JOINT DISSENTING OPINION OF JUDGES ELÓSEGUI AND SERGHIDES

1. As paragraph 1 of the judgment indicates, this case concerns the alleged violation of the applicants’ right to freedom of expression because of their criminal conviction for the publication of an open letter in a local newspaper, complaining of the conduct of a judge in proceedings affecting them although they were not parties to those proceedings.

We are writing a dissenting opinion in this case because we cannot agree with the majority of our colleagues either as to their reasoning or as to their conclusion. As we will explain in the following paragraphs the outcome of this case should have been that there had been no violation of Article 10 of the Convention and that the domestic courts had conducted a proper balancing exercise between the rights in conflict, prioritising the right to honour or the right not be defamed of the person (judge) who was criticised by the two applicants.

2. To arrive at this conclusion it is necessary to expand on the context of the judicial dispute. The case is concerned only with the criminal proceedings brought against the applicants. However, the open letter by the applicants criticised the judge who had taken a decision in the administrative proceedings, and the criminal courts found that their allegations had lacked sufficient factual basis (see also, especially, the Spanish Constitutional Court judgment). That is why we should know what exactly the first-instance administrative court decided with respect to the allegations that were made against the judge in the open letter (and in particular the assessment of the two expert reports). Hence, the administrative proceedings provide the context for the criminal proceedings (see extracts from the administrative court judgment [2] ). In the latter judgment t he question under debate was a technical question, of the kind which must be resolved using objective criteria, based on professional standards. This has nothing to do with the discussion of subjective ideas or opinions. According to the third argument of that judgment, whether or not the project should be subjected to the environmental impact assessment procedure is debated in this process, as the activity in question is included in Annex II to Law 7/2006 of 22 June 2006 on environmental protection in Aragon, according to the opinion of the municipal council, or is subject to the environmental approval procedure, according to the opinion of the appellant. Depending on that, two different procedures apply.

3. As regards the social context, Aguilar del Alfambra is a small town in Teruel, a province of the Autonomous Region of Aragon. The town has 64 inhabitants. Teruel has problems owing to its lack of industry, and as a consequence people are abandoning the province and going to the neighbouring provinces (and especially to Castellon, Valencia and Saragossa). One of its small industries is clay mining for the manufacture of ceramic tiles. There are several mines in the aforementioned provinces, because they have good clay. In 2004 the company WBB presented a small project to operate open-pit mines in four small towns. In Aguilar de Alfambra the project included the creation of eight new jobs. It passed all the requirements of the experts from the Energy Department of the Government of Aragon (the official document is a resolution of 8 June 2011, published in the Aragon Official Gazette). The project was opened up for members of the public to lodge objections and was published in the town halls.

4. According to the information provided by the applicants, they never lodged any such objections to the project. The association Plataforma Aguilar Natural was set up on 19 April 2008 with the aim of opposing the project (its current website can be found via Google). It has a very small membership of around 100. The association subsequently carried out environmental activities to showcase the landscape and natural heritage of Alfambra, organising excursions for schools and other events. Today it has 122 members (from Teruel, Valencia, Madrid and Catalonia). The applicants themselves have a degree in history. They do not live in the town because they work in other provinces.

5. The project to create the open mine was assessed by different experts from the Government of Aragon and an expert nominated ex officio by the administrative judge, among others. An assessment was also conducted by the technicians of the Aguilar del Alfambra municipal council. This assessment was positive and supported the initiative, finding that it was not a source of pollution. It was known to all parties that the original report had been written by the technicians of the municipal council and by a company normally hired by the council, at the latter’s request. Later on, the association Plataforma Aguilar Natural was created and started a campaign against the project. As a consequence, the mayor of the town decided to request another report from an external firm of architects based in Madrid, headed by the architect I.Z., the father of one of the applicants. The Aguilar del Alfambra municipal council, which had initially been in favour, later altered its position as a result of the platform’s campaign.

6. In the present case, the entire letter comments on the judgment and the public hearing at which it was delivered. However, not all the facts described by the applicants are reflected in the administrative judgment, and at times they contradict the judgment. We will take them one by one and then comment on them.

(a) “The judgment shows that you were not interested whatsoever in the technical matters at issue”. The judgment details the steps taken by the judge to deal with the technical questions, including gathering the testimony of several engineers and technicians as experts or witnesses.

(b) “You concluded, for no proper reason, that the expert responsible for assessing the project was independent and impartial, by ignoring his technical and methodological deficiencies”. The judgment explains how Mr M.A.’s name was chosen from a list of five mining engineers submitted by the Official Association of Mining Engineers. He was appointed in the presence of the parties, with no objections being raised.

(c) “You did not consider whether there could be something dubious in the expertise of somebody who had not set foot in Aguilar and had only used materials and documentation provided by [WBB ‑ SIBELCO]”. The judgment also describes how the judge pondered which of the conflicting expert reports she should accept. Mr I.Z., the person whose report was rejected, was eventually heard, although as a witness instead of as an expert.

(d) “You approve the report of a building engineer whose [professional] background is unknown”. The author of the report was a mining engineer whose name was submitted by the Official Association of Mining Engineers.

(e) “Furthermore, you discredit the report [of Mr I.Z.] owing to [his] family ties to ... a spokesperson for this platform. It is unacceptable that you hide the fact that the constitution of this platform and the election of its heads took place a long time after the drafting of the report”. The official publication of the platform (issue no. 0, spring 2009) alluded to its constitution “in March of last year”. The report by Mr I.Z. is dated 31 March 2008.

(f) “You are unaware of the relevant case-law, and what is worse, you outrageously washed your hands of the affair, even though you had documentary evidence challenging an expert opinion, but you did nothing”. As stated above, in her judgment Ms. M.M. describes precisely how she evaluated each piece of evidence and accepted or rejected the facts as presented by the experts and witnesses.

(g) “... under the formal guise of a shaky expert opinion”. As stated above, the election of the expert and his qualifications are reflected in the judgment. He was appointed according to the legal procedures, without interference by the judge, and the parties raised no objections. The letter insists that it reflects the facts as they can be inferred from the judgment (“the judgement shows”, “you have documentary evidence of this”).

7. It thus remains to be examined whether the “factual basis” for those value judgments was sufficient. We cannot subscribe to the majority’s view that the expressions used by the applicants had a sufficiently close connection with the facts of the case. We disagree in addition with their interpretation that the applicants’ remarks could not be regarded as misleading or as a gratuitous attack and can be inferred from the judgment. The expert report produced by the judicial expert in these administrative proceedings was subjected, at the request of the two plaintiffs, to an investigation by the Teruel provincial prosecutor’s office, which obtained from the Attorney General a report on the said expert and his specific performance. The prosecutor’s investigation was discontinued [3] .

8. Hence, the applicants’ criticisms were not expressed at the hearings or in the course of the judicial proceedings. They could have raised legal objections to the administrative process, like any citizen (as this was a public-information process open to everyone) but did not do so [4] . The applicants created the platform at the very time of the granting of the licence and with the aim of opposing it. Although they are not legal professionals, they have university degrees as historians (one is a public servant in the library of a public university) and they have an adequate knowledge of the law. The distribution of the letter within the small community in the area where the local court was located was bound to harm the reputation and professional image of the judge concerned.

9. In sum, the letter written by the applicants in the present case was a value judgment totally devoid of factual basis. We disagree with the majority, because the letter cannot be regarded as a critique related to the judicial proceedings. The applicants’ action was based on their emotional and personal involvement linked to the fact that the father of one of them was rejected as an expert. Not one line of the letter actually relates to environmental questions or technical matters. The phrase “you have demonstrated your partiality and lack of competence” was a mere personal attack without any support in concrete facts. In our view, Article 10 does not protect slander or defamation, still less any expression that constitutes a serious gratuitous attack. The requirement for critical assertions to have some factual basis, especially when we are dealing with scientific questions, does not run counter to freedom of expression; on the contrary, it promotes a marketplace of ideas based on data and serves to counter mere fake news. Moreover, as Judge Wojtyczek suggested in a concurring opinion, “the traditional dichotomy of statements of fact and value judgments should be revised” (see the concurring opinion of Judge Wojtyczek in Makraduli v. the former Yugoslav Republic of Macedonia , nos. 64659/11 and 24133/13, 19 July 2018, and his concurring opinion in the case of Monica Marcovei v. Romania , no. 53028/14, 28 July 2020).

