Case Summary and Outcome

The European Court of Human Rights found that a Spanish elected representative’s prison sentence for insulting the Spanish King violated the right to freedom of expression. A political spokesperson, asked to comment on the King’s visit to the Basque Country amid a tense political conflict with a Basque newspaper, accused the King of “defending and in charge of torturers”. The court of first instance acquitted the spokesperson, but on appeal the Supreme Court overturned the decision and sentenced him to one year imprisonment – a decision confirmed by the Constitutional Court. The European Court of Human Rights stressed that special criminal laws giving the King increased protection against slander are not “in keeping with the spirit of the [European] Convention [on Human Rights]” and that the use of prison sentences in these political cases can only be used in the most exceptional circumstances, such as hate speech or incitement to violence.

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Facts

In February 2003, Spanish police searched and closed a daily newspaper from the Basque region, Euskaldunon Egunkaria, because of the newspaper’s alleged links with ETA, a Basque terrorist organization. Ten of the newspaper’s employees were arrested and interrogated in secret detention. The employees stated that they experienced ill-treatment under police custody.

A week after the newspaper’s closure and employees’ detention, the President of the Basque Country received the Spanish King on an official visit. At a press conference, Arnaldo Otegi Mondragon, a spokesman for a Basque nationalistic parliamentary group, was asked by a journalist about the recent political events regarding Euskaldunon Egunkaria and the King’s visit. In response, Otegi described it as “pathetic” and “a genuine political disgrace” and that the King was in charge of the people who had tortured the journalists, defends torturers and “imposes his monarchical regime on our people through torture and violence”. [para. 10]

As a result of these public statements, the Spanish authorities charged Otegi with the crime of “serious insults against the King” under Article 490.3 Spanish Penal Code.

The Basque Country High Court of Justice acquitted Otegi, finding he had merely expressed his political criticism towards the King and had not attacked his human dignity.

The public prosecutor appealed this decision to the Supreme Court.

The Supreme Court overturned the lower court’s decision, and sentenced Otegi to one year imprisonment. The Court found that Otegi’s remarks were “unnecessary, overstepping the limits beyond which criticism could be deemed to be hurtful or upsetting”. [para. 16] There was a dissenting opinion which would have found that Otegi’s speech had been within the legitimate boundaries of his right to freedom of expression.

Otegi then brought an amparo appeal to the Constitutional Court, claiming his right to freedom of expression as guaranteed under Article 20 of the Spanish Constitution had been violated. The amparo appeal was rejected by the Constitutional Court, which agreed with the Supreme Court’s decision that Otegi had not exercised his right to freedom of expression in a propionate manner. It found that Otegi had “expressed open contempt for the King and the institution he embodied, affecting the essential core of his dignity” which did not fall within the scope of Article 20 of the Spanish Constitution. [para. 22]

Otegi was sent to prison and, after exhausting all domestic remedies, brought an application to the European Court of Human Rights arguing that his right to freedom of expression under Article 10 of the European Convention of Human Rights had been violated.

Article 10 states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

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Decision Overview

The European Court of Human Rights delivered a unanimous judgement. The central issue for the Court’s determination was whether imposing a prison sentence on Otegi for insulting the crown was a disproportionate limitation to the right to freedom of expression.

Otegi argued that Article 490.3 was not sufficiently clear, and thus not “prescribed by law”. He also attacked the “legitimate aim” requirement: the goal of the crime was a mere “symbolic punishment” of any attempt to criticize the monarchy. He argued that his punishment had been disproportionate. [para. 35-36] Otegi put special emphasis on his status as political spokesperson and the tense political context of the case – the newspaper’s closure and unlawful detention of its journalists. He also argued that it should not matter that the police officers were later acquitted of the accusations of torture, since this was not known when Otegi had made his statements. Otegi stressed that these remarks should have been put in the bigger picture that the King has played a crucial role in grating pardon to numerous members of the Spanish security forces who were in fact convicted of torture. [para. 37] Otegi maintained that the King had not suffered any harm, nor brought any civil proceedings against Otegi and that the use of a prison sentence in the context of a political debate can only be compatible with freedom of expression in exceptional circumstances [para. 39]

The Spanish government defended its position by stating that calling someone a torturer is a “serious slur on the honour of whoever happened to be the target, including of course the King.” [para. 40] Spain further argued that the Spanish courts took due account of the European Court of Human Rights jurisprudence, but that Article 10 did not provide “a supposed right to proffer insults” and that public figures also have a right to protect their reputation. [para. 41] The Spanish government stressed the King’s “unique institutional position” and his “neutral status in political debate”, which sets him apart from ordinary State institutions. It submitted that as Otegi’s comments had not been generally anti-monarchy, but specific insults targeted at the King, he had overstepped the legitimate boundaries of freedom of expression. [para. 43]

The Court accepted that it was undisputed that there had been an interference with Otegi’s right to freedom of expression, and that this interference can only be justified if three conditions are met: that the interference be “prescribed by law”, that it has a “legitimate aim”, and that it is “necessary in a democratic society”. The Court accepted that the interference was “prescribed by law” since the statutory basis was Article 490.3 SPC, and that it was legitimate, since Spain wanted to “protect the reputation or rights of others”. The Court therefore only had to determine whether the interference was proportionate – that it was “necessary in a democratic society”.

The Court acknowledged the importance of Otegi’s capacity as elected representative and spokesperson of a parliamentary group and referred to its case of Mamère v. France in finding that this meant that Otegi’s speech was a form of political expression. It explained that political expression is considered an issue of public interest, in which authorities’ margin of appreciation for legitimate limitation is “particularly narrow”. [para. 51]

The Court also examined the way in which Otegi expressed himself. Following Lindon, Otchakovsky-Laurens and July v. France and  Feldek v. Slovakia, a distinction is made between facts and value judgements, and the Court accepted that Otegi’s description of the King being “in charge of torturers” was a value judgment – of which the truthfulness need not be proven. It added that the fact that proceedings concerning the allegations of police torture of the Basque newspaper’s executive members were discontinued (due to lack of evidence) did not change the fact that Otegi’s statements “form part of a wider public debate […] in cases of ill-treatment [by State security forces]”. [para. 53]

Again with reference to the Mamére case, the Court analyzed Otegi’s language and while it agreed that his choice of words could be considered provocative, it emphasized that a degree of exaggeration, or even provocation, is “permitted” in public debate. [para. 54] It held that although Otegi did paint the King in a negative light, he did not “advocate the use of violence, nor […] amount to hate speech”. [para. 54] It noted the context of Otegi’s statements, specifically that they were made “orally during a press conference, so that [he] had no possibility of reformulating, refining or retracting them before they were made public”. [para. 54]

The Court examined the legitimacy of Article 490.3 of the Spanish Penal Code, “which affords the Head of State a greater degree of protection than other persons” and foresees a heavier penalty for insulting the King – here, the possibility of a prison sentence compared to insulting regular citizens which can only be punished by a fine. The Court has previously ruled, in Colombani and Others v. France, Artun and Güvener v. Turkey and Pakdemirli v. Turkey, that “providing increased protection by means of a special law on insults will not, as a rule, be in keeping with the spirit of the Convention”, in regards to foreign Heads of State and diplomats and a country’s own Heads of State (including Presidents). [para. 56] The Court held that the fact that the King plays a neutral role in political debate, has criminal immunity and inviolability, and acts as “a symbol of State unity” cannot shield him from all (political) criticism, especially when this criticism is uttered by people opposing the monarchical regime. [para. 56]

The Court held that Otegi’s statements targeted the monarch’s institutional role and did not concern the King’s private life and did not “amount to a gratuitous personal attack against him”. [para. 57]

With reference to its jurisprudence in Cumpănă and Mazăre v. Romania, the Court assessed the type of penalty imposed to sanction Otegi’s statements and noted that imposing a prison sentence “for an offense in the area of political speech” will only be compatible with Article 10 ECHR in exceptional circumstances, such as in the case of hate speech or incitement to violence.

Accordingly, the Court held that no element of the current case could justify the imposition of a one-year prison sentence, which would “inevitably have a chilling effect” on speech. [para. 60]

Spain’s intervention in Otegi’s right to freedom of expression was therefore declared disproportionate and the Court awarded Otegi 23,000 euros to compensate for the damage suffered by his Article 10 infringement.

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