Last Updated on November 8, 2022 by LawEuro
Information Note on the Court’s case-law
November 2022
Ayuso Torres v. Spain – 74729/17
Judgment 8.11.2022 [Section III]
Article 10
Article 10-1
Freedom of expression
Statement by an academic, member of the military, in televised scholarly debate found by disciplinary body to exceed freedom of expression limits, but not sanctioned due to time-bar: violation
Facts – When participating in a televised debate, the applicant, a member of the military and a university professor, spoke about the transition process from military dictatorship to democracy in Spain. He stated, inter alia, that the origins of the Spanish Constitution, which he described as a “pseudo-constitution”, were “spurious and bastardised”. Military disciplinary proceedings were brought against him on this account. Eventually, he was not sanctioned since the prosecution became time-barred. However, the final decision stated that he had gone beyond the limits of the right to freedom of expression accorded to military personnel. The applicant brought unsuccessful proceedings seeking that the impugned statement be deleted.
Law – Article 10:
The decisions delivered in the disciplinary proceedings implied that the applicant would have been sanctioned were it not for the fact that the minor offence had become time-barred. That conclusion could be deemed a de facto warning or admonition addressed to the applicant, which could have a chilling effect, preventing him from expressing in the future similar opinions since fresh disciplinary proceedings might be brought. Even though no criminal proceedings had been brought against the applicant, he could have faced a maximum penalty of one month’s house arrest if the facts had been found to amount to a minor offence and two months’ committal to a disciplinary unit if they had been found to amount to a serious offence. Those consequences, which could be relatively serious, had amounted to an interference with the applicant’s right to freedom of expression. The interference had been prescribed by law and had pursued legitimate aims such as national security and the defence of public order.
The subject of the television programme concerned issues that had a long-standing controversial nature in the Spanish society. The applicant’s statements had contributed to a public debate concerning an issue of general interest. They consisted of his personal opinions, the truthfulness of which was not susceptible of proof. They had to be understood within the specific context in which they had been made. Even the domestic decision had noted that the applicant had not intended to attack the Constitution but had rather made his statements in a cultural and scholarly context.
Despite the fact that the applicant had not been an elected representative and had not given a political speech stricto sensu, he had expressed his view on issues that might be deemed as having a political nature. The applicant’s statements had not called for any action, immediate or otherwise, and their potential impact had not entailed any harm. They had no impact on his public office or on his performance as a member of the military.
Given the applicant’s military status, the respondent State, in its assessment on whether to institute disciplinary proceedings, had been entitled to have regard to the requirement that military personnel, such as the applicant, respected and ensured the special bond of trust and loyalty between him and the State in the performance of his functions.
However, the applicant had also been a university professor, a circumstance which could lead to situations in which his right to freedom of expression in the field of teaching could collide with the restrictions in the military sphere. Apparently, there had been no obstacle for the applicant to hold both statuses. Additionally, he had previously spoken in similar terms in the academic sphere, without consequences. Moreover, the context in which he had made the impugned remarks had been that of an academic environment, in a discussion with other professors. The applicant’s position as a scholar had repeatedly been pointed out during the programme. However, the national courts had not properly taken into account the applicant’s status of a constitutional law professor. In the Court’s view, the present application related essentially to the exercise by the applicant of his right to freely express his views as an academic. That issue unquestionably concerned his academic freedom, which should guarantee freedom of expression and of action.
The disciplinary bodies had found that the applicant’s statements were not to be protected by the right to freedom of expression. Even though no sanction had been imposed on the applicant, this finding had constituted a sufficient reprimand for an opinion expressed in the course of an academic debate and on a matter of general interest. The disciplinary bodies had effectively warned the applicant to censure his future behaviour and statements concerning the Constitution, irrespective of the context or the intent, and could lead to a sanction. That warning had been in itself liable to have an impact on the exercise of his freedom of expression and even to have a chilling effect in that regard. The reasons advanced by the domestic authorities had therefore not been sufficient to justify the necessity of the interference in a democratic society.
Conclusion: violation (unanimously).
Article 41: EUR 4,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Kula v. Turkey, 20233/06, 19 June 2018, Legal summary)
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