10. For these reasons the Court should have recognised that the message conveyed by the applicants did not meet the requirements of veracity of the information, as the domestic courts acknowledged. On the basis of all the facts and domestic judgments in the case file, we strongly disagree with the majority when they affirm that the criticism voiced by the applicants amounted to a value judgment with a factual basis. As the Government pointed out, the applicants were not parties to the administrative proceedings, and many of the assertions treated as fact in their open letter were false. Moreover, mentioning the judge’s name in the letter was patently offensive, and the publication of the letter in the Diario de Teruel meant that it was disseminated widely and affected the personal and family life of the judge to the greatest possible extent.

11. Moreover, this case bears no relation to the case of Morice v. France ([GC], no. 29369/10, ECHR 2015). In that case, the lawyer had criticised the judges in a very serious case relating to the murder of another judge. In fact, it was shown that the French judges had been involved in corruption and in trying to conceal evidence relevant to the murder investigation. The applicant’s opinions were based on real and established facts (see Morice, cited above, § 158). Moreover, in Morice the Court stated, in relation to value judgments and facts, that it had to take into account whether there existed a sufficient “factual basis” for the impugned statement, as well as the circumstances of the case and the general tone of the remarks (ibid., § 126), and the need to maintain the authority of the judiciary (ibid., § 128). As regards lawyers who criticise judges, there are certain rules which contribute to the protection of the judiciary from gratuitous and unfounded attacks (ibid., § 134). Lawyers cannot, moreover, “make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis ... nor can they proffer insults” (ibid., § 139). Furthermore, “[t]he Court assesses remarks ... [in order] to ensure that the expressions used have a sufficiently close connection with the facts of the case ...” (loc. cit.).

12. By contrast, the applicants in the present case cast doubt on the professional capacities of the administrative judge, accusing her of ignorance and of deliberately intervening to favour the other party in the case by ignoring relevant witnesses and evidence. The applicants’ conduct went beyond the limits of criticising a judgment and turned into personal denigration of the judge. Comparing the facts as set out in the letter drafted by the applicants with the facts as established by the administrative judge whom they had criticised, the criminal courts concluded that there was no evidence of the facts described by the applicants in their letter, and that those alleged facts contradicted the established facts. Given the circumstances of the case, it was necessary for the domestic courts to ensure that the judge’s right to privacy prevailed over the applicants’ right to freedom of expression.

13. We cannot see that the letter criticising the judge affected only her professional life. To describe someone as being partial, among other failings, also affects his or her integrity as a person. In the concrete situation of this case, our judgment should have respected the conclusion of the domestic courts that the judge’s right to privacy (encompassing her professionalism) should prevail over the applicants’ right to freedom of expression in this particular case. In accordance with the principle of the margin of appreciation, our Court should have respected the balancing exercise performed by the national courts. If we look at the criteria applied by the Court in balancing free speech criticising judges or the judiciary against competing rights, we see that the Court usually refers to the following criteria: the subject matter (public interest), the manner of expression, the motive, the context of the speech, the fact that the speech should not be devoid of factual grounds (see Kudeshkina v. Russia , no. 29492/05, § 95, 26 February 2009, and Belpietro v. Italy , no. 43612/10, § 48, 24 September 2013) and must be supported by information, the gravity of the interference, and the chilling effect. In our opinion, the domestic courts took into account all these factors and performed a proper balancing exercise, and the Court should not substitute its own view for theirs.

14. The Spanish domestic courts did not state at any point that personal attacks on individuals were not protected by freedom of expression. It is necessary to read carefully the arguments of the three levels of jurisdiction, namely criminal judge no. 1 of Teruel, the Teruel Audiencia Provincial and, especially, the Constitutional Court (see paragraphs 20-24 of the judgment). In the view of the domestic courts, the attacks were gratuitously offensive and went beyond the legitimate right to criticise.

15. Concerning the allegation that M.M. was a “biased”, partial and incompetent judge, we share the view of the Audiencia Provincial that those value judgments “[went] beyond the legitimate right to criticise”. The criticism implied that the judge in question had disregarded the ethical obligations inherent in judicial office, or had even committed a criminal offence. The adoption by a judge of a deliberately erroneous decision could constitute an abuse of authority. In any event, the open letter alleged that Judge M.M. did not have certain qualities which characterise the exercise of judicial activity, such as impartiality in evaluating expert reports and witness statements, and that she had not been interested in the technical aspects of the case before her. We also share the view of the domestic courts that the applicants’ allegations of misconduct on the part of M.M. were based only on the fact that the judge had decided the case in favour of the company WBB, whose interests were not shared by the environmental platform which the applicants represented (see, mutatis mutandis , Peruzzi , v. Italy , no. 39294/09, § 60, 30 June 2015, and contrast Morice , §§ 156-61).

16. As the Court has stated many times, in cases such as the present one, which call for a fair balance to be struck between the right to respect for private life and the right to freedom of expression, the adjudication of the application should not, in principle, vary depending on whether it has been lodged under Article 8 by the person who has been criticised or under Article 10 by the person who has been critical. In principle, the two rights merit equal respect. Accordingly, in principle, the margin of appreciation should be the same in both cases. If the striking of a balance by the domestic courts is consistent with the criteria established by the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.

17. In our view, there are clearly no such reasons in the present case (see Peruzzi , cited above, § 65, and the references therein). The judgment of the Teruel Audiencia Provincial clearly stated that the value judgments concerning the administrative judge, who was described in the applicants’ letter as “unjust, ignorant and biased”, had gone beyond the legitimate right to criticise and disagree with a judicial decision. Moreover, in striking a balance between the rights concerned and applying these general principles to the applicants’ case, the Spanish Constitutional Court considered, taking into account the Court’s case-law, that criminal judge no. 1 had broadly analysed the conflict between the applicants’ freedom of expression and respect for the judge’s honour, and the Constitutional Court concluded that there had been serious defamation of the judge, exceeding the permissible limits of the right to freedom of expression. In sum, we consider that the Constitutional Court carried out a proper balancing exercise, taking into account all the interests involved.

18. Having regard to the above considerations, the majority could have considered, but did not, that the reasons advanced by the domestic courts in support of their decision were “relevant and sufficient”, and that the interference was not disproportionate to the legitimate aim pursued. The interference could thus reasonably be considered “necessary in a democratic society” within the meaning of paragraph 2 of Article 10 of the Convention. Therefore, in our view, our Court did have not serious reasons to substitute its own assessment for that of the domestic courts, which examined the question at issue with care and in line with the principles laid down by the Court’s case-law. Accordingly, we are of the opinion, dissenting from the majority, that there has been no violation of Article 10 of the Convention in this particular case. We would point out that in Morice ( cited above, § 124 ), referring to Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 100, ECHR 2013 (extracts)), the Court stated as follows:

“(iii) The Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts”.

To the best of our knowledge, the reasoning of the domestic courts applied the case-law standards and those courts carried out a correct assessment based on the relevant facts.

19. The role of the judiciary is intertwined or intrinsically associated with the rule of law; it can be said that the former is an aspect of the latter. Consequently, discrediting the judiciary without any factual foundation goes against the independence of judges, the separation of powers and the rule of law in general, and, therefore, not only fails to contribute to the very foundation of democracy, but actually undermines that foundation.

This is exactly what happened in the present case, in which a judge was discredited as regards the exercise of her judicial duties, without any factual or legal foundation, thus causing damage to her reputation.

In weighing up the applicants’ rights under Article 10 on the one hand, against the judge’s private and professional life under Article 8 on the other, regard must also be had to the fact that: (a) the judge’s right was intrinsically associated with the rule of law, which also needed protection, and (b) the unfounded attack against the judge was also an unfounded attack against the rule of law.

The rule of law underlies every Convention provision, including of course Articles 8 and 10. Likewise, the principle of effectiveness is a predominant or underlying Convention principle. This principle requires that, in the present case, for the Article 8 right of the judge in the exercise of her judicial duties to be practical and effective, she must not be offended or disrespected by anyone without factual foundation, because in such a case not only that right but also the rule of law would be violated.

