Legal summary

June 2023

Fragoso Dacosta v. Spain - 27926/21

Judgment 8.6.2023 [Section V]

Article 10

Article 10-1

Freedom of expression

Disproportionate criminal sanction imposed on a trade-union representative for verbally insulting the national flag of Spain during a protest at a military base regarding unpaid wages: violation

Facts – The applicant, a trade union representative, participated in daily protests from October 2014 until March 2015 in front of Ferrol Military Arsenal, a military base, in response to a dispute regarding unpaid wages of employees of the company in charge of cleaning the arsenal building, which had prompted them to go on strike. He was convicted of the criminal offence of insulting Spain after shouting through a megaphone, during the solemn raising of the national flag, “Here you have the silence of the fucking flag” and “The fucking flag must be set on fire”. He was sentenced to a fine of EUR 1,260, which could be replaced by deprivation of liberty in the event of non-payment. The applicant’s appeal before Audiencia Provincial was dismissed as was his amparo appeal before the Constitutional Court.

Law – Article 10: The criminal sanction imposed on the applicant had amounted to an interference with his right to freedom of expression, had been “prescribed by law” and, given the importance of promoting social cohesion sought to be achieved through the protection of the flag, had pursued the legitimate aim of protecting the “rights of others”. The Court therefore had to determine whether the criminal sanction imposed had been “necessary in a democratic society”.

The Constitutional Court had considered that the applicant’s statements did not enjoy the protection of the right to freedom of expression under the Spanish Constitution, because they had been objectively offensive, had showed hostility and disrespect towards that symbol in a context entirely unrelated to the values it represented, and had been unnecessary and unconnected with the unpaid wages claims. While the Court accepted that the language used by the applicant could have been considered provocative and the use of expletives gratuitous, there had been no indications of disorder or disturbances following his statements and neither the Audiencia Provincial nor the Government had sought to justify his conviction by reference to incitement to violence or hate speech. Although the Constitutional Court had referred to a “feeling of intolerance” transmitted by the applicant, it had not examined whether there had been sufficient grounds to find that his statements had amounted to hate speech, such as the existence of a tense political or social background or the capacity of the statements to lead to harmful consequences. In addition, they had been oral statements, made during a protest, so the applicant could not have reformulated, refined or retracted them. It had not been argued that the statements had had any broad public impact.

The present case was also distinguishable from those where the right to freedom of expression had been weighed against the right to respect for a person’s private life. Whilst provocative statements directed against a national symbol might hurt people’s feelings, the damage thus caused, if any, was of a different nature compared with that caused by attacking the reputation of a named individual. Although the Audiencia Provincial had stated that the military personnel had experienced “an intense feeling of humiliation”, the applicant’s statements had not been directed at any person or group of persons but at a symbol. They had not resulted in any personal or material damage, criminal proceedings had been brought solely on the initiative of the public prosecutor (who in the Constitutional Court proceedings had asked for the amparo appeal to be granted), and no civil claims had been lodged.

In addition, the day before the statements at issue, the military authorities had expressly asked the applicant to “tone down” his protest during the solemn ceremony and, as noted by the criminal court, his references to the silence of the flag, could be considered to be an expression of frustration against that request. His statements could reasonably be regarded not as a mere insult but as criticism and an expression of protest and dissatisfaction towards the military staff as the employers of the cleaning company employees. In the context, it could be accepted that there had been a debate on a matter of general interest for those employees. Trade union members had to be able to express to their employer the demands by which they sought to improve the situation of workers in their company and while any individual who took part in a public debate of general concern must not overstep certain limits, particularly with regard to respect for the reputation and rights of others, a degree of exaggeration, or even provocation, was permitted.

Lastly, the amount of the fine was significant and the fact that deprivation of liberty could be imposed as an alternative penalty was particularly relevant. Taking into account the particular circumstances, the severity of the punishment imposed had exceeded the seriousness of the offence; the criminal sanction had thus been disproportionate to the aim pursued. In conclusion, the Court was not persuaded that the domestic authorities had struck a fair balance between the relevant interests at stake when convicting the applicant and imposing such an excessive sanction on him.

Conclusion : violation (unanimously).

Article 41: EUR 1,260 in respect of pecuniary damage and EUR 6,000 in respect of non-pecuniary damage.

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

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