Information Note on the Court’s case-law No. 139
March 2011
Otegi Mondragon v. Spain - 2034/07
Judgment 15.3.2011 [Section III]
Article 10
Article 10-1
Freedom of expression
Criminal conviction for insulting the King: violation
Facts – During a press conference, the applicant, as spokesperson for a Basque parliamentary group, commented on the recent closure of a Basque newspaper, the arrest of its main editors and their complaint of ill-treatment while in custody. Referring to the King of Spain’s visit to the Basque Country, he stated: “How can one be photographed today in Bilbao with the King of Spain, when [he] is the supreme head of the Spanish army, that is, the person who commands torturers, defends torture and imposes his monarchical regime on our people through torture and violence?” The applicant was subsequently sentenced to one year’s imprisonment for causing serious insult to the King. His appeals were unsuccessful.
Law – Article 10: The applicant’s remarks had been made in the context of a public debate of general interest. The margin of appreciation enjoyed by the authorities in assessing the need for the sanction imposed on him had therefore been particularly narrow. The domestic courts had considered that the applicant’s comments were value judgments rather than statements of fact. However, they had also held that the context in which those comments had been made could not justify their seriousness, given that the complaints of alleged torture had been dropped on the ground of insufficient evidence. In this connection, the Court noted that the phrases used could have been deemed to be part of a wider public debate on the potential responsibility of the State security forces in cases of ill-treatment. While it was true that the language used by the applicant could have been considered provocative, it was essential to bear in mind that, even if some of the words used in the applicant’s comments had been hostile in nature, there had been no incitement to violence and they had not amounted to hate speech. Furthermore, these had been oral statements made in the course of a press conference, which meant that the applicant had been unable to reformulate, rephrase or withdraw them before they were made public. Reiterating its case-law on the issue of over-protection of Heads of State in republican regimes, the Court considered that the relevant principles were also valid with regard to a monarchical system. The fact that the King remained neutral in political debate and his position as arbitrator and symbol of the State could not shield him from criticism in the performance of his official duties or as representative of the State which he symbolised, particularly from those who legitimately challenged that State’s constitutional structures, including its monarchical regime. Furthermore, the fact that the King was “not liable” under the Spanish Constitution, particularly with regard to criminal law, could not in itself prevent open debate on his possible institutional responsibility, albeit symbolic, within the bounds of respect for his reputation as an individual. It was to be noted that the impugned remarks had not concerned the King’s private life or his personal honour, given that they concerned only the King’s constitutional responsibility as Head and symbol of the State apparatus and the armed forces. Lastly, nothing in the circumstances of the instant case had justified the imposition of such a prison sentence. The applicant’s criminal conviction had been accompanied by a suspension of his right to vote for the duration of the sentence, even though he was a politician. Consequently, the applicant’s conviction and sentence had been disproportionate to the legitimate aim pursued, namely the protection of the King of Spain’s reputation, as guaranteed by the Spanish Constitution.
Conclusion: violation (unanimously).
Article 41: EUR 20,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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