Content Regulation / Censorship, Defamation / Reputation, Political Expression
Nélio Raul Brandão v. Juiz de Direito da 2ª Vara Cível da Comarca de Campo Grande
Closed Expands Expression
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The European Court of Human Rights held that criminal defamation proceedings and a subsequent prison sentence for a member of the Spanish Senate who had criticised government policy violated the right to freedom of expression. The senator had criticized the government for failing to ensure the safety of the Basque citizens and accused government officials of involvement in the murder of political dissidents, and had been sentenced to a year and a day’s imprisonment. The European Court ruled that an interference with the right to freedom of expression of an elected representative, particularly an opposition member, calls for the closest scrutiny, and held that the government’s refusal to allow a defense of truth meant that the criminal proceedings were an unjustified interference with the exercise of his free speech.
Castells was a lawyer from the coastal city of San Sebastián, in Spain. As a senator, he was elected from a list of Herri Batasuna, a political group that supported independence for the Basque Country. In June 1979, one of Castells’ articles on the Basque Country was published in Punto y Hora de Euskalherria weekly magazine. In his highly controversial piece, Castells first reminded his readers that government officials had been reluctant to identify and prosecute individuals or groups behind terror attacks in the Basque Country that had claimed many lives. He later suggested that the government was complicit in the killings, stating that behind these acts “there can only be the Government, the party of the Government and their personnel. We know that they are increasingly going to use as a political instrument the ruthless hunting down of Basque dissidents and their physical elimination.” [para. 7]
Less than a month later, the public prosecutor brought a criminal action against Castells under Article 161 of the Criminal Code of 1983, which imposed long-term prison sentences against those “who seriously insult, falsely accuse or threaten … the Government …” Lifting his parliamentary immunity, the Criminal Davison of the Supreme Court found Castells guilty of proffering serious insults against government officials and civil servants and sentenced him to one year and a day in prison. It found that his political criticisms in the article had exceeded the permissible limits and had attacked the government’s honor.
On appeal, Castells argued that the judgment violated his right to be presumed innocent by refusing to allow him to present evidence as to the truth of his expressions. He further argued that under Article 23 of the Constitution he had the right to participate in political affairs and to carry out his public duties as a senator. The Constitutional Court, however, dismissed Castells’ appeal in April 1985.
Later in September 1985, Castells lodged an application with the then-existing European Commission on Human Rights, alleging that he was a victim of a violation of his right to freedom of expression under Article 10 of the European Convention on Human Rights.
Castells submitted to the European Court of Human Rights that the criminal proceedings and the subsequent conviction interfered with his right to freedom of expression, in particular because he was not allowed to adduce evidence as to the truth of his statements contained in the impugned article.
The Court first held that the criminal proceedings and the prison sentence “undeniably” interfered with his exercise of the right to freedom of expression. It then proceeded to determine whether this interference was “‘prescribed by law,’ carried out in pursuit of one or more of the legitimate aims set out in Article 10 para. 2 and ‘necessary in a democratic society’ in order to attain such an aim or aims.” [para. 34]
Even though Castells did not dispute that the criminal action was pursuant to the Criminal Code of Spain, namely Articles 161 and 162, he called into question the legitimacy of the Supreme Court’s novel ruling that the defense of truth was inadmissible in relation to the offense of insulting the government. In response, the government argued that pursuant to Article 461 of the Criminal Code, a defense of truth was admissible only where the defendant was charged with the offense of insulting civil servants in the performance of their duties and not the government as a whole. In light of the wordings of Article 461, the Court found the government’s interpretation reasonable and concluded that the interference was indeed prescribed by law.
As to whether the criminal action and the subsequent prison sentence pursued a legitimate aim, the government submitted its Constitutional Court’s view that the impugned article could threaten the security of the country by attempts to discredit the democratic institutions. Noting the climate of insecurity in Spain in 1979 when the article was published, the Court agreed with the government that the proceedings brought against Castells were brought for the prevention of disorder, in addition to protecting the reputation of others.
On the question of whether the interference was “necessary in a democratic society,” the Court first recalled that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” [para. 42] It particularly emphasized the importance of this right for elected officials as they represent their electorate and defend their interests. As such, the Court ruled that “interferences with the freedom of expression of an opposition member of parliament, like the applicant, call for the closest scrutiny on the part of the Court.” [para. 42] The Court also stressed that while the freedom to express political views is not absolute in nature, “the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician.” [para. 46] It further stated that “the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.” [para. 46]
As applied to case, the Court noted Castells’ several failed attempts to present evidence in good faith in order to establish the truth of his claims about the killings that had taken place in the Basque Country. In the Court’s view, it was impossible to know the outcome of the criminal proceedings had the Supreme Court of Spain admitted his evidence during the trial.
Accordingly, the Court found the interference was not “necessary in a democratic society” and as a result, it found a violation of Article 10 of the European Convention on Human Rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment of the European Court of Human Rights requires strict scrutiny of government interferences with the right to freedom of expression of politicians, and calls for restraint in the use of criminal proceedings to restrict speech, allowing them only as a matter of last resort. The Court also emphasises that a defense of truth should be available. In its later jurisprudence, the Court adds to this that requiring a defendant in defamation proceedings to prove the absolute truth of allegations can be a violation of the right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
This judgment, which is formally binding only on Spain but establishes an authoritative interpretation of the meaning of Article 10 for all Council of Europe Member States, stands as a cornerstone of the Court’s jurisprudence on the right to freedom of expression and is frequently cited in other cases.
Let us know if you notice errors or if the case analysis needs revision.