published, with a view to determining whether the texts taken as a whole could be regarded as incitement to violence. The applicant had used harsh expressions which had gone so far as to deny homosexual people their human nature (“They are not humans! They are perversions of nature!”) and had gone beyond expression of opinion, even in offending, hostile, or aggressive terms (“They are the scum of society, marginal people, defective, humiliated, people of the dark, who now, with the rising of the left, have reared their heads!... They are the damned of Society!” and “They are suffering mentally and spiritually! They are people with a mental disorder! Unfortunately, these people are worse and more dangerous than some of the people living in nuthouses”). The applicant’s article had also included multiple incitements to violence. The use of the phrase “spit on them”, coupled with the phrases “condemn them”, “blacken them out” and “do not go near them”, had clearly been used in the context of the article in their literal sense. Those phrases, which had been repeated in the article preceded by the phrase “do not hesitate”, could have caused homosexual people to feel stress, anguish and terror as, coupled with the hate speech throughout the article, they had been capable of stirring up violence against them. Many witnesses in the domestic proceedings had expressly stated they had felt threatened as homosexual people and that the publication and reproduction of the article had caused them feelings of fear. Secondly, the applicant, who had been a senior official of the Greek Orthodox Church, had had the power to influence not only his congregation but also many other people who adhered to that religion, that was to say, the majority of the Greek population. Thirdly, the applicant had disseminated his remarks on the Internet, which had made his message easily accessible to thousands of people. While the applicant’s blog did not appear to have a wide readership, his article had been reproduced by several media outlets and was still accessible online. Lastly, the applicant’s views comments had related directly to an issue which was of high importance in modern European society – protection of people’s dignity and human value irrespective of their sexual orientation. His comments had targeted homosexuals who might be seen as requiring enhanced protection. The Court had previously found that gender and sexual minorities required special protection from hateful and discriminatory speech because of the marginalisation and victimisation to which they had historically been, and continue to be, subjected. The Court also noted the low levels of acceptance of homosexuality and the situation of LGBTI people in the national context as had been identified in international reports. Article   17 was only applicable on an exceptional basis and in extreme cases. In that connection, the Court stressed that discrimination based on sexual orientation was as serious as discrimination based on “race, origin or colour”. Having regard to the nature and wording of the disputed statements, the context in which they were published, their potential to lead to harmful consequences and the reasons adduced by the Greek courts, the Court considered that it was immediately clear that the statements had sought to deflect Article   10 from its real purpose by employing the right to freedom of expression for ends clearly contrary to the values of the Convention. Criticism of certain lifestyles on moral or religious grounds was not in itself exempt from protection under Article   10. However, when the impugned remarks went as far as denying LGBTI people their human nature, as in the present case, and were coupled with incitement to violence, then engagement of Article   17 should be considered. The applicant, a senior official of the Church, had not only disseminated expressions amounting to the gravest form of hate speech, given their severity and the actual content, but had also coupled them with incitement to violence and shared them through his personal blogspot, which had later been reproduced by several media outlets. His case was thus distinguishable from that of Lilliendahl v.   Iceland , in which the comments had included hate speech which had not been considered to reach the threshold of the gravest forms of hate speech, had not included incitement to violence and had been expressed by “a member of the general public not expressing himself from a prominent platform likely to reach a wide audience”. Conclusion : inadmissible (incompatible ratione materiae ). (See also Vallianatos and Others v.   Greece [GC], 29381/09 and 32684/09, 7   November 2013, Legal Summary ; Roj TV A/S v.   Denmark (dec.), 24683/14, 24   May 2018, Legal Summary ; Lilliendahl v.   Iceland (dec.), 29297/18 , 12   May 2020; International Convention on the Elimination of All Forms of Racial Discrimination of 21   December 1965 ; Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law of 28   November 2008 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .