Last Updated on September 22, 2021 by LawEuro
Information Note on the Court’s case-law 223
November 2018
Toranzo Gomez v. Spain – 26922/14
Judgment 20.11.2018 [Section III]
Article 10
Article 10-1
Freedom of expression
Conviction for slander for qualifying methods used by police as “torture”, in discord with its legal definition: violation
Facts –To protest against his eviction from a building, the applicant attached himself to the floor of an underground tunnel which he had dug together with the other protesters. In order to get him out, the police tied a rope around his waist, attempting to persuasively pull him out, and tied his hand to his ankle for a long period of time in a painful position. They also threatened him with the use of gas and the imminent collapse of the whole underground structure. The applicant eventually released himself voluntarily and was arrested.
In a press conference, he alleged that he had been subjected to torture by the police officers and fire fighters during the eviction. He was convicted of slander for this statement and sentenced to a daily fine of 10 euros for 12 months, with one day’s imprisonment for every two days of fine unpaid in default. He was also ordered to pay compensation to the police officers in a total amount of EUR 1,200 and to publish, at his own expense, the judgment in the media.
Law – Article 10: The interference with the applicant’s right to freedom of expression had been prescribed by the Spanish Criminal Code and pursued the legitimate aim of protecting “the reputation of rights of others”.
(i) Nature of the applicant’s statements – Even if the applicant had used a style which might have involved a certain degree of exaggeration, he had complained about his treatment by the authorities during his confinement, which, regardless of the fact that the applicant had put himself in that situation, must have caused him a certain feeling of distress, fear and mental as well as physical suffering.
(ii) The context of the interference and the method employed by the Spanish courts to justify the applicant’s conviction – The applicant had carefully described the methods used by the police and fire fighters, which corresponded to what had also been proven before the domestic court in the framework of the criminal proceedings. Additionally, he had left no room for public opinion to picture something different from what had happened and there was nothing in the case to suggest that the applicant’s allegations had been made otherwise than in good faith and in pursuit of the legitimate aim of debating a matter of public interest. The only point of discord had thus been in the characterisation of those facts. The expression “torture” used by the applicant had to be interpreted as a value judgment, the veracity of which was not susceptible of proof. The applicant had used the word “torture” in a colloquial manner with the purpose of denouncing the police methods and what he had considered to have been an excessive and disproportionate use of force by the police and the mistreatment he had considered to have received at the hands of the police and the fire fighters.
(iii) Extent to which the individual policemen and the firemen had been affected – No account had been taken concerning whether the statements had advocated the use of violence, or whether other means had been available for replying to the allegations before resorting to criminal proceedings. Indeed, there was no reference either in the domestic courts’ decision or in the Government’s observations as to whether the applicant’s statements had actually had negative consequences for the police officers. Unlike in the case of Cumpănă and Mazăre v. Romania [GC], the domestic courts had not contested the truthfulness of the applicant’s allegations, but only the legal qualification of the methods used by the police.
(iv) Severity of the interference – The sanction imposed could have had a “chilling effect” on the exercise of the applicant’s freedom of expression as it might have discouraged him from criticising the actions of public officials (see, mutatis mutandis, Lewandowska-Malec v. Poland, § 70).
(v) Balancing the applicant’s right to freedom of expression against the policemen’s right to respect for their private life – Restricting the applicant’s right to criticise the actions of public powers by imposing an obligation to accurately respect the legal definition of torture set in the Spanish Criminal Code would be imposing a heavy burden on the applicant (as well as on an average citizen).
In sum, the sanction imposed on the applicant had lacked appropriate justification and the standards applied by the domestic courts had failed to ensure a fair balance between the relevant rights and related interests. The interference complained of had therefore not been “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 4,000 in respect of non-pecuniary damage; EUR 1,200 in respect of pecuniary damage.
(See Cumpănă and Mazăre v. Romania [GC], 33348/96, 17 December 2004, Information Note 70; and Lewandowska-Malec v. Poland, 39660/07, 18 September 2012. See also Savva Terentyev v. Russia, 10692/09, 28 August 2018, Information Note 221; Falzon v. Malta, 45791/13, 20 March 2018, Information Note 216; and Perinçek v. Switzerland [GC], 27510/08, 15 October 2015, Information Note 189)
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