20. As to the proportionality of the sanctions, these appear to us quite moderate given the seriousness of the applicants’ allegations, the harm caused to the judge’s reputation, and the fact that the applicable maximum fine under the Criminal Code was 420 day-fines (which corresponds to 3,360 euros (EUR)). The applicants were only sentenced to a daily fine of EUR 8 for a period of ten months (300 day-fines, corresponding to EUR 2,400), with an alternative penalty of deprivation of liberty. It is important to observe that the other amounts which they were ordered to pay did not entail an alternative penalty of deprivation of liberty in the event of non-payment. Therefore, we dissent also as regards the conclusion of the majority, because the sanctions imposed, although of a criminal nature, cannot be considered disproportionate in the circumstances of this particular case. Moreover, it is for the national judge to calculate the amount depending on the incomes of the persons involved. The applicants were both professionals, one of them a civil servant with an above-average salary.

21. The domestic courts applied the criteria laid down in the Court’s case-law and carried out a proper balancing of the two rights in conflict. The Court must respect States’ margin of appreciation, in accordance with the Interlaken, İzmir and Brighton Declarations. On the one hand, as Judge Elósegui pointed out in her dissenting opinion in Rashkin v. Russia (no. 69575/10, 7 July 2020), the Court has been much criticised by academia for not respecting this margin, this being seen as evidence of double standards . By contrast, in other cases, a tendency can be observed to grant protection under Article 10 to defamation and slander lacking any factual basis and contravening the domestic criminal codes of most of the 47 Contracting States. However, defending defamation does not contribute to pluralism and democracy. Although use of the criminal law is the ultima ratio , that does not mean that the criminal law should not be used in order to limit slander, insults, grossly gratuitous attacks and racial discourse. That is a matter falling within the States’ margin of appreciation.

[1] Morice v. France , no. 29369/10, § 107, 11 July 2013, superseded by Morice v. France [GC], no. 29369/10, ECHR 2015.

[2] “Section 60.4. of Law 7/2006 states that ‘[a]ctivities that are subject to the environmental impact assessment procedure shall not be subject to the environmental approval regulated in this Title”. Section 24 of the same legal text states as follows: ‘Projects, whether public or private, consisting of the execution of works, installations or any other activity included in Annex II of this Law, which are intended to be carried out in the territory of the Autonomous Community of Aragon, shall be subject to environmental impact assessment, in the manner provided for in this Law and other applicable regulations’. It is specifically discussed during this process whether the project in question is included in the aforementioned Annex II, Group 2, points 1, 2 and 3. Group 2 extractive industry projects comprise ‘[m]ines and excavation sites covered by the same authorisation or open-pit concession of mineral deposits and other geological resources of sections A, B, C and D whose use is regulated by the Mining Act and supplementary regulations, when any of the following circumstances apply: (1) holdings in which the affected land area exceeds 25 hectares; (2) farms that have a total earth movement of over 200,000 cubic metres per year; (3) mining operations that are carried out below the water table, taking as a reference level the highest among the annual oscillations, or that may entail a decrease in the refilling of superficial or deep aquifers’. …

The municipal council based its decision on the report of 31 March 2008, in the administrative file on pages 199 to 206, and its subsequent ratification at the administrative headquarters, prepared by the architect Mr I.Z., who ratified it as a judicial expert. At the request of the appellant, a judicial expert report was prepared which refuted the report of Mr I.Z. [The council therefore] opted for the conclusions of the judicial expert and mining engineer, Mr M.A. (see report, pages 271 to 305), in view of [the experts’] respective degrees and the subject matter of the expert report, taking into account Article 144 of Royal Decree 2857/1978 approving the Mining Regulation, which provides as follows: ‘To provide expertise on administrative files processed in matters related to the Mining Act, the qualifications indicated in the previous article will be required, in the field of the experts’ respective competencies and with the specialities indicated therein’, which do not include architecture. Furthermore, the decision was based on the clarity, coherence and forcefulness of the explanations in the written report and in the minutes of the proceedings. [A further factor was the expert’s] greater impartiality, due to his appointment by the court and the lack of any connection with the proceedings, whereas Mr I.Z. is the father of the spokesperson for the Aguilar Natural Platform, has spoken out against the proposed mining operation, and prepared his report at the express request of the municipal council. This raised doubts about the procedure to be followed, despite the initiation of the environmental approval procedure and a favourable report having been issued by the municipal technicians, concluding that the planned activity was compatible with urban planning policy and municipal ordinances. …

