CASE OF AGUILERA JIMÉNEZ AND OTHERS v. SPAIN

THIRD SECTION

CASE OF AGUILERA JIMENEZ AND OTHERS v. SPAIN

(Applications nos. 28389/06, 28955/06, 28957/06, 28959/06, 28961/06 and 28964/06)

JUDGMENT

STRASBOURG 

8 December 2009

Referred to the Grand Chamber

10/05/2010

In the case of Aguilera Jimenez and Others v. Spain,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Registrar,

Having deliberated in private on 17 November 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in six applications (nos. 28389/06, 28955/06, 28957/06, 28959/06, 28961/06 and 28964/06) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Spanish nationals, Mr Jose Antonio Aguilera Jimenez, Mr J.-M. Palomo Sánchez, Mr F.-A. Fernández Olmo, Mr A. Alvarez Lecegui, Mr F. Beltrán Lafulla and Mr F. Blanco Balbas (“the applicants”), on 13 July 2006.

2. The applicants were represented by Mr L. García Quinteiro, a lawyer practising in Barcelona. The Spanish Government (“the Government”) were represented by their Agent, Mr M. I. Blasco Lozano, Head of the Legal Department for Human Rights, Ministry of Justice.

3. The applicants complained that they had been dismissed by way of reprisal for belonging to a trade union and on account of its demands, on the pretext of allegedly offensive content in the union’s news bulletin, whereas the impugned expressions had been used in a jocular spirit and not with any intent to insult. They relied on Articles 10 and 11 of the Convention.

4. On 11 December 2008 the President of the Third Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time, as allowed by Article 29 § 3 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants live in Barcelona. They were employed as delivery men by the company P., against which they brought several sets of proceedings in employment tribunals. In 2001 they set up the trade union N.A.A. to defend their interests and those of the other delivery staff, and sat on its executive committee.

6. The trade union published a monthly news bulletin. On the cover of the bulletin for April 2002 a cartoon with speech bubbles showed a caricature of the human resources manager, G., sitting behind a desk under which a person on all fours could be seen from behind, together with, to one side, A. and B., also employees of the company P., who were watching the scene while waiting to take their turn to satisfy the manager like their colleague. Inside the bulletin were two articles which denounced, in crude and vulgar terms, the fact that those two individuals had testified in favour of the company P. in proceedings that the applicants had brought against their employer. The bulletin was distributed among the workers and displayed on the notice board of the trade union N.A.A. that was located on the company’s premises.

7. On 3 June 2002 the company notified the applicants of their dismissal on grounds of serious misconduct.

8. The applicants challenged that decision before Employment Tribunal no. 17 of Barcelona, which, in a judgment of 8 November 2002, dismissed their claims and found that the dismissals were justified, in accordance with Article 54 §§ 1 et 2 (c) of the Labour Regulations. The tribunal took the view that the company’s decision to dismiss the applicants had been based on a genuine and serious cause, namely the publication and display on a notice board inside the company of a cartoon with speech bubbles and two articles which were offensive and impugned the dignity of the persons concerned. The first article entitled “Whose witnesses? Theirs, of course”, contained caricatures of A. and B., showing them gagged, and the text underneath read as follows:

“We knew who they were and how they behaved, but we didn’t know how far they were prepared to go in order to hold onto their seats and cushy jobs without doing anything.

As employees of P. we earn our living by selling goods in the street. A. and B. earn theirs by selling the workers in the courts. Not content with doing this simply by signing agreements that go against the collective interest, they’ve now gone a step further – they rob and steal with total impunity, in broad daylight, with the confidence of men who feel totally untouchable. They play at being gods.

... but they, the chairman and secretary of the staff representatives, agreed, just like guard-dogs, to roll over and frolic in return for a pat on the back by their master. ...”.

The tribunal noted that the text was a response to what had happened during proceedings brought by the applicants before Employment Tribunal no. 13 of Barcelona, in which A. and B. had appeared as witnesses against the applicants’ interests.

The second article, entitled “When you’ve rented out your arse you can’t shit when you please”, read as follows:

“If you belong to a works council and you have to sign agreements with your employers that will never be honoured, just to keep you quiet, and agree to changes that only benefit their cronies, and to pay-cuts and other sell-outs, then you’ve swapped your dignity for an armchair, [and] you have the dubious merit of achieving the same level of infamy as politicians and policemen. You see, you shut up and you shrewdly agree to all sorts of shenanigans. When you’ve rented out your arse, you can’t shit when you please.

If you’re a despicable ‘professional trade-unionist’ and you’ve thus sold your soul to the union, you’ll never have a surge of sincerity, because your status would be threatened. You say what the union tells you to say, and as the unions are ‘condoms’ on freedom, your lips are sealed just like your anal sphincter, because you’ve rented out your arse and you can’t shit when you please.

You can see the injustices meted out on your colleagues, the totally irrational way of dealing with their problems and the constant persecution to which they are subjected, but say nothing, for fear of drawing attention to yourself. Once upon a time, in the old days, you were a rebel who criticised the system – you would curse conventionalism and rant against the rules and regulations. You were caustic, dynamic, cutting, impulsive, jovial. But a couple of favours received have gradually cooled your fiery temperament, stoked your self-esteem and put the dampers on your feelings. From time to time you have a pang of nostalgia and you would like to fart, but your sphincter is sealed, because you’ve rented out your arse and can’t shit when you please.

You’re fed up with your work, pissed off, anxious, stressed and in despair, because of the longer working hours and the responsibilities, products, promotions and pressures. You could work anywhere, do anything without having to get up at the time others go to bed. You could break everything up, tear it to pieces, crush and demolish it all ... but your hands are tied by credits, IOUs and debts. You are crushed by your new SUV, your children’s after-school activities, and the twenty-five year mortgage on your semi-detached house. And you let yourself be humiliated, you swallow your pride, you shut up and you accept, because when you’ve rented out your arse, you can’t shit when you please”.

The news bulletin was distributed to staff and displayed on the trade union’s notice board on the company’s premises.

The tribunal observed at the outset that the cause of the dismissal was the content of the bulletin and not the applicants’ trade-union membership. As to the bulletin’s content, it took the view that the cartoon and speech bubbles on the cover, together with the articles inside, were offensive and exceeded the limits of freedom of expression and information, impugning the honour and dignity of the human resources manager, of two employees, and of the company itself. Lastly, it noted that the dismissal could not be declared null and void, since it was based on serious misconduct provided for by law, and found that the applicants’ fundamental rights had not been breached.

9. The applicants lodged an appeal against the decision. In a judgment of 7 May 2003 the Higher Court of Justice of Catalonia partly upheld the appeal in respect of two of the applicants, namely Mr Aguilera Jiménez and Mr Beltrán Lafulla. It noted that those two employees had been on temporary sick leave at the time of the incident on which the dismissal was based. Given that they had been absent from the company and that their direct participation in the distribution and publication of the bulletin could not be established, the Higher Court of Justice found that their dismissal had been unfair and ordered the employer either to reinstate them to their posts in the company under the same employment conditions as before, or to pay them appropriate compensation. It upheld the remainder of the judgment under appeal in respect of the other applicants.

10. The six applicants lodged an appeal on points of law, seeking harmonisation of the relevant case-law. In a decision of 11 March 2004 the Supreme Court dismissed their appeal on the ground that the decision produced for purposes of comparison was not pertinent.

11. Relying on Article 24 (right to a fair hearing) of the Constitution, and on Articles 20 and 28 taken together (freedom of expression and association), the applicants lodged an amparo appeal with the Constitutional Court. In a decision of 11 January 2006, notified on 13 January 2006, that court found the appeal inadmissible for lack of constitutional content. As regards the complaint concerning the right to freedom of association, it took the view that there was not enough evidence to show that the applicants’ dismissal had been an act of reprisal on the part of the company because of the proceedings they had brought against it. Similarly, it found that the applicants had not provided sufficient evidence to show that the company’s action was intended to restrict, hamper or prevent the exercise of their right to freedom of association. The applicants had simply expressed their disagreement with the decisions rendered by the courts below, which had found in reasoned decisions devoid of arbitrariness that they had committed the acts of which the company had accused them in their letters of dismissal.

