Last Updated on November 2, 2019 by LawEuro
Information Note on the Court’s case-law 216
March 2018
Stern Taulats and Roura Capellera v. Spain – 51168/15 and 51186/15
Judgment 13.3.2018 [Section III]
Article 10
Article 10-1
Freedom of expression
Prison sentence for setting fire to a large photograph of royal couple turned upside down: violation
Facts – In September 2007, while the King was on an official visit to Girona, which was followed by an anti-monarchist and separatist demonstration, a rally took place on a square in the city where the applicants set fire to a large photograph of the royal couple which they had turned upside down.
In July 2008 the criminal judge of the Audiencia Nacional convicted the applicants of the offence of insulting the Crown, sentencing them to fifteen months’ imprisonment in lieu of a EUR 2,700 fine imposed on each of them. The applicants were to serve the prison term in the event of total or partial non-payment of the fine.
The Criminal Chamber of the Audiencia Nacional upheld that judgment.
When the judgment became final, the applicants paid their fines. They subsequently lodged an amparo appeal with the Constitutional Court, which delivered judgment in July 2015, finding that the offence with which the applicants had been charged had not been covered by the exercise of the freedoms of expression and of opinion in so far as they had been guilty of incitement to hatred and violence against the King and the monarchy.
Law – Article 10: The impugned conviction had amounted to an interference with the applicants’ right to freedom of expression, which interference was prescribed by law and pursued a legitimate aim, that is to say the protection of the reputation or rights of others.
The Constitutional Court’s judgment had called in question the manner in which the applicants had expressed their political criticism, that is to say the fact that they had used fire and had displayed a large photograph which they had previously turned upside down. The Constitutional Court considered that such a mode of expression had overstepped the bounds of freedom of expression and fallen within the sphere of hate speech and incitement to the use of violence.
The three factors cited by the Constitutional Court were symbolic, and were clearly and obviously related to the concrete political criticism levelled by the applicants, targeting the Spanish State and its monarchic form: the effigy of the King of Spain was the symbol of the monarch as the head of the State apparatus; the use of fire and the fact of turning the photograph upside down expressed radical refusal or rejection, and those two actions had expressed criticism of a political or other nature; the size of the photograph had apparently been intended to ensure the visibility of the action in question, which had been carried out on a public square. The offence with which the applicants had been charged had been one of the increasing numbers of provocative “staged events” which were being used to attract media attention and which went no further than recourse to a certain permissible degree of provocation in order to transmit a critical message in the framework of freedom of expression.
The applicants’ intention had not been to incite people to commit acts of violence against the person of the King, even though the “staged event” had involved burning his image. An act of this kind should be interpreted as the symbolic expression of dissatisfaction, as a protest. The “event” staged by the applicants had been a means of expressing an opinion in the framework of a debate on a matter of public interest, that is to say the monarchical institution.
No incitement to violence could be inferred from combined consideration of the elements used for staging the event and of the context in which it had taken place, nor could such incitement be established on the basis of the consequences of the act, which had not led to violent or public disorder.
The classification as hate speech of an act which, like that of which the applicants were accused in the present case, was the symbolic expression of political criticism and rejection of an institution, and its consequent exclusion from the protection guaranteed by freedom of expression, would have entailed an excessively broad interpretation of the exceptions allowed under the Court’s case-law, and was liable to undermine the pluralism, tolerance and openness without which there was no “democratic society”. The Government’s preliminary objection under Article 17 of the Convention had therefore to be rejected.
As regards the criminal penalty imposed on the applicants, that is to say a prison sentence for an offence committed in the context of a political debate, which was the severest legal punishment for a criminal act, had amounted to an interference with the freedom of expression disproportionate to the legitimate aim pursued and unnecessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: finding of a violation sufficient in itself in respect of non-pecuniary damage; EUR 2,700 to each applicant in respect of pecuniary damage.
(See also Christian Democratic People’s Party v. Moldova (no. 2), 25196/04, 2 February 2010; Mamère v. France, 12697/03, 7 November 2006, Information Note 91; and the Factsheet on Hate speech)
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