Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The European Court of Human Rights unanimously found a violation of an activist’s freedom of expression after the national authorities found him guilty of slandering police for alleged torture. The case concerned Toranzo Gomez, whom the police attempted to forcibly remove from a building he and another protester where occupying. Although Toranzo Gomez voluntarily ended the protest, he was arrested, and subsequently claimed during a press conference that he was tortured physically and emotionally by the police and fire service. The Court found that penalizing Toranzo Gomez for using the word “torture,” beyond the confines of its legal definition, was a disproportionate restriction on his freedom of expression, and that the penalties could have a chilling affect on criticism of public authorities. The Court concluded that the national courts failed to properly balance the relevant rights, the criminal sanctions were not justified and hence the interference was not necessary in a democratic society.
The applicant, Agustin Toranzo Gomez, is an activist who participated in an occupation of the Casas Viejas Social Center in Seville. He was born in 1970 and resides in Seville.
At the request of the building owners, a first instance court ordered the occupiers to vacate the property by 29 November 2007. On the date they were to vacate, the occupiers staged a protest. The applicant along with another protester attached their arms to a pipe in the floor of the building so they could not leave and claimed they were not able to release themselves. Police and the fire service attempted to forcibly remove the two protesters by tying rope around their waists and pulling them loose from the pipe, but failed. The police then immobilized them with rope to prevent them from endangering themselves and doing further damage to the building. By 8:30 pm on 30 November, both the protesters asked the police to untie them so they could voluntarily release themselves and end the protest.
Immediately upon release from the building, they were arrested and then brought for a medical evaluation. The doctors reported that both Toranzo Gomez and the other protester R.D.P. complained of wrist pain but found no evidence of serious injury. Their report further stated “[v]isual inspection, palpitation and manipulation of limbs and other body areas rule out the possibility of physical injuries compatible with trauma or exogenous violence.” [para. 16]
On 1 December 2007 Toranzo Gomez participated in a press conference about the protest during which he claimed that he was tortured physically and emotionally by the police and fire service. He explained that the way he was bound by the police caused intense pain, even if it did not leave marks. He further claimed the fire service took photos of the police tying them up as if they were “prizes” [para. 17] The psychological torture was allegedly perpetrated by the fire service who told them that that they would not make it out alive, might be buried in rubble by a bulldozer working above them, might suffocate due to lack of oxygen, and that the police were considering releasing rats into the area or gas into the ventilation system.
Pursuant to Toranzo Gomez’s statements at the press conference, the public prosecutor initiated an investigation at the behest of the Government of Andalusia. On 6 July 2011, Toranzo Gomez was criminally convicted of slander, fined and forced to pay damages of EUR 1,200 to the police officers. He was also ordered to pay to have the court judgment printed by the media organization which participated in the press conference. In the judgment the Court found that the authorities had acted properly and proportionately in their efforts to convince the protesters to release themselves voluntarily, and therefore dismissed the claim that they had been tortured as untrue. Further, the actions described by Toranzo Gomez could not be considered torture as defined under Article 174 of the Spanish Criminal Code. The Court recognized Toranzo Gomez’s fundamental right to freedom of speech, but noted that it was not absolute in “its abstract concept or in its practical execution,” and in the present case “the applicant [had] exceeded the bounds of his right to freedom of speech…by violating other people’s rights.” [para. 23] The damage to the reputations of the police was based on personally identifiable photos accompanying media reports which linked them to accusations of torture.
On appeal, the Seville Audiencia Provincial ruled partially in favor of Toranzo Gomez and reduced his fine, but concluded that Toranzo Gomez was aware that his accusations were false and that his statements were a “conscious, disproportionate, unnecessary and unjustified act of accusing someone of having committed a crime which [had gone] beyond the legitimate criticism of a police action…” [para. 6]
Toranzo Gomez lodged and amparo appeal (remedy for the protection of individual or constitutional rights) with the Constitutional Court. He argued that his use of the word torture was colloquial to mean any form of mistreatment but also fell under the definition by the Royal Academy of Spanish Language which includes treatment that causes “serious pain or suffering, or the thing that produces it.” He further argued that limiting his use of the word to describes actions based on the strict legal definition in the Criminal Code, would constitute an “excessive restriction” on his right to freedom of expression on matters of public concern, namely police force used in the line of duty. The Constitutional Court dismissed the appeal on the grounds that Toranzo Gomez failed to establish that the issues in his case were of “special constitutional relevance.”
The case was later brought before the European Court of Human Rights, which unanimously found a violation of the applicant’s freedom of expression.
The Court began by establishing that there had been an interference with the applicants freedom of expression by a public authority, that is was provided by law under Articles 205 and 206 of the Spanish Criminal Code, and that it served the legitimate aim of protecting the rights of others.
The Court next turned to whether the interference was necessary in a democratic society. The court reviewed established case law in Perincek v. Switzerland (see also Mouvement raëlien suisse v. Switzerland) and Animal Defenders International v. the United Kingdom to identify the following principles for assessing the necessity of the restriction in the present case:
The Court recalled the following principles for balancing Article 10 (Freedom of Expression) and Article 8 (Right to Privacy) of the Convention.
The primary issue before the Court was whether Toranzo Gomez’s statements are protected under freedom of expression standards.
First, the court examined the nature of the applicant’s statement. The Court considered that even if some of Toranzo Gomez’s statements about his treatment were exaggerations, and he was in the situation by his own volition, he no doubt did experience “distress, fear, and mental as well as physical suffering.” [para. 55]
Second, the Court noted that the applicant’s statements should be examined in context. For the Court his statements were made in “good faith” as part of a debate on a matter of public interest. It clarified that Toranzo Gomez’s statements did not criticize the police personally, but rather their behavior while exercising their official duties, which is in the public interest. His accounting of the events was also detailed, corresponded to the facts outlined in the judgments by the national courts, and hence was sufficiently based in fact. The Court further found that Toranzo Gomez used the word “torture” colloquially to describe what he “considered to be an excessive and disproportionate use of force by the police.” As such, they constituted a value judgment, which is not subject to proof.
Third, the Court examined the extent to which the individual policemen and the firemen were affected by Toranzo Gomez’s statements. The Court pointed out that neither the national courts, nor the Government, documented any evidence of “negative consequences” for the individual firemen and policemen based on Toranzo Gomez’s allegations. The Court considered it “essential” for the national authorities to first evaluate whether Toranzo Gomez’s comments “advocated the use of violence,” and whether other remedies (other means to reply to the allegations) could have been employed before bringing criminal proceedings. [para. 60] The Court rejected the Government’s comparison of the present case to that of Cumpǎnǎ and Mazǎre on the grounds that the veracity of Toranzo Gomez’s statements were not questioned, only whether his use of the word torture conformed with the Spanish penal code – whereas Cumpǎnǎ concerned false statements made by the applicants.
Forth, the Court analyzed the proportionality of the interference. It stated that the nature and severity of the penalty imposed are factors that need to be considered when analyzing the proportionality of the interference. The Court determined the criminal sanctions requiring the payment of damages to the police, the imposition of a daily fine over the course of a year, the threatened prison sentence if he did not pay, as well as the ordering of the publication of the court ruling at Toranzo Gomez’s own expense, could have a “chilling effect” on his freedom of expression by discouraging him from criticizing public officials. [para. 63]
Fifth, the Court stated that penalizing Toranzo Gomez for using the word “torture,” beyond the confines of its legal definition, was a disproportionate restriction on his freedom of expression to describe the mistreatment he experienced at the hands of public authorities.
The Court concluded that the national courts failed to properly balance the relevant rights and related interests, the sanctions were not justified and hence the interference was not necessary in a democratic society. Therefore, there had been a violation of Article 10.
The respondent State was ordered to pay Toranzo Gomez EUR 1,200 in respect of pecuniary damages to reimburse Toranzo Gomez for what he paid the Police in damages; EUR 4,000 in respect of non-pecuniary damages; and EUR 3,025 in respect of costs and expenses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by finding that Gomez could not be held criminally liable for using the word torture colloquially in his criticism of police actions. The decision also called on national authorities to explore the least restrictive, yet effective, remedies before bringing criminal proceedings.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Torture is committed by a public authority or official who, in abuse of office, and in order to obtain a confession or information from a person, or to punish him or her for any act he or she may have committed, or is suspected of having committed, or for any reason based on any kind of discrimination, subjects that person to conditions or procedures that, owing to their nature, duration or other circumstances, cause him or her physical or mental suffering, suppression of or decrease in his or her powers of cognisance, discernment or decision-making, or that in any other way attack his or her honour. Those found guilty of torture shall be punished with a sentence of imprisonment of from two to six years if the offence is serious, and of imprisonment of from one to three years if it is not. In addition to the penalties stated, in all cases the punishment of absolute disqualification from office shall be imposed, for from eight to twelve years.
“Slander involves accusing another person of a felony while knowing it is false or recklessly disregarding the truth”.
“Slander shall be punished with imprisonment of six months to two years or day fines of twelve to twenty-four months, if propagated with publicity and, in other cases, by day fines of from six to twelve months”.
Case significance refers to how influential the case is and how its significance changes over time.
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