12. As regards the alleged violation of their right to freedom of association, combined with their right to freedom of expression, the Constitutional Court first noted that the latter did not encompass any right to insult others. It pointed out in this connection that the Constitution did not prohibit the use of hurtful, embarrassing or scathing expressions in any circumstances. However, freedom of expression did not protect vexatious expressions which, regardless of their veracity, were offensive or ignominious and were not pertinent for the purpose of conveying the opinions or information in question. In the circumstances of the case, the Constitutional Court took the view that the applicants’ right to freedom of expression had not been breached, since the cartoons and expressions used by the applicants had been offensive and humiliating for the persons concerned and had impugned their honour and reputation. Moreover, those cartoons and expressions had not been a necessary contribution to the forming of an opinion on the facts that the applicants wished to denounce, and had not therefore been necessary for the exercise of freedom of expression in a trade-union context.

II. RELEVANT DOMESTIC LAW

13. The Constitution

Article 20

“1. The following rights shall be recognised and protected:

(a) the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, in writing or by any other means of reproduction;

...

(d) the right to receive and communicate true information by any means of dissemination. ...

2. The exercise of these rights may not be restricted by any prior censorship.

...

4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children.”

Article 28

“1. Everyone shall have the right to associate freely. Freedom of association shall include the right to form trade unions or to join a trade union of one’s choosing, and the right for trade unions to establish confederations and to set up or join international trade union organisations. No one shall be obliged to join a trade union.

...”

14. The Labour Regulations (approved by Royal Legislative Decree no. 1/1995 of 24 March 1995)

Article 54 – dismissal on disciplinary grounds

“1. The employer may decide to terminate a contract of employment by dismissing the employee for serious and negligent failure to perform his or her obligations.

2. Non-compliance with contractual obligations shall include:

...

(c) Verbal or physical attacks on the employer or persons working in the company, or members of their families living with them.”

Article 55

“Form and effects of disciplinary dismissal.

...

7. Justified dismissal shall entail the termination of the contract without any right of compensation ....”

THE LAW

15. The Court first finds that it is appropriate, in accordance with Rule 42 § 1 of the Rules of Court, to join the applications registered under numbers 28389/06, 28955/06, 28957/06, 28959/06, 28961/06 and 28964/06, given that the facts giving rise to the six cases are essentially the same and that all six applicants took part in the same proceedings before the domestic courts.

I. ADMISSIBILITY OF THE APPLICATIONS

16. The Court must first examine the question of the locus standi of the applicants J.-A. Aguilera Jiménez and F. Beltrán Lafulla.

17. The Court reiterates that the existence of a victim, that is to say, an individual applicant who is personally affected by an alleged violation of a Convention right, is indispensable for putting the protection mechanism of the Convention into motion, although this criterion cannot be applied in a rigid, mechanical and inflexible way throughout the whole proceedings (see Karner v. Austria, no. 40016/98, § 25, ECHR 2003‑IX).

18. The Court notes that in the present case the dismissals of Mr Aguilera Jiménez and Mr Beltrán Lafulla were declared unfair by the Higher Court of Justice of Barcelona, on appeal, since they had been on temporary sick leave at the time of the facts on which their dismissal was based. As the employer was ordered to reinstate them to their posts in the company or to pay them compensation, they cannot claim to be victims of the alleged violations. Their applications are therefore incompatible ratione personae with the provisions of the Convention, as far as they are concerned, within the meaning of Article 35 § 3.

