Communicated on 12 November 2015

THIRD SECTION

Application no. 26922/14 Agustin TORANZO GOMEZ against Spain lodged on 26 March 2014

STATEMENT OF FACTS

The applicant, Mr Agustin Toranzo Gomez, is a Spanish national, who was born in 1970 and lives in Sevilla . He is represented before the Court by Mr L.M. de Los Santos Castillo, a lawyer practising in Sevilla .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was member of an activist group which administrated an occupied building, the self-administrated Social Centre “Casas Viejas”, in Sevilla . On 30 November 2007, the applicant participated in a protest against the eviction of the building. As part of the protest, he and another person tied themselves to some tubes in a self-made tunnel construction under the building. In order to remove the applicant, the police officers resorted to the use of force. On 1 December 2007, the applicant participated in a press conference during which he commented on the eviction and the techniques that the police had used to take him out of the tunnel. He referred to the events in the following terms:

“... the bad psychological and physical treatment could not be paid for”; “I will talk about the torture which they did to us so that we left the tubes... the physical torture has been undertaken only by national police, and has been very subtle so that they caused pain but did not leave marks ”; “... they fixed a rope at me, and three at the time pulled me ...”; “When they are torturing you, you think of everything, it was dangerous ...”

He said that he was also fixed with his free hand to his ankle, which caused intense pain. He indicated that torture was administered by the two police officers who appeared in the press photographs.

As a result of the aforementioned statements, on 21 December 2007 the Delegation of the Government in Andalusia filed a complaint before the public prosecutor, who requested the initiation of a criminal investigation before the Sevilla examining judge no. 17. This judge ordered the opening of an investigation, as a result of which, the applicant was charged with slander and defamation. On 6 July 2011 the Seville criminal judge no. 13 convicted the applicant for slander to a twenty-month fine with a daily amount of 10 euros (EUR). In addition, he was ordered to pay compensation to two police officers for damages in a total amount of EUR 1,200. Furthermore, the applicant was ordered to publish the judgment in the media entities which had participated in the press conference. The judgment was based on the conclusion that in the applicant ’ s case the behaviour by the police officers did not disclose all the elements under the legal classification of torture according to article 174 of the Spanish Criminal Code. The Sevilla criminal judge considered that the applicant ’ s declaration included a specific accusation of torture, and analysed in detail the given situation and the acts conducted by the police officers. The judge also found that, due to the descriptions, in combination with photographs in the press, the police officers in question could be identified by friends and family, and would be put in connection with torture, which resulted in them feeling offended.

On 28 June 2013, the Sevilla Audiencia Provincial ordered the fine to be reduced to 12 monthly installments with a daily amount of EUR 10 and it upheld the remaining elements of the first-instance judgment. The Sevilla Audiencia Provincial indicated that the remarks made by the applicant constituted a direct accusation of the crime of torture. Likewise, the Audiencia Provincial found that the facts as stated by the applicant led to the conclusion that a proportionate action by the police had taken place so qualifying the action as torture would be incorrect and therefore slander.

On 29 July 2013 an amparo appeal was lodged by the applicant. On 21 October 2013 the Constitutional Court declared it inadmissible on the grounds that the applicant had not complied with the obligation to prove that his appeal was one of “special constitutional importance”.

B. Relevant domestic law

The relevant provisions of the Spanish Constitution read as follows:

Article 18

“1. The right to honour, to personal and family privacy and to the own image is guaranteed.

(...)”

Article 20

“1. The following rights shall be recognised and protected:

(a) The right to freely express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction;

(...)

2. The exercise of these rights may not be restricted by any form of prior censorship.

(...)

4. These freedoms shall be limited by respect for the rights recognised in this Part, by the legal provisions implementing it, and in particular by the right to honour, to privacy, to the own image and the protection of youth and children.

(...)”

The relevant provisions of the Spanish Criminal Code read as follows:

Article 174

“1. Torture is committed by a public authority or officer who, abusing his office, and in order to obtain a confession or information from any person, or to punish him for any act he may have committed, or is suspected to have committed, or for any reason based on any kind of discrimination, subjects that person to conditions or procedures that, due to their nature, duration or other circumstances, cause him physical or mental suffering, suppression or decrease in his powers of cognizance, discernment or decision, or that in any other way attack his moral integrity. Those found guilty of torture shall be punished with a sentence of imprisonment from two to six years if the offence is serious, and of imprisonment from one to three years if it is not. In addition to the penalties stated, in all cases, the punishment of absolute disqualification from office shall be imposed, from eight to twelve years.

2. The same penalties shall be incurred, respectively, by the authority or officer of penitentiary institutions or correctional or protection centres for minors who may commit the acts referred to in the preceding section in relation to the detainees, interns or prisoners . ”

Article 205

“Slander involves accusing another person of a felony while knowing it is false or recklessly disregarding the truth . ”

Article 206

“Slander shall be punished with imprisonment of six months to two years or a fine of twelve to twenty-four months, if propagated with publicity and, in other cases, by a fine from six to twelve months . ”

COMPLAINT

The applicant complains under Article 10 of the Convention that the domestic courts ’ decision finding him guilty of defamation amounted to undue interference with his right to freedom of expression. The applicant claims that his conviction was neither proportionate nor necessary in a democratic society. He referred to the particular circumstances of the case, namely the reality of the facts occurred, the intention of the remarks made and the context in which they took place.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, in particular his right to impart information and ideas, contrary to Article 10 of the Convention?