CEDH · CASELAW;CLIN;ENG — 11 octobre 2007

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Greece - 28504/05 Judgment 11.10.2007 [Section I] Article 10 Article 10-1 Freedom of expression Criminal conviction of a patient for defamation of a plastic surgeon following the publication in the tabloid press of articles about her case: violation   Facts : Immediately after breast reduction surgery performed by Dr X., the applicant complained of severe pains. Dr X. informed her that histological tests had revealed the existence of cancerous tissue in both breasts, which would have to be surgically removed. A mastectomy was then performed by a different doctor. Dr X. subsequently inserted silicone implants and had to operate on the applicant several times, before eventually removing both implants. The applicant continues to suffer from severe after-effects. In July 2001 the applicant brought an action for damages against Dr X. and the private clinic where he had performed the operations. She subsequently brought a further action against the doctor who had performed the mastectomy. The proceedings are still pending before the Athens Court of First Instance. In the meantime the tabloid press published statements allegedly made by the applicant during interviews. Dr X. lodged a complaint against the applicant for defamation. The court found that the remarks reported in the press were liable to damage Dr X.’s honour and reputation, and that the applicant knew that the allegations were false. It found the applicant guilty and sentenced her to a suspended term of 13 months’ imprisonment. The sentence was subsequently reduced to five months, suspended. The applicant appealed on points of law, arguing, in particular, that several of the phrases on which her conviction had been based had come not from her but from the authors of the articles. The Court of Cassation dismissed the appeal. Law : Article 6 § 1 – The still pending civil proceedings for damages had lasted for over six years to date, at one level of jurisdiction. Such a period was excessive and failed to satisfy the “reasonable-time” requirement. Conclusion : violation (unanimously) Article 10 – Rejection of the preliminary objection of failure to exhaust domestic remedies : In her appeal the applicant had relied expressly on Article 14 of the Greek Constitution, which protected the right to freedom of expression, to defend her right to criticise the doctor who had operated on her. The complaint she had made was thus clearly linked to the alleged violation of Article 10 of the Convention. Merits – In the framework of Article 10, the custodial sentence handed down to the applicant, although suspended, was disproportionate to the aim pursued. Publication of the articles in question might have had an adverse effect on the doctor’s professional image, but the interest in protecting his reputation had not been sufficient to justify a custodial sentence while an action for damages was still pending. Even assuming that the applicant had been at fault, the means available under civil law would have sufficed to settle the matter and protect the doctor’s reputation. There was no denying that the applicant had undergone a painful experience and still suffered from serious after-effects. It was therefore surprising to say the least that she should have been given a prison sentence too, for having expressed her suffering without any apparent intention other than to give vent to her distress. While she might have expressed herself in coarse and virulent terms, it had to be borne in mind that the expressions used had reflected her own perception of the seriousness of her condition. Furthermore, her statements contained nothing to suggest bad faith on her part. It was important not to confuse the intentions of the applicant with those of the sensationalist press, which had taken an interest in the case in particular because the doctor was well known. Yet this seemed to be what had happened before the Greek courts, which had failed to place the applicant’s remarks in the particular context of the case, or to take proper account of the distress felt by the applicant when she had made the statements. The restriction of the applicant’s right to freedom of expression had therefore not been reasonably proportionate to the legitimate aim pursued. Conclusion : violation (five votes to two) Article 41 – EUR 503 for pecuniary damage and EUR 8,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes