Information Note on the Court’s case-law 252

June 2021

Erkizia Almandoz v. Spain - 5869/17

Judgment 22.6.2021 [Section III]

Article 10

Article 10-1

Freedom of expression

Speech given at a ceremony paying tribute to a member of the ETA terrorist organisation which did not directly or indirectly incite to terrorist violence: violation

Facts – The applicant, a former Basque separatist politician, was sentenced to one year’s imprisonment and seven years’ ineligibility for the offence of condoning terrorism, on account of his participation as the main speaker at an event organised to pay tribute to a former member of the ETA terrorist organisation.

Law – Article 10: The conviction in question amounted to an interference with the applicant’s right to freedom of expression that had pursued the legitimate aims of public safety, the prevention of disorder and crime and the protection of the reputation or rights of others.

Although the applicant was a person of some importance in the political sphere, on account of his long political career in the Basque Country a few years previously and his symbolic status in the Basque separatist movement, at the material time he had not been acting in his capacity as a politician. Indeed, the applicant had not spoken as an elected representative of a parliamentary group or a political party because he had not held any such status for a number of years.

Nevertheless, the applicant’s statements had concerned a public-interest subject much discussed in Spanish society, particularly in the Basque Country. The issue of Basque independence and the debate on whether or not armed violence had any role to play in achieving that independence had long been recurrent themes in Spanish society. To that extent the question of the territorial integrity of Spain was a sensitive topic which elicited different, often strong and passionate, viewpoints and opinions within Spanish society. That being the case, the subject did concern a genuine public-interest debate.

However, the Court had to determine whether the applicant’s speech had advocated the use of violence or if it could be considered as “hate speech” or as a defence or justification of terrorism. The Court was accordingly required to decide whether the penalty imposed on the applicant could be deemed proportionate to the legitimate aim sought to be achieved, having regard to the various criteria characterising hate speech and the fact of defending or condoning terrorism.

As regards the first of those criteria, the applicant had made his comments in a tense political and social context. Indeed, the Court had already dealt with cases arising from the terrorist threat which Spain had been facing for many years, as well as from the fact that the Basque Country was considered as a “politically sensitive region”.

In connection with the second criterion, the Court had to ascertain whether the impugned statements, as properly interpreted and appraised in both their specific and broader contexts, could be regarded as a direct or indirect call to violence or as advocating violence, hatred or intolerance. The applicant had been the main speaker at an event aimed at paying tribute to and eulogising a recognised member of the ETA terrorist organisation. However, the speech as a whole had recommended the use of neither violence nor armed resistance, directly or indirectly, even if some of the expressions used by the applicant could have been considered ambiguous. Indeed, he had explicitly stated that the people should take the most appropriate road towards a democratic outcome.

There were several ambiguities in the context of the event and the reasons given by the applicant for attending it. Indeed, even though the latter alleged that it had been a family affair, he also explained that it had been a political act. The applicant further submitted that it had been a private event, despite the fact that it had taken place in public and had involved discussion of a question of public interest. He further pointed out that the attendees had been fifty friends and family members, although in fact 250 persons had ultimately been present. Regard should also be had to the fact that the authorities had not been informed of the actual nature of the event which had finally taken place. On the other hand, the applicant had neither organised the event nor been responsible for projecting the photographs of masked ETA members. The mere fact that the applicant had taken part in that event could not in itself be considered as a call for the use of violence or as a manifestation of hate speech.

As regards the third criterion, the applicant’s statements had been delivered orally in the framework of an event attended by supporters of the Basque separatist movement. Thus, the manner in which the applicant had formulated his words had not been obviously aimed at producing negative consequences.

Having regard to all the criteria regarding the context of the case, the Court was unable to follow the domestic court’s assessment that had led it to convict the applicant. Indeed, the applicant’s speech had had nothing to do with “hate speech”. Even though the applicant had spoken in the framework of a tribute to a member of the ETA terrorist organisation, he had not tried to justify any terrorist acts or to condone terrorism in general. Quite the contrary: it transpired from the applicant’s words that he had been advocating public reflection geared to creating a new democratic way forward. At the material time the terrorist violence perpetrated by the ETA had still been a harsh reality. Nevertheless, that factor could not justify convicting the applicant, who had been held responsible for all the acts conducted during the tribute ceremony.

Finally, the applicant’s conviction could not be considered as a proportionate measure.

In the light of the foregoing considerations, particularly the fact that no direct or indirect incitement to terrorist violence had been established and that the applicant’s speech had rather advocated continuing along a democratic road towards the political objectives of the abertzale left, the interference by the public authorities with the applicant’s right to freedom of expression could not be deemed to have been “necessary in a democratic society”.

Conclusion : violation (four votes to three).

Article 41: EUR 6,000 in respect of non-pecuniary damage.

(See also Perinçek v. Switzerland [GC], 27510/08, 15 October 2015, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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