Information Note on the Court’s case-law 15

February 2000

Fuentes Bobo v. Spain - 39293/98

Judgment 29.2.2000 [Section IV]

Article 10

Article 10-1

Freedom of expression

Dismissal of television presenter following criticism of management: violation

(Extract from press release)

Facts : The applicant, Bernardo Fuentes Bobo, a Spanish national, was born in 1940 and lives in Madrid (Spain). At the material time, he h ad been employed by the Spanish State television company (TVE) since 1971 as a producer. At the end of 1992 the programme he presented was dropped and no replacement post was offered to him, although he was required to complete his daily working hours.

Fol lowing a demonstration by the staff in October 1993 about the way TVE was managed, the applicant and a colleague co-authored an article in the newspaper Diario 16 criticising certain of the management’s actions. At the beginning of November 1993 the applic ant received a letter informing him where he should report for work until such time as he was offered a post. However, he was not given an office. An exchange of correspondence and a document circulated by the applicant among other members of staff resulte d in disciplinary proceedings that ended in January 1994 with the applicant being suspended without pay, first for 16 days and later for 60 days. Identical penalties were imposed on one L.C.M. The applicant lodged an appeal with the Madrid Labour Court (no . 10); that appeal was dismissed, whereas Madrid Labour Court (no. 34) set aside the penalty imposed on L.C.M. The applicant then appealed to the Madrid High Court ( Tribunal Superior de Justicia) , which overturned the lower court’s judgment and set aside t he disciplinary penalty stating that it was necessary to do so to avoid inconsistent court decisions and because no penalty had been imposed on the 276 colleagues who had shown support for L.C.M.’s and the applicant’s article. In the meantime, the applican t had commented on the penalties and TVE’s actions in two radio programmes during which he made remarks about TVE’s managers that were considered offensive. Those remarks led to fresh disciplinary proceedings being taken which ended with the applicant’s di smissal on 15 April 1994.

Following an appeal by the applicant, the Madrid Labour Court (no. 4) ruled that there had been a procedural defect and that the dismissal was unlawful. However that decision was overturned by the Madrid High Court, which held tha t the dismissal was lawful under the rules governing the employees’ status. The Supreme Court declared inadmissible an appeal on points of law that had been lodged with a view to harmonising the case-law. In a decision of 25 November 1997 the Constitutiona l Court, which was the final appellate court, dismissed an amparo appeal by the applicant on the ground that there had been no violation of his right to freedom of expression.

The applicant complained that his dismissal infringed his right to freedom of ex pression as guaranteed under Article 10 of the European Convention on Human Rights; he relied, too, on Article 14 of the Convention alleging that he had been a victim of discrimination.

Law : Article 10 of the Convention - The Government had submitted that there had been no interference by the State in the applicant’s freedom of expression and that the State could not be held responsible for the applicant’ dismissal, as TVE was a private-law undertaking. The Court pointed out, however, that Article 10 also applied when the relations between employer and employee were governed by private law and, moreover, the State had a positive obligation in certain cases to protect the right to freedom of expression. Furthermore, the Co urt considered that even though the interference concerned had been “prescribed by law” and pursued a legitimate aim, namely the “protection of the reputation or rights of others”, it did not on the facts of the case before it and in view of the severity o f the penalty imposed on the applicant, meet a “pressing social need”. It noted that the statements in issue had been made in the context of a labour dispute and that the failings of the public entity denounced by the applicant were of a general nature. Th e Court added that the “offensive” remarks attributed to the applicant, which – as the Constitutional Court had said – appeared to have been provoked, had first been used by radio-show hosts in exchanges that had been both lively and spontaneous. In additi on, it noted that there was nothing in the case file to suggest that TVE or the supposed targets of the remarks had taken any legal action against the applicant. The Court concluded that notwithstanding the national authorities’ margin of appreciation, the relation between the penalty and the legitimate aim pursued was not reasonably proportionate. A majority of the Court therefore held that there had been a violation of Article 10 of the Convention.

Conclusion : violation (5 votes to 2).

Article 14 of the Convention - In the light of its finding under Article 10 of the Convention the Court decided, unanimously, that it was unnecessary to examine the issue under Article 14 of the Convention.

Article 41 of the Convention - The applicant soug ht an amount of ESP 279,519,584 as compensation for his pecuniary and non-pecuniary damage. Having regard to the precariousness of the applicant’s position at TVE (even before the disciplinary proceedings had begun), the fact that the applicant had not sho wn that he had used reasonable endeavours to find work and the fact that, in view of the applicant’s celebrity it was difficult to dissociate the pecuniary damage from the non-pecuniary damage, the Court decided to award him an overall amount of ESP 1,000, 000 plus ESP 750,000 for costs and expenses less FRF 6,600 that he had already received in legal aid before the Court.

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

Click here for the Case-Law Information Notes