19. As far as the other applicants are concerned, the Court finds that their applications are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It notes moreover that no other ground for declaring them inadmissible has been established and that they should therefore be declared admissible.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

20. The applicants claimed that they had been dismissed on account of the content of the news bulletin of April 2002 published by the executive committee of the trade union N.A.A. of which they were members. They argued that the offending cartoons and two articles had not overstepped the bounds of acceptable criticism under Article 10 of the Convention and that the expressions had been used in a jocular spirit and not with any intent to insult. Moreover, they had all been regarded as responsible for the expressions contained in the news bulletin, whereas the company had not verified the degree of participation or subjective responsibility of each one. They relied on Article 10 of the Convention, which reads as follows:

“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 ...

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 ... for the protection of health or morals, for the protection of the reputation or rights of others ...”

21. The Government disputed that position. They referred to the general principles of the Court’s case-law concerning the right to respect for freedom of expression and took the view that the freedom of expression secured by Article 10 was not unlimited. They argued that the offending expressions had not been uttered in the context of a rapid and spontaneous verbal exchange, but were written assertions of which the applicants had been fully aware. They took the view that the domestic courts had balanced the conflicting interests and had not found a violation of Article 10 of the Convention.

The Court’s assessment

1. General principles

22. The Court reiterates that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any section of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. (see, among other authorities, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999‑VIII, and Fuentes Bobo v. Spain, no. 39293/98, § 43, 29 February 2000). Whoever exercises his freedom of expression undertakes, in accordance with the express terms of paragraph 2, “duties and responsibilities”, whose scope will depend on his situation and the means he uses (see Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 26, ECHR 2007‑II).

23. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999‑I).

24. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Janowski, cited above). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).

2. Application of the above-mentioned principles to the present case

25. The Court first observes that Article 10 is not only binding in the relations between an employer and an employee when those relations are governed by public law but may also apply when they are governed by private law (see, mutatis mutandis, Schmidt and Dahlström v. Sweden, 6 February 1976, § 33, Series A no. 21). Moreover, in certain cases, the State has a positive obligation to protect the right to freedom of expression against interference even from private persons (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 55, Series A no. 44). Consequently, the Court takes the view that the impugned measure, namely the applicants’ dismissal, constituted interference with the exercise of their right to freedom of expression as protected by paragraph 1 of Article 10.

26. The Court finds that the interference was “prescribed by law”, since the impugned court decisions were taken under Article 54 §§ 1 and 2 (c) of the Labour Regulations and pursued a legitimate aim, “the protection of the reputation or rights of others”. It thus fulfilled two of the conditions that are required for the interference to be regarded as justified under paragraph 2 of Article 10.

27. It therefore remains for the Court to examine the third condition, namely that the interference must be “necessary in a democratic society”. The Court thus has the task of determining, in the light of the case as a whole, firstly whether the sanction imposed on the applicants met a “pressing social need” and was “proportionate to the legitimate aim pursued” and, secondly, whether the grounds given by the national authorities to justify the sanction were “relevant and sufficient” (see Fuentes Bobo, cited above, § 44).

28. In the present case the Court notes that the applicants were dismissed for publishing and displaying, on a notice board located on the company’s premises and used by the trade union to which they belonged, a bulletin containing a cartoon and two articles that were regarded as offensive and as impugning the honour of the persons concerned. The judge of the Barcelona Employment Tribunal no. 17 found that the cartoon and speech bubbles on the bulletin’s cover, together with the articles inside, had overstepped the bounds of freedom of expression and information, impugning the honour and dignity of the human resources manager, of two employees, and of the company itself. On appeal, the Higher Court of Justice of Catalonia found that the cartoons and impugned information were offensive and held that the dismissals had been compliant with Article 54 §§ 1 and 2 (c) of the Labour Regulations, save in respect of Mr Aguilera Jiménez et Mr Beltrán Lafulla. For the Constitutional Court, such expressions fell outside the protection of the right to freedom of expressions under Article 20 of the Constitution, which did not encompass any right to insult others. The cartoons and expressions used by the applicants had not been a necessary contribution to the forming of an opinion on the facts that they wished to denounce, nor to freedom of expression in the exercise of the right of association.

29. The Court notes that, to arrive at this conclusion, Employment Tribunal no. 17 of Barcelona thoroughly analysed the facts at issue and, in particular, the context in which the applicants had published the controversial news bulletin. It observes that the cartoons and the wording used in the bulletin did not constitute an instantaneous and rash reaction, as is the case with verbal exaggeration, but were expressed and published in a quite dispassionate and lucid manner.

30. The Court sees no reason to call into question the findings of the domestic courts, according to which the cartoon and the two impugned articles in the bulletin published and displayed by the applicants on the company’s premises had been offensive and likely to harm the reputation of others. The grounds given by the domestic courts could be reconciled with the legitimate aim of protecting the reputation of the individuals targeted in the cartoon and texts. In this connection, the Court observes that Article 10 of the Convention does not secure freedom of expression without any limitation. In the present case, it is thus necessary to ascertain only whether the sanction imposed on the applicants, namely their dismissal, was proportionate to the legitimate aim pursued and, accordingly, whether it was “necessary in a democratic society”.

31. In addressing that question the Court will particularly take account of the wording used in the cartoon and articles, the context in which they were produced and the circumstances of the case as a whole.

32. The Court first observes that the expressions at issue had arisen from a specific context: proceedings had been brought in employment tribunals by the applicants, who were members of a trade union, against their employer, in the course of which A. et B. had testified in favour of company P. and thus against the applicants. The Court takes the view in this connection that members of a trade union are entitled, and indeed have a duty, to present their demands to their employer for the purpose of improving the situation of staff in the company. Whilst their ideas, proposals and actions may be favourably received, they may also offend, shock or disturb. If a trade union did not have the possibility of freely expressing its ideas in this context, it would become meaningless and pointless. The Court reiterates, however, that the freedom of debate is undoubtedly not absolute in nature. In this connection, the freedom of expression enshrined in paragraph 1 of Article 10 encompasses duties and responsibilities. A Contracting State may make it subject to certain “restrictions” or “penalties”, but it is for the Court to give the final ruling on their compatibility with the freedom of expression enshrined in Article 10 (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59 (c), Series A no. 216). The Court observes that, in the present case, the applicants expressed themselves through cartoons and articles that were published in their trade-union news bulletin and displayed on the notice board provided by the employer. The cartoon at issue showed a caricature of the human resources manager, G., sitting behind a desk under which a person on all fours could be seen from behind, together with A. and B., who were watching the scene while waiting to take their turn to satisfy the manager. It contained sufficiently explicit speech bubbles. As to the two articles of which extracts have been reproduced (see paragraph 8, above), the Court takes the view that their content did not fall within the context of any public debate on matters of general interest, but related to issues that specifically concerned company P. That finding is confirmed by the gravity and general nature of the criticisms levelled by the applicants and by the tone chosen for that purpose.

33. It is true that Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed (see De Haes and Gijsels v. Belgium, 24 February 1997, § 48, Reports of Judgments and Decisions 1997‑I). That being said, account must be taken of the need to strike the right balance between the various interests involved. Because of their direct, continuous contact with the realities of the country, a State’s courts are in a better position than an international court to determine how, at a given time, the right balance can be struck. That is why they have a certain margin of appreciation in assessing the necessity of an interference in this area, although this margin is subject to European supervision as regards both the relevant rules and the decisions applying them (see Schöpfer v. Switzerland, 20 May 1998, § 33, Reports 1998‑III).

34. The Court observes that, given the circumstances of the case, the domestic courts took the view that the cartoon and some of the allegations contained in the articles from the offending bulletin constituted, by their gravity and tone, attacks of a personal, offensive, excessive and gratuitous nature that were certainly not necessary for the legitimate defence of the applicants’ interests.

