Communicated on 16 January 2020
Published on 3 February 2020
THIRD SECTION
Application no. 74729/17
Miguel AYUSO TORRES
against Spain
lodged on 10 October 2017
SUBJECT MATTER OF THE CASE
The application concerns disciplinary proceedings opened against the applicant (a military officer) for statements in a television programme.
As a result of information published in media concerning the applicant, the relevant military authorities instituted disciplinary proceedings against the applicant for serious misconduct under section 8(32) of the Organic Law 8/1998 on the disciplinary regime of the armed forces. The applicant was alleged to have “manifestly and publicly expressed opinions against the Constitution” during his participation in a television programme. On 21 January 2014 the authorities found that the applicant was not guilty of serious misconduct. They concluded that although the applicant had publicly expressed opinions against the Constitution, he had not acted with the necessary intent. Accordingly, no sanction was imposed on the applicant. The decision was confirmed by the administrative authorities on appeal (decision of 19 February 2014).
The applicant applied to the Central Military Court for judicial review of the above-mentioned decisions. By a judgment of 3 February 2016, the court declared the applicant’s action inadmissible. It found that the applicant did not have locus standi on the basis that he had not been affected by the impugned administrative decisions. Later, the Supreme Court (Military Chamber) fully dismissed the applicant’s appeal (judgment no. 116/2016 of 11 October 2016) and the Constitutional Court declared the subsequent amparo appeal inadmissible (decision of 17 April 2017).
QUESTIONS TO THE PARTIES
1.1. Having regard to the fact that no sanction was imposed on the applicant for his statements, is the applicant’s complaint under Article 10 compatible ratione personae with the provisions of the Convention? In particular, has the applicant’s right to freedom of expression been affected by the decisions taken within the framework of the (disciplinary and judicial) proceedings?
1.2. If so, has there been an interference with the applicant’s freedom of expression? In the affirmative, has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention?
2.1. In view of the reservation made by Spain under Article 57 of the Convention in respect of the application of Articles 5 and 6 of the Convention to the extent that those provisions were incompatible with the legislative provisions concerning the disciplinary regime of the armed forces, is the applicant’s complaint under Article 6 § 1 of the Convention compatible ratione materiae with the provisions of the Convention (see Benavent Díaz v. Spain (dec.), no. 46479/10, 31 January 2017; Schädler‑Eberle v. Liechtenstein, no. 56422/09, § 59, 18 July 2013; and Dacosta Silva v. Spain, no. 69966/01, ECHR 2006‑XIII)?
2.2. If so, having regard to the decisions of the domestic courts to declare the applicant’s appeals inadmissible owing to lack of locus standi, did the applicant have a fair trial in accordance with Article 6 § 1 of the Convention? In particular, were the aforementioned judicial decisions arbitrary or manifestly unreasonable?
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