ECHR ruling of March 13, 2018 in the case of Stern Taulats and Roura Capellera (Stern Taulats and Roura Capellera) v. Spain (applications N 51168/15 and 51186/15).
In 2015, complainants were assisted in preparing applications. Subsequently, the application were merged and communicated to Spain.
The case was successfully considered by the applicants for their conviction for a public arson of a large-format photo of the royal couple, turned upside down, during a rally against the monarchy and for independence. The case has violated the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In September 2007, on the occasion of the institutional visit of the King of Spain to the city of Girona (Spain), followed by a demonstration against the monarchy and for independence, a rally was held in the town square, where the applicants set fire to a large-format photograph of the royal couple, turning it upside down.
In July 2008, the central criminal investigator of the National Court of Justice of Spain (Audiencia Nacional) sentenced the complainants for insulting the Crown to 15 months ’imprisonment, replaced by a fine of € 2,700 from each of the complainants. In the event of full or partial failure to pay the fine, the applicants should have served their sentence of imprisonment.
One of the highest judicial bodies in Spain, consisting of three chambers: for the consideration of criminal cases, for the consideration of complaints against actions and decisions of administrative bodies and for the consideration of disputes in social spheres. This body is best known as a criminal justice body that deals with the most important criminal cases and therefore is considered the country's highest court in criminal matters. Appeals against decisions of the National Judicial Presence are allowed to the Spanish Supreme Court (editor's note).
The Criminal Investigation Chamber of Spain’s National Court of Justice left this sentence unchanged.
After the judgment entered into force, the applicants paid a fine imposed on them. They then filed an amparo petition with the Constitutional Court, which, in its ruling in July 2015, concluded that the act imputed to the applicants could not be covered by the exercise of the rights to freedom of expression and freedom to hold opinions, as the applicants urged hatred and violence against the king and the monarchy.
There is a special amparo procedure in the Spanish legal system that allows individuals or prosecutors or a public defender (ombudsman) to appeal to the Constitutional Court on behalf of individuals for the protection of constitutional rights and legally protected interests (recurso de amparo).
QUESTIONS OF RIGHT
The controversial conviction was an interference with the applicants' exercise of the right to freedom of expression, provided for by law and pursued a legitimate aim: to protect the reputation or the rights of others.
The decision of the Constitutional Court questioned the way in which the applicants expressed political criticism, namely that the applicants used fire, used a large photograph and turned it over. In the opinion of the Constitutional Court, this form of expression has gone beyond the limits of freedom of expression and has come closer to the sphere of utterances leading to incitement of hatred, or utterances calling for the use of violence.
The three aspects mentioned by the Constitutional Court are symbolic and have a clear and obvious connection with the specific political criticism expressed by the applicants to the Spanish state and its monarchical form: the image of the king of Spain is the symbol of the king as head of the state apparatus, the use of fire and the placement of a photo in an inverted form of rejection or radical refusal, and these two tools are used as a manifestation of criticism of political or other order of size, photos, seemingly Momo, was designed to provide to draw attention to the relevant activities that took place in the town square. The act imputed to the applicants corresponded to one of these provocative productions, which are increasingly used to attract the attention of the media and do not go beyond the use of a certain degree of provocation permissible to convey a critical message in terms of freedom of expression.
The intention of the applicants was not to incite to commit acts of violence against the king personally, despite the fact that the production led to the burning of his photo. Such an action should be interpreted as a symbolic expression of dissatisfaction and protest. The statement, organized by the applicants, is a form of expression in a discussion on a matter of public interest, namely, the institution of a monarchy.
Incitement to violence cannot be inferred from the simultaneous consideration of the elements used for the statement and the context in which the event took place. Incitement to violence also cannot be established on the basis of the consequences of an act that was not accompanied by any violent actions or disturbances of public order.
Referring to a statement leading to incitement of hatred, an act that, like the act imputed to the applicants in the present case, is a symbolic expression of rejection and political criticism of the institution, and the resulting exemption from the sphere of protection guaranteed by freedom of expression would be too a broad interpretation of the exception recognized by the case-law of the European Court of Justice, which could cause damage to pluralism, tolerance and the spirit of openness, without which there can be no "democratic society" . Consequently, the preliminary objection of the Spanish authorities, based on Article 17 of the Convention, must be rejected.
As for the criminal punishment imposed on the applicants, it is in the form of deprivation of liberty for committing an offense in the framework of a political discussion, representing the most serious legal disapproval of any behavior, interfering with the exercise of freedom of expression, which was not proportionate to the legitimate aim pursued, or necessary in a democratic society.
In the case of violation of the requirements of Article 10 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The European Court ruled that the fact of establishing a violation of the Convention is in itself sufficient fair compensation for the moral damage caused to the applicants. Furthermore, the Court awards to each of the applicants EUR 2,700 in compensation for pecuniary damage.