ECHR judgment of November 20, 2018 in the case of Toranzo Gomez (Spain) (application N 26922/14).
In 2014, the complainant was assisted in preparing an application. Subsequently, the application was communicated to Spain.
The case was successfully considered an application against the applicant for defamation due to the fact that the applicant called the methods used by the police and firefighters when they were evicted from the house, “torture”, contrary to their legislative definition. The case was a violation of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
Protesting against eviction from the house, the complainant tied himself to the floor of an underground tunnel, which he dug along with other protesters. To get him out of there, the police tied him with a rope around his waist, trying to pull him out, and tied his hand to his ankle in such a way that it hurt the applicant for a long time. The police also threatened the applicant with gas and the inevitable collapse of the entire underground structure. As a result, the applicant voluntarily surrendered to the authorities and was detained.
During the press conference, the complainant alleged that torture had been used against him by the police and firefighters during the eviction. He was convicted of defamation for this statement and sentenced to a monthly payment of a fine of 10 euros for 12 months, with one day of imprisonment being imposed every two days overdue. The court also ordered the applicant to pay a compensation of 1,200 euros to the police officers and to publish the court’s decision in the media at his own expense.
QUESTIONS OF RIGHT
Regarding compliance with Article 10 of the Convention. Interference with the applicant’s freedom of expression was provided for by the Spanish Penal Code and pursued the legitimate aim of protecting the “rights and reputations of others”.
(i) The nature of the statements of the applicant. Although the applicant used expressions that could suggest a certain degree of exaggeration, he complained about his treatment by the authorities during the restriction of his freedom, which, despite the fact that the applicant was in this situation as a result of his own actions, should have caused him feelings of stress, fear, and physical and moral suffering.
(ii) The context of the interference and the method used by the Spanish courts to justify the applicant’s conviction. The applicant described in detail the methods used by the police and firefighters. His description corresponded to the facts that were proved in the Spanish courts in the framework of the criminal proceedings. In addition, after the complainant’s reports, the public had no doubts about what actually happened, and there was no evidence in the case file that the complainant did not act in good faith making such allegations and did not pursue the legitimate goal of discussing issues of public interest. . Thus, the only reason for disagreement was the assessment of controversial facts. The expression “torture” used by the applicant should be interpreted as a value judgment, the reliability of which could not be proved. The applicant used the word "torture" in a colloquial sense in order to condemn the methods of the police and those methods that he considered excessive and disproportionate use of force by police officers, as well as cruel treatment by police and firefighters, the victim of which has become.
(iii) The extent to which individual police and firefighters were affected. Spain’s courts did not address the question of whether the complainant’s controversial statements promoted violence or whether other means of responding to these allegations were available before resorting to criminal proceedings. Indeed, neither in the decisions of the Spanish courts, nor in the observations of the authorities of the respondent state in the case did it mention whether the applicant’s allegations had any negative consequences for the police officers. In contrast to the case of Kumpane and Masere v. Romania (see the judgment of the Grand Chamber of the European Court of Justice in the case Kumpen and Masere v Romania (Cumpănă and Mazăre v. Romania) of December 17, 2004, complaint No. 33348/96) , the Spanish courts did not agree with the truthfulness of the applicant's allegations, but with the legal qualifications of the methods used by the police.
(iv) The severity of the intervention. The punishment imposed on the applicant could have a “deterrent effect” for the applicant to exercise his right to freedom of expression, as it could deprive him of his intention to criticize officials (see, mutatis mutandis, the European Court of Justice in the Levandowska-Maliec v. Poland case (Lewandowska -Malec v. Poland) of February 18, 2012, complaint No. 39660/07, § 70).
(v) Determine the comparative meaning of the applicant's right to freedom of expression and the right of police officers to respect their privacy. Restricting the complainant’s right to criticize the authorities by imposing on him the duty of strictly adhering to the definition of torture enshrined in the Spanish Penal Code presented an excessive burden for the complainant (as well as for any ordinary citizen).
In general, the punishment imposed on the applicant was not properly substantiated, and the standards applied by the Spanish courts did not ensure a fair balance between the respective rights and interests. Thus, the interference complained of by the applicant was not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.
The case was a violation of Article 10 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 4,000 in respect of non-pecuniary damage and EUR 1,200 in respect of pecuniary damage.