It has been proven that the affected land area does not exceed 25 hectares. Mr I.Z. affirms that in the project there are various contradictory figures regarding the surface area, and concludes that the affected land exceeds 25 hectares. In contrast, the report by Mr M. makes clear that the total surface area affected by the extractive activity is 23.88 hectares, corresponding to the perimeter of the works, which is the area allocated by the promoter to the extraction work. This should not be confused with the concession perimeter of 49.04 hectares, which refers to the total area of mining grids authorised under the concession agreement, according to the unit of measurement in section 75 of the Mining Act (Law 22/1973). Such data, the judicial expert asserts, are clearly contained in the memorial and plans submitted by the appellant, which distinguish the perimeter of the concession from that of the workings. Likewise, it has been proven that the earth movement is not more than 200,000 cubic metres per year. The judicial expert stressed the need to convert tonnes into cubic metres to make the calculation, starting from the real density of the material in the area. To do this, he extracted samples from the existing surveys and sent them to an independent laboratory, accredited by the Government of Aragon, applying coefficients to the result in the terms set out in his report and clarified at the hearing, in order to minimise possible errors. Taking [data from] our laboratories and warehouses in this way, an annual extraction volume of 134,970.98 cubic metres is obtained. It should be added that the opposite conclusions of Mr I.Z. are based on theoretical data which he claims to have taken from an ‘authoritative work’ by Mr L.J., a professor of project engineering who testified at the hearing as an expert witness and, agreeing with Mr M., asserts that the density cannot be specified in a theoretical way through a manual, in which only an interval of values can be fixed, and that an analysis is necessary to establish an accurate value. Likewise, he denies having attributed to clay in his manuals the density that Mr I.Z. claims to have taken from the theoretical criteria established by Mr L.” (Unofficial translation from Spanish into English).

[3] See the judgment of the Constitutional Court, pp. 36 and 48.

[4] According to the administrative court judgment: “If, in accordance with the provisions of the previous section, there are no reasons giving rise to the refusal of the licence, the file will be the subject of a fifteen-day public information campaign by means of an announcement in the Aragon Official Gazette and posting on the notice board of the town hall. The opening of the public information process will be notified personally to the immediate neighbours of the proposed location, so that they can object as they deem appropriate. Application data and documentation protected by the confidentiality rules will be exempted from public information. In the same way, reports will be requested from the relevant municipal council services according to the nature of the activity ... 4. The municipal council states in its resolution that the project does not comply with Article 4 of the Regulation on annoying, unhealthy, harmful and dangerous activities, since the real distance in a straight line between the mine and the urban area of the town would always be, according to the provisions of the project itself, less than 2 km, that is, between 1.79 (maximum) and 1.40 (minimum), as added by Mr I. when ratifying the report issued previously. Likewise, Mr I., in ratifying the report, points to ‘section 167 of the Aragon Urban Planning Act relating to licences for classified activities, with regard to distance, [which] should be 2 kilometres’. …

5. Regarding the need to have an urban licence and to draft the planning instrument provided for in the land development plan of Aguilar del Alfambra, it is not appropriate to carry out any assessment in this process, given the reviewing role of the courts, and taking into account the fact that the municipal council has not adopted any decision laying down such requirements, nor have such assessments been produced in support of the impugned decision. The municipal council limited itself in the contested act to indicating that it would be necessary to request [such assessments] once the corresponding environmental impact assessment procedure has been completed, indicating that such a circumstance ‘will have to be taken into account for the future’. It is not up to these courts to rule on future matters, given their reviewing role. DECISION The judicial administrative appeal is hereby allowed” (unofficial translation from Spanish into English).