Politicians face to face with freedom of expression in the light of Article 10 of the ECHR
of Eulambia (Bias) Tsolaki, Lawyer
I. The protection of freedom of expression
Freedom of expression is justifiably considered a cornerstone of democracy because it cultivates a fertile environment to ensure that dissent and minority opinion can be challenged, in the form of criticizing and highlighting the interests of each state and its actors. majority position of the authoritarian system.
In the Greek Constitution it is protected under article 14 § 1 Coll. both in its positive and in its negative version [1]. Positively, it is defined as the right “to receive, to formulate, to have, to express and to disseminate opinions and, to a certain extent, information, without any obstruction, harassment or adverse legal consequences” [2].
In fact, it is aptly excluded that in addition to its active dimension, which refers to the right of everyone to express themselves freely [3], its passive appearance is equally protected, which is essential to the public’s right to information and therefore to its safeguarding. pluralism of sources of information [4]. Negatively, it means and implies that no one should be forced to express his opinion [5].
However, regardless of the interconnection of the protection provided under this protection with the respective subject, ie its body, above all, it is rightly secured as an institutional guarantee, objectively protected, because allowing the free and pluralistic formation of public opinion [ 6], finally becomes a key factor in the realization of Popular sovereignty and consequently of the Democratic principle (art. 1 §§ 1 and 2 Coll.).
Holders of the right to free expression are recognized without discrimination both Greeks and foreigners, while recipients, ie obliged to respect its exercise, are in addition to the state and individuals [7]. However, the limits of its protection against the latter are not clearly outlined [8] because, in contrast to state actors, individuals are in general subjects of constitutional rights and freedoms and therefore often the exercise of freedom of expression. from one subject comes into conflict with another equally constitutionally protected legal property of another subject, in which case the crucial question of their mutual delimitation arises.
Given that the Greek Constitution in principle does not promote a priori an in abstracto hierarchy of constitutional rights, with the result that they are treated as formal equivalents, any conflict is resolved in concreto on the basis of ad hoc critical facts, according to its logic. the so-called “practice of their harmonization” [9], in which the judge must, by refraining from absolute “black-and-white” approaches, seek to maximize their coherence.
In view of its importance for the democratic functioning of the rule of law, the recognition of freedom of expression could not be absent from the list of protected goods adopted by the ECHR, which is explicitly enshrined in Article 10. According to § 1 of it, stipulates that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from subjecting radio, film or television companies to licensing regulations. ”
§ 2 further clarifies that its exercise may be subject to “certain formalities, conditions, restrictions or sanctions, provided by law and constituting necessary measures in a democratic society for national security, territorial integrity or public security, the safeguarding their order, preventing the disclosure of confidential information or ensuring the validity and impartiality of the judiciary ‘.
In addition to the above legitimate limits, as in the context of national law, in this case the major question arises of the additional permissible barriers that may be placed on freedom of expression in view of and under the protection of other recognized goods in favor of otherness, as is more commonly the case. the protection of the right to respect for private and family life enshrined in Article 8 of the ECHR.