35. In addition, unlike the expressions at issue in the Fuentes Bobo case, the Court notes that those used by the applicants were not uttered in the context of a rapid and spontaneous verbal exchange, but were made in writing, published and displayed publicly on the premises of company P. (see Fuentes Bobo, cited above, § 48).

36. In the present case, the Court notes that the Spanish courts balanced the conflicting interests, in the light of domestic law, and concluded that the applicants had transgressed the permissible limits of the right to criticise. The Court is of the view that the decisions given by the domestic courts cannot be regarded as unreasonable or, a fortiori, as arbitrary. Having regard to the foregoing considerations, the Court finds that the domestic authorities did not overstep their margin of appreciation in penalising the applicants.

37. Accordingly, there has been no violation of Article 10 of the Convention.

III. APPLICATION OF ARTICLE 11 OF THE CONVENTION

38. The applicants contended that they had been dismissed because they belonged to the trade union N.A.A., and claimed that the company had dismissed them as a reprisal against the union’s demands, using as a pretext the allegedly offensive content of the union’s news bulletin. They relied on Article 11 of the Convention, which reads as follows:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ... for the protection of health or morals or for the protection of the rights and freedoms of others ...”

39. Having regard to the Court’s finding concerning Article 10 (see paragraph 37 above) and the lack of any evidence in support of the applicants’ claim that their dismissal was an act of reprisal by their employer for their membership of the trade union N.A.A., the Court is of the opinion that no separate question arises under Article 11 of the Convention.

FOR THESE REASONS, THE COURT

1. Decides, unanimously, to join the six applications;

2. Declares, unanimously, the applications admissible in respect of the applicants Mr. J.-M. Palomo Sánchez, Mr F.-A. Fernández Olmo, Mr A. Alvarez Lecegui and Mr F. J.-M. Blanco Balbas, and inadmissible for the remainder;

3. Holds, by six votes to one, that there has been no violation of Article 10 of the Convention;

4. Holds, by six votes to one, that no separate question arises under Article 11 of the Convention.

Done in French, and notified in writing on 8 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago QuesadaJosep Casadevall
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Power is annexed to this judgment.

J.C.M.
S.Q.

DISSENTING OPINION OF JUDGE POWER

I voted against the majority with some doubt. However, in the final analysis, I could not overlook the fact that the case involved a dispute on the scope of the protection afforded under Article 10 and that the applicants, in publishing the offensive cartoon and articles, were acting in their capacity as trade union representatives in the aftermath of a contentious labour dispute. In such circumstances, the sanction imposed upon them, summary and permanent dismissal from their employment, warranted serious analysis from the point of view of proportionality.

Since freedom of expression constitutes one of the essential foundations of a democratic society, it is well established that it is applicable to information or ideas that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.[1] The Court’s limited task is to ensure that any interference in the right to freedom of expression is provided for by law, pursues a legitimate aim and is necessary in a democratic society.

The judgment, in my view, pays insufficient regard to the fact that at the time of the events in question the applicants were members of a recently formed trade union. Whilst obviously not in the same category as journalists who exercise important ‘public watchdog’ functions, trade unions, nevertheless, play an important role in voicing and defending matters of public interest in the areas of trade, labour and employment. The cartoon and articles, crude as they are, must be viewed in the context in which they were published, namely, in a trade union bulletin and by way of response to and commentary upon a serious labour dispute involving the employer and trade union members.

In Vereinigung Bildender Künstler v Austria, the Court found that Article 10 had been breached where the domestic courts had granted an injunction prohibiting the exhibition of a piece which depicted certain individuals in a somewhat outrageous manner, naked and involved in sexual activities.[2] Arguably, in that case, the image was even more offensive and shocking than the publications in the instant case. The Court, nevertheless, found that such portrayal amounted to a “caricature of the persons concerned” using satirical elements. It noted that “satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate.”[3] Noting that the penalty imposed was not limited in space or time, the Court found that the impact of the measure on the applicant association was disproportionate to the aim pursued and, therefore, constituted a violation of Article 10.

