In Fragoso Dacosta v. Spain, the ECHR ruled on 13.06.2023 that there had been a violation of the freedom of expression under Article 10 of the European Convention on Human Rights by sentencing Mr Fragoso Dacosta for statements made using profanity by megaphone at a peaceful protest against unpaid salaries.
The Ferrol Military Arsenal, a military base under the responsibility of the Ministry of Defence, was involved in a dispute over unpaid wages with employees of the company in charge of cleaning the arsenal building. In response to the unpaid wages, the employees of the cleaning company went on strike from October 2014 until March 2015. During that period, the employees, together with some trade-union representatives, held daily gatherings in front of the arsenal (that is, their place of work), shouting slogans relating to their protests (such as “the flag does not pay the bills”), whistling and generally creating noise. Those protests coincided with the daily solemn raising of the national flag in the presence of the military.
Chief Admiral of the arsenal sent a letter to the secretary of the trade union, protesting about the lack of respect on the part of the protesters towards the national flag. A day later, the applicant, who was a representative of the above-mentioned trade union, participated in a meeting with the admiral, who requested him to “tone down” the protest during the raising of the national flag.
After the meeting with the Admiral, he applicant, together with some thirty protesters, was in front of the arsenal at the moment of the solemn raising of the national flag. He shouted through a megaphone: “Here you have the silence of the fucking flag” (“aquí tedes o silencio da puta bandeira”) and “The fucking flag must be set on fire” (“hai que prenderlle lume á puta bandeira”). No other related incidents took place.
As a result of the facts referred to above, the applicant was investigated and sentenced under Article 543 of the Spanish Criminal Code for the offence of insulting Spain.
On 22 March 2017, Ferrol Criminal Court No 1 convicted the applicant of the aforementioned offence. The court held that his statements had been made in public in front of military personnel with the aim of showing contempt or causing offence, and noted that, in two meetings held in previous days, the military authorities had expressly asked the complainant to “tone down” his protest during the solemn ceremony.
The applicant was sentenced to a fine of EUR 1 260, which could be replaced by a custodial sentence in the event of non-payment.
The applicant appealed against the General Court’s decision, alleging disproportionate interference with his right to freedom of thought and freedom of expression.
On 8 February 2018, the Audiencia Provincial dismissed the appeal and upheld the first court’s decision on the applicant’s conviction stating, in particular, that military personnel experienced “an intense sense of humiliation” because of the applicant’s statements.
On 1 March 2019, the Criminal Court No. 1 of Ferrol declared the criminal liability of the plaintiff extinguished following the payment of the fine by the plaintiff.
The complainant filed an amparo appeal with the Spanish Constitutional Court, alleging a violation of his rights to ideological freedom and freedom of expression. (In this context, we note that an amparo appeal is an action, a specific form of challenge which is lodged with the constitutional court alleging a violation of fundamental rights).
The Constitutional Court examined the amparo appeal in an order of 25 February 2019, on the grounds that it had “special constitutional significance”.
The Attorney General asked the Constitutional Court to allow the applicant’s amparo appeal, arguing that the criminal sanction was disproportionate and that the courts of first and second instance did not properly consider the essential elements of the case, such as the context and objectives of the message.
The Constitutional Court, by six votes to five, dismissed the amparo appeal. It explained at the outset that its function was to establish whether the contested judgments had balanced the applicant’s right to freedom of expression against the protection of the general interest involved in defending the symbols of the State. It observed that the applicant’s statements had not concerned the unpaid wages at the heart of the protests, that those statements had been made in the context of a solemn ceremony, and that some of the protesters had rejected them, saying “no, not that” (“no, eso no”). The Constitutional Court concluded that the statements transmitted a feeling of intolerance and thus were not protected by freedom of expression and that the penalty imposed on the applicant was proportionate.
Evaluation of the European Court of Human Rights
First, the Court pointed out that the disputed statements made by the applicant were not aimed at a person but at a symbol.
The Court stated that a clear distinction must be drawn between criticism and insult and that, in certain circumstances, if the sole intention of any form of expression is to insult an institution or a person, an appropriate punishment would not, in principle, constitute a violation of Article 10 § 2 of the Convention.
It was noted that the language used by the complainant could have been considered provocative and the use of gratuitous or unsubstantiated swearing. However, the Court noted that there were no indications of disorder following the applicant’s statements. Neither the Audiencia Provincial nor the Government attempted to justify the applicant’s conviction by reference to incitement to violence or hate speech. Although the Constitutional Court referred to a “feeling of intolerance” conveyed by the applicant, it did not examine whether there were sufficient grounds to consider that his statements constituted hate speech, such as the existence of a tense political or social context or the capacity of the statements to lead to harmful consequences, and notes that the Government did not argue that the statements had a wide public impact.
The Court held that it could not intuit the applicant’s intentions, but his statements could not be categorised as a mere insult, but as a criticism and expression of protest and dissatisfaction with military personnel as employers of cleaning company employees.
The complainant was a trade union representative who made the statements during a protest against unpaid wages. It follows in this respect that there was a debate on a matter of general interest to the employees of the company. The Court reiterates in this respect that members of a trade union must be able to express their grievances to their employer, and although any person participating in a public debate of general interest – such as the applicant – must not exceed certain limits, in particular as regards respect for the rights of other persons, a certain degree of exaggeration is permitted.
In this regard, the Court notes that the statements at issue in the present case were made orally by a trade union representative on one occasion only, in front of a limited audience, in the context of a protest lasting several months and relating to unpaid wages, and that they did not result in any disturbance or disorder.
In those circumstances, the Court considers that the severity of the penalty imposed exceeded the gravity of the offence. The Court concluded that the criminal penalty imposed on the applicant, in the particular circumstances of the case, was disproportionate to the aim pursued.
In the light of the circumstances of the case, the Court holds that the national authorities did not strike a fair balance between the relevant interests at stake when they sentenced the applicant and imposed such an excessive penalty. Consequently, there was a violation of Article 10 of the Convention.
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