Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
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The European Court of Human Rights (ECtHR) found that the Spanish courts had violated the freedom of expression of two citizens by imposing criminal sanctions for expressing political disapproval by burning a picture of the Spanish royals during an official visit. The ECtHR reasoned that the setting fire to a photograph of the royal couple during a demonstration had been part of a political critique of the institution of monarchy in general, and in particular of the Kingdom of Spain, and went no further than the use of a certain permissible degree of provocation in order to transmit a critical message in the framework of freedom of expression. Further, the ECtHR stated that the impugned act could not reasonably be construed as incitement to hatred or violence nor could it be considered as constituting hate speech. Moreover, the criminal penalty imposed on the applicants – a prison sentence, to be executed in the event of failure to pay the fine – amounted to an interference with freedom of expression which had been neither proportionate to the legitimate aim pursued nor necessary in a democratic society.
In September 2007, while the King was on an official visit to Girona, the applicants, Enric Stern Taulats and Jaume Roura Capellera, set fire, during a public demonstration, to a large photograph of the royal couple which they had placed upside-down. As a result, they were sentenced to 15 months’ imprisonment for insult to the Crown. The judge subsequently replaced that penalty with a fine of 2,700 euros each but ruled that, in the event of their failure to pay the fine in whole or in part, the applicants would have to serve the prison term.
The Audiencia Nacional (a special court based in Madrid that deals with specific subjects including crimes against the monarchy) upheld the judgment on December 5 2008 and when it became final the applicants paid the fine. However, the applicants then lodged an appeal directly to the Spanish Constitutional Court (recurso de amparo), claiming the violation of their right to freedom of expression as protected by the Spanish Constitution. On July 25, 2015, the Constitutional Court ruled that the act with which the applicants had been charged fell outside the scope of freedom of expression and freedom of opinion, because they had been guilty of incitement to hatred and violence not only against the King personally, but also against the institution which he represented and it was therefore a threat to democracy.
Relying on Article 10 the applicants complained to the ECtHR that the judgment finding
them guilty of insult to the Crown amounted to an unjustified interference with their right to freedom of expression.
The Court noted that the applicants’ conviction amounted to an interference with their right to freedom of expression, that the interference was prescribed by law and that it pursued a legitimate aim, namely the protection of the reputation or rights of others. As regards its necessity in a democratic society, the Court noted the following:
Firstly, the applicants’ act had been part of a political, rather than personal, critique of the
institution of monarchy in general, and in particular of the Kingdom of Spain as a nation. The impugned “staged event” had been part of a debate on issues of general interest, that is to say the independence of Catalonia, the monarchic structure of the State and a critique of the King as a symbol of the Spanish nation. It had not been a personal attack on the King of Spain geared to insulting and vilifying his person, but a denunciation of what the King represented as the Head and the symbol of the State apparatus and the forces which, according to the applicants, had occupied Catalonia – which fell within the sphere of political criticism or dissidence and corresponded to the expression of rejection of the monarchy as an institution.
Secondly, the ECtHR disagreed with the Constitutional Court that their expression amounted to hate speech and incitement to violence. Instead, it considered that the applicants had used symbolical elements clearly and obviously linked to their practical political criticism of the Spanish State and its monarchical form. It said that the act had been one of the provocative “events” which were increasingly being staged to attract media attention and which merely used a certain permissible degree of provocation to transmit a critical message in the context of freedom of expression.
Thirdly, the Court said that the applicants’ intention had not been to incite anyone to commit acts of violence against the King, and an act of this type should be interpreted as the symbolic expression of dissatisfaction and protest. Even though the performance involved setting fire to an image, it was a means of expressing an opinion in a debate on a public-interest issue, namely the monarchy institution. The Court reiterated in that context that freedom of expression extended to “information” and “ideas” that offended, shocked or disturbed: such were the demands of pluralism, tolerance and broad-mindedness, without which there was no “democratic society”.
Fourthly, the Court was not convinced that the impugned act could reasonably be construed as incitement to hatred or violence. Nor could it be considered as constituting hate speech.
Fifthly, the criminal penalty imposed on the applicants – a prison sentence, to be executed in the event of failure to pay the fine – amounted to an interference with freedom of expression which had been neither proportionate to the legitimate aim pursued nor necessary in a democratic society.
The Court therefore found a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression by reiterating that political speech enjoys broad protection.
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