The applicants, in this case, also chose caricature and satire to convey their commentary, as union representatives, on what had transpired within a recent industrial dispute and, of course, this involved features of exaggeration and distortion of reality which aimed to provoke and agitate. For this, they were sacked, summarily, deprived of their livelihood and obliged to sustain all the adverse consequences that flow from dismissal from employment.

The Court has consistently held that a margin of appreciation which a State enjoys in assessing whether and to what extent interference is necessary goes hand in hand with European supervision covering both the legislation and the decisions applying it.[4] When carrying out that supervision, the Court must ascertain whether the measures taken at national level are justifiable in principle and are proportionate[5] and it must look at the impugned judicial decisions against the background of the case as a whole.

Given the background and context of this case as a whole, the level of “supervision” exercised by the majority is minimal in the extreme, deferring, effectively, to the decisions of the domestic authorities. Where the Court accepts that an impugned interference with freedom of expression is proportionate, such an assessment must involve some consideration of the necessity for such a measure. The threshold of the “necessity” test of interference with freedom of expression is not equivalent to nor does it have the latitude associated with such notions as “tolerable”, “acceptable” or “reasonable”. Necessity implies the existence of a “pressing social need”.[6] I find no consideration in the judgment as to what, if any, “pressing social need” existed which required the summary and permanent dismissal of the applicants, as distinct from, say, the imposition of some other form of penalty, such as, suspension, a fine or even a negotiated “exit strategy”.

One cannot and should not ignore the fact that the applicants were members of a recently formed trade union whose mandate was, presumably, to represent the views and protect the interests of its members. The publications were made within the context of an employment dispute. If, as is this case, those representatives were provocative and offensive in the manner in which they expressed themselves, whether in cartoon form or otherwise, such a choice, in my view, falls within the ambit of Article 10 and any interference with the right protected thereunder must be strictly necessary. To my mind and having regard to all the circumstances of the case, it has not been established that the applicants’ forfeiture of their jobs for having published the cartoon and commentary was “necessary” or otherwise proportionate.

Finally, it would have been preferable, to my mind, for the Court to consider whether the summary dismissal of the applicants constituted an unjustified interference with their rights under Article 11. In my view, their status as representatives of a recently formed trade union is of considerable significance. Having regard to the special importance of freedom of association and freedom of expression, which are closely linked in this instance, the Court should examine the severity of the disciplinary sanction imposed in the light of the case as a whole. The proportionality principle demands that a balance be struck between the requirements of purposes listed in Article 11 § 2 and those of the free expression of opinions by persons, such as the applicants, acting in a representative capacity. The pursuit of a just balance must not result in trade union representatives being discouraged, for fear of disciplinary sanctions, from making clear their opinions on contentious matters arising between employers and employees. The freedom to participate in an assembly or an association (including the right to form and join trade unions) is of such importance that it cannot be restricted in any way so long as the person concerned does not commit any reprehensible act on such occasion.[7] The “act” in question in this case, crude as it was, cannot, in my view, be regarded as being so reprehensible as to warrant the ultimate disciplinary sanction, namely, summary and permanent dismissal. Such a penalty was not, to my mind, compatible with the strict requirement of a “pressing social need” and, therefore, cannot be regarded as having been “necessary in a democratic society”.

[1]Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24.

[2]Vereinigung Bildender Künstler v. Austria, no. 68354/01, ECHR 2007‑II.

[3] At § 33.

[4]Groppera Radio AG and Others v. Switzerland, 28 March 1990, Series A no. 173; Markt Intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, Series A no. 165.

[5] Groppera Radio AG and Others v. Switzerland, § 72; see also Barfod v Denmark, 22 February 1989, Series A  no 149. 

[6]Lingens v. Austria, 8 July 1986, §§ 39-40, Series A no. 103; Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 50, Series A, no. 217.

[7] Ezelin v France, 26 April 1991, § 53, Series A no 202

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