Information Note on the Court’s case-law

November 2022

Mas Gavarró v. Spain (dec.) - 26111/15

Decision 18.10.2022 [Section III]

Article 8

Positive obligations

Article 8-1

Respect for private life

Choice of criminal-law avenue entailing discontinuance of case for lack of gravity, whilst effective civil procedures were available for damage to reputation: inadmissible

Facts – In the middle of his campaign for re-election to the presidency of the government of the autonomous community of Catalonia, an article published in the daily newspaper El Mundo claimed that the applicant held foreign bank accounts containing sums that he had received from bribes.

He lodged a criminal complaint for insults and misrepresentation against the journalists and, in the alternative, the newspaper’s publisher, but the criminal proceedings were discontinued on the grounds that no criminal offence was made out.

The applicant complained that the Spanish authorities had not fulfilled their positive obligations to protect his personal reputation.

Law – Article 8: The publication of the press article had been capable of causing damage to the applicant’s reputation and honour. It had contained factual allegations of corruption, misfeasance in public office and procurement fraud. These allegations were serious enough for his personal integrity to be impugned. Article 8 was therefore applicable.

As regards the remedies used by the applicant, the main purpose of the criminal proceedings had been to determine whether the journalists’ conduct was of such gravity as to constitute a criminal offence of insults or misrepresentation. The domestic courts had thus focused, as provided for by law, on whether those offences had been made out and, if so, on determining the relevant criminal sanction. As the proceedings had been discontinued, the criminal court had not had jurisdiction, under the law, to rule on whether the offence entailed any civil liability. The same was true of the decision of the Audiencia Provincial , which had confirmed the journalists’ lack of negligence on the basis of the information available to them when writing their article.

In the case of less serious interpersonal acts capable of affecting moral integrity, the State’s obligation under Article 8 to put in place and apply in practice an adequate legal framework affording protection did not always require the adoption of effective criminal-law provisions covering the various acts at issue. The legal framework could also consist of civil remedies providing sufficient protection. A prison sentence imposed in the context of a political debate or a debate of public interest would only be compatible with freedom of expression as guaranteed by Article 10 of the Convention in exceptional circumstances, particularly where other fundamental rights had been seriously infringed, such as in the event of hate speech or incitement to violence. In the Spanish system, the offences of insults and misrepresentation were subject to a special mental element with a certain threshold, namely they had to involve a purely malicious lie or flagrant contempt for the truth. The legislature had thus chosen to criminalise only certain serious forms of insults and misrepresentation, and not all forms of defamation or damage to a person’s reputation.

There was no indication that the applicant had brought a civil action or had argued, in such proceedings, that the publications had infringed his right to the protection of his personal reputation. Civil actions could potentially have resulted in measures being taken to restore his reputation.

He could in fact have sought the publication of a correction, rectifying the impugned information, in the newspaper concerned within three days, or have used the special procedure for the protection of the right to one’s honour in order to obtain redress, through compensation, for any infringement of his right to the protection of his personal reputation.

By choosing to use only the criminal-law avenue, the applicant had deprived himself of any redress for the infringement of his rights in the context of the civil procedures which had been available to him – remedies which could not be considered ineffective. He had thus limited the scope of the examination carried out by the domestic courts, which were able to rule only on the lack of gravity of the alleged infringement under the criminal law, and he had not demonstrated that the State had provided him with insufficient protection or that his right to respect for his reputation had actually been infringed.

Conclusion : inadmissible (manifestly ill-founded).

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

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