Introductory Remarks
The new Law 5090/2024, published in the Greek Government Gazette (A' 30/23.2.2024), brought significant changes to the provisions of the Penal Code. Some of the most interesting and impactful interventions of this piece of legislation concern crimes against honor (including the criminal offences of 'insult', 'defamation' and 'slanderous defamation').
Below we summarize the new amendments and give an insight into the changes and their impact in the judicial practice.
The main provisions of Law 5090/2024 on crimes against honor
In a nutshell, the amendments that have been brought forward are as follows:
a) Amendment of Art. 361 of the Penal Code on the offence of 'insult':
- Under the new law, the offense of insult has been amended to require intent as its mens rea. In other words, the alleged expression by the perpetrator -perceived as degrading or insulting to the victim's honor- must be specifically intended to achieve that effect. Previously, potential intent ('dolus eventualis') sufficed to substantiate the offense.
- The new law introduces a more aggravated form of the offense of insult, particularly for cases where the insult occurs publicly or over the internet and targets the private or family life of the victim. This enhanced form carries a penalty of up to two years of imprisonment or a monetary fine, compared to the basic offense, which is punishable by up to six months of imprisonment.
- The last amendment brought to the offence of insult concerns the 'justified indignation' as a ground for exemption from the threatened punishment: As per the new provisions, 'justified indignation' on behalf of the perpetrator can only be justified and lead to exemption from penalty regarding the basic offence of insult and not to its abovementioned aggravated forms.
b) Repeal of Art. 362 of the Penal Code on the offence of 'defamation' and the arising effects:
- As per Article 136 of L. 5090/2024, the criminal offence of 'defamation' (until recently provided for in Art. 362 of the Penal Code) is repealed.
- However, as already pointed out by scholars, the arising effect of the foregoing abolition is minor, since acts, which previously fell under the crime of 'defamation' -whether involving derogatory characterizations and judgements, or allegations of fact- will remain penalized under the offence of 'insult'.
c) Amendment of Art. 363 of the Penal Code on the offence of 'slanderous defamation'
- Under the new law, the offence of slanderous defamation is not established when the dissemination is made before public officials who become aware of the facts through their official duties in the course of a civil, criminal or administrative trial (e.g. judges, public prosecutors, clerks, investigating officers, bailiffs etc.).
- Contrary to what has been upheld recently by the Plenary Session of the Supreme Court, the new law seems to hold the position that such persons have predetermined professional roles when exercising their duty, do not express their personal opinions and are not entitled to disclose this information to third parties further contributing to the dissemination of the defamatory claim.
- Additionally, the aim of this amendment is to limit the 'criminalization' of civil cases by restricting the filing of defamation lawsuits based on the claims made by the respective parties during other associated litigation proceedings.
d) Repeal of Art. 367 of the Penal Code on the preservation of legitimate interest and the arising effects:
- According to Article 367 of the Penal Code, defamatory claims that are not proven to be true, but nevertheless contribute to the promotion of some legitimate interest, e.g., in the fields of art, science, information, and politics, did not constitute a criminal offence.
- However, as a result of the repeal of this provision by virtue of Article 136 (a) of L. 5090/2024, there is now a risk of expansion of the acts that are punishable either under Article 361 ('insult') or Article 363 ('slanderous defamation') of the Penal Code.
- Consequently, the solution to the problem of permissible insults to honor should be found either to the generally applicable grounds of justification of any criminal offence, e.g. exercise of a right, or by referring to supra-legislative provisions which protect the conflicting rights and interests (provisions of the ECHR and the International Covenant on Civil and Political Rights, which protect freedom of speech, freedom of the press, freedom of art and science, etc.), which were protected through the repealed provision of Art. 367 of the Penal Code.
- Lastly, under the previous regime, the offence of 'slanderous defamation' was punishable only when the allegation made was false. Therefore, if the allegation was true, there would be -in principle- no harm to honor. However, under the amendments brought by L. 5090/2024, the true or false nature of the allegation is irrelevant to the objective substance of the crime. The above is further reinforced by the repeal of par. 3 of Art. 366, that previously allowed punishment for insult to honor perpetrated with the use of true statements.
Final Remarks
The abovementioned amendments seem to have significantly changed the legislative framework on the crimes against honor. However, the real and practical implications of these changes will become evident in the forthcoming criminal and civil disputes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
