Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Decision Pending Expands Expression
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The Fifth Section of the European Court of Human Rights (ECtHR) unanimously ruled that Spain violated the applicant’s rights under Article 10 of the European Convention of Human Rights (ECHR). The applicant, who was a trade union representative, shouted offensive words, inter alia towards the national flag during a protest due to unpaid wages. He was criminally convicted, by national courts, for a criminal act of insulting Spain. The ECtHR found that the local courts did not take into account the context of the case, in particular that the impugned statements were related to the labor protest, that the applicant was a trade union representative, and that there was no public disorder, but merely offensive words. Thereby, the interference in the applicant’s freedom of expression was not necessary in a democratic society.
A military base under the Ministry of Defense of Spain was involved in a dispute regarding unpaid wages with staff employed by a company in charge of cleaning an arsenal building. To protect their rights, the employees went on strike from October 2014 until March 2015. There were daily gatherings in front of the arsenal building, where the strikers created noise and shouted that flags do not pay salaries. The gatherings happened at the same time as the national flag was solemnly raised on a daily basis as part of the military routine.
On 28 October 2014, an admiral in charge of the arsenal building sent a letter to the trade union to complain about the disrespect towards the national flag. A meeting between the admiral and the union was held, and the applicant was present as the union’s representative. The admiral asked for the protesters to tone down the protest during the raising of the national flag. The protesters did not follow the admiral’s request. On October 30, 2014, the applicant, accompanied by other protesters, said through a megaphone, while the flag was being raised: “‘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” [para. 7].
After a few months, the applicant was charged with the criminal act of insulting Spain. A local court sentenced him to a 1,260 EUR fine which could have been replaced by deprivation of liberty. The court explained that the applicant’s shouting was made “with the aim of showing contempt or causing offence” [para. 9] even though the military staff asked the protesters to tone down the protest. The applicant appealed but to no avail.
The second-instance court argued that the “military personnel had experienced ‘an intense feeling of humiliation’ on account of the applicant’s statements” [para. 11]. Finally, the applicant filed a constitutional complaint (amparo), but the Constitutional Court of Spain, by a majority decision (6:1), decided that the applicant’s freedom of expression was not violated. The court reasoned that the impugned statements were not related to unpaid wages and that even some protesters had expressed their disapproval of the applicant’s words. Moreover, using such harsh words during the act of raising the flag did constitute a criminal offense, according to the Constitutional Court. The sentence and conviction, in the eyes of this tribunal, were proportionate and, thus, legal. After exhausting all domestic remedies, the applicant filed an application before the European Court of Human Rights (ECtHR), arguing that his freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) was violated.
The Fifth Section of the European Court of Human Rights had to decide whether the conviction of a protester, who shouted insults at the national flag, violated his freedom of expression under the ECHR.
The applicant argued that even if his language was harsh, the local courts had not taken the context into account while adjudicating his case. He did not provoke violence nor public disorder and his words were a symbolic expression of disappointment.
For its part, the Government believed that the conviction fulfilled the tripartite test (legality, legitimate aim, and necessity) and that the domestic courts had duly analyzed the case.
The Court opined that by criminally convicting the applicant there was an interference with his right to freedom of expression. Hence, the Court studied whether this interference breached freedom of expression through a tripartite test, which analyzed whether the interference was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society to achieve such aim.
Regarding the first part of the test, the Court considered that the interference was prescribed law, namely by Article 543 of the Spanish Criminal Code. Regarding the legitimate aim, the Court opined that the promotion of social cohesion —through the protection of national symbols— “correspond[ed] to the legitimate aim of protecting the ‘rights of others’” under Article 10 (2) [para. 24]. Therefore, the Court turned its reasoning to the issue of necessity.
It noted that the applicant had shouted expletives not against a particular person, but a symbol (the national flag). The Court explained, following the precedent laid out in Handyside v. the United Kingdom, that even ideas “that offend, shock or disturb the State or any sector of the population enjoy Article 10 protection” [para. 28]. Nonetheless, the Court mentioned that “a clear distinction must be made between criticism and insults and that, in some 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” [para. 28].
To draw such a distinction, courts need to analyze the case as a whole, including the nature of statements and their context. The Court found the applicant’s language to be provocative, but the impugned phrases did not cause violence or public disturbance. For the Court, the statements did not amount to hate speech, either. There was no broad impact on the public since the remarks were disseminated orally so “the applicant had no possibility of reformulating, refining or retracting them” [para. 29]. The ECtHR distinguished the present case from those in which the right to the private life of others had been involved. It argued that, albeit “provocative statements directed against a national symbol may hurt people’s feelings, the damage thus caused, if any, [was] of a different nature compared with that caused by attacking the reputation of a named individual” [para. 30]. No real damage occurred against anyone, in the opinion of the Court, even though the second-instance court had concluded that the military staff had experienced “an intense feeling of humiliation”.
The Government’s argument that the impugned remarks were not related to the protest was rejected by the ECtHR. The applicant’s reference to the silence of the flag could be considered as an expression of frustration against the request of the admiral to tone down the protest. Even though it was impossible to establish the real intention of the applicant, for the Court it was reasonable to consider the statements “not as a mere insult but as criticism and an expression of protest and dissatisfaction towards the military staff as the employers of the cleaning company employees” [para. 31].
Furthermore, the Court underscored the fact that the applicant was a trade union representative and that the criminalized remarks were part of the protest against unpaid salaries. Hence, the applicant was involved in a debate of general interest. The Court noted that a trade union member must be in a position to freely express a demand towards an employer regarding the improvement of the position of workers. Finally, the Court stressed that when it comes to debates of public interest “a degree of exaggeration, or even provocation, is permitted; in other words, a degree of immoderation is allowed” [para. 32].
Lastly, the court assessed the sanction: a fine of 1,260 EUR. Here the ECtHR reasoned that “the severity of the punishment imposed exceeded the seriousness of the offence,” [para. 33] in particular since the fine could have been replaced by deprivation of liberty.
In conclusion, the Court considered that Spain violated the applicant’s freedom of expression as enshrined in Article 10 of the ECHR. The applicant did not seek any reimbursement of costs of proceedings, but the court did award him with 1,260 EUR for pecuniary damages, and 6,000 EUR for non-pecuniary damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands freedom of expression since it rules that using offensive language against a national symbol is protected under Article 10 of the ECHR, if there are no other negative effects (e.g. public disorder) and if statements are a part of a debate of general interest.
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.
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