Balaskas v. Greece (Application no. 73087/17)

A selection of key paragraphs can be found below the judgment.

61.  Lastly, the nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see Katrami v. Greece, no. 19331/05, § 38, 6 December 2007; Mika, cited above, § 32; and Athanasios Makris, cited above, § 38). In the instant case, the Court takes into account that the applicant was sentenced to a three-month suspended prison sentence. In that regard, the Court reiterates that while the use of criminallaw sanctions in defamation cases is not in itself disproportionate (see Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004II; Lindon, OtchakovskyLaurens and July, cited above, § 47; and Ziembiński v. Poland (no. 2), no. 1799/07, § 46, 5 July 2016), a criminal conviction is a serious sanction, having regard to the existence of other means of intervention and rebuttal, particularly through civil remedies (see Frisk and Jensen v. Denmark, no. 19657/12, § 77, 5 December 2017). The Court has emphasised on many occasions that the imposition of a prison sentence in defamation cases will be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 115, ECHR 2004XI, and Paraskevopoulos, cited above, § 42). It considers that the circumstances of the instant case – a classic example of criticism of a person known in the local community in the context of a debate on a matter of public interest – presented no justification for the imposition of a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect on public discussion, and the notion that the applicant’s sentence was in fact suspended does not alter that conclusion particularly as the conviction itself was not expunged (see Marchenko v. Ukraine, no. 4063/04, § 52, 19 February 2009, and Malisiewicz-Gąsior v. Poland, no. 43797/98, § 67, 6 April 2006). 

64.  The Court is mindful of the fundamentally subsidiary role of the Convention system (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 175, ECHR 2016). Indeed, if the balancing exercise had been carried out by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for theirs (see Perinçek v. Switzerland [GC], no. 27510/08, § 198, ECHR 2015 (extracts)). However, in the absence of such a balancing exercise at national level, it is not incumbent on the Court to perform a full proportionality analysis. Faced with the domestic courts’ failure to provide relevant and sufficient reasons to justify the interference in question, the Court finds that they cannot be said to have applied standards which were in conformity with the principles embodied in Article 10 of the Convention. The Court concludes that the interference with the applicant’s right to freedom of expression was not “necessary in a democratic society”. 

65.  There has, accordingly, been a violation of Article 10 of the Convention.