The ECHR found a violation of the requirements of Article 10 of the Convention.

Заголовок: The ECHR found a violation of the requirements of Article 10 of the Convention. Сведения: 2024-07-02 04:48:56

The ECHR ruling of June 22, 2021 in the case of "Ercisia Almandos v. Spain" (complaint No. 5869/17).

In 2017, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to Spain.

The case appeals against the applicant's prosecution for speaking at a ceremony in honor of a member of the terrorist organization ETA, in which there was no direct or indirect incitement to violence. The case involved a violation of the requirements of article 10 of the Convention.




The applicant, a former Basque separatist politician, was sentenced to one year in prison and seven years in prison for holding public office for a crime related to terrorism, as a result of his performance as the main speaker at an event held in honor of a former member of the terrorist organization ETA (ETA, Euskadi Ta Askatasuna (Basque) - separatist organization of the Basque people "Basque Country and Freedom").




Regarding compliance with article 10 of the Convention. The sentence was an interference with the applicant's right to freedom of expression, which pursued a legitimate aim in the form of protecting public order, preventing riots and crimes, and protecting the reputation or rights of others.

Although the applicant had some influence in politics due to his long political career in the Basque community several years before the events in question and his symbolic status in the Basque separatist movement, he was not a politician at the time of the events in question. Indeed, the applicant did not speak at the event as an elected representative of a parliamentary group or a member of a political party, as he had not had such a status for several years.

Nevertheless, the applicant's statements concerned an issue of public interest that was widely discussed in Spain, especially in the Basque community. The issue of Basque independence and the debate over whether or not armed action should have been used to achieve this independence has been a constant topic of discussion in Spanish society. In this regard, the issue of the territorial integrity of Spain has been a sensitive topic and the reason for the emergence of diverse, often convinced and fiercely debated opinions and points of view among the inhabitants of Spain. Thus, the subject of the complaint really concerned a dispute of genuine public interest.

The European Court had to determine whether the applicant's speech contained a justification for violence or whether it could be called "hate speech" or a defense or justification of terrorism. Consequently, the European Court had to decide whether the punishment applied to the applicant could be considered proportionate to the legitimate aim pursued, taking into account the various criteria characterizing hate speech and the fact of defending or justifying terrorism.

As for the first criterion, the applicant voiced his comments in tense political and social contexts. Indeed, the European Court has already considered complaints based on the threat of terrorism that Spain has been facing for many years, as well as the fact that the Basque country is considered a "politically unstable region."

With regard to the second criterion, the European Court had to verify whether the contested statements - properly interpreted and evaluated in both a special and broad sense - could be considered as a direct or indirect call to violence or justification of violence, hatred or intolerance. The applicant was the main speaker at an event dedicated to the memory and commemoration of a recognized member of the terrorist organization ETA. However, the applicant's statement as a whole did not contain, directly or indirectly, calls for the use of violence or armed resistance, even if some of the statements used by the applicant could be considered ambiguous. At the same time, the applicant explicitly argued that people should use the most appropriate ways to achieve democratic results.

There were some contradictions regarding the context of the event, as well as the reasons given by the applicant for his visit. Thus, although the applicant claimed that it was a family event, he also explained that his actions were political. The applicant further claimed that it was a private event, despite the fact that it was held in public and included a discussion of an issue of public interest. The applicant noted that 50 friends and family members were present at the event, although in reality 250 people were present. It was also necessary to take into account the fact that the authorities were not notified of the true nature of the event that was eventually held. However, the applicant was not the organizer of the event in question and was not responsible for displaying photographs of masked ETA members. The mere fact that the applicant took part in the event could not in itself be considered a call to violence or a manifestation of "hate speech".

As for the third criterion, the applicant's opinion was expressed verbally during an event attended by supporters of the Basque separatist movement. Thus, the way in which the applicant formulated his thoughts was not explicitly aimed at achieving negative consequences.

Taking into account all the criteria and taking into account the context of the case, the European Court could not agree with the assessment of the case by the Spanish courts, on the basis of which they found the applicant guilty. Indeed, the applicant's statements had nothing to do with "hate speech". Even though the applicant spoke at an event held to honor the memory of a member of the terrorist organization ETA, he did not try to justify any terrorist actions and did not justify terrorism in general. On the contrary, it followed from the applicant's words that he was in favour of public discussions aimed at creating a democratic path to the future. At the time under review, the terrorist activities of the ETA organization were still a harsh reality. However, this factor could not justify the conviction of the applicant, who was found responsible for all the actions carried out during the event.

In conclusion, the applicant's conviction could not be considered a proportionate measure.

In the light of the above, and especially the circumstances that no direct or indirect incitement to terrorism was established and that the applicant's speech was rather aimed at using democratic procedures to achieve the political goals of the left-wing nationalists (aberzale), the interference of the Spanish authorities in the applicant's right to freedom of expression could not be considered "necessary in a democratic society".




The case involved a violation of the requirements of article 10 of the Convention (adopted by four votes in favor, with three against).




In the application of article 41 of the Convention. The European Court awarded the applicant 6,000 euros in compensation for non-pecuniary damage.



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