In midst of national debate on limits of freedom of expression and laws that define and punish ir alleged excesses, European Court of Human Rights (ECHR) has tipped this Tuesday a strong tug of ears to Spain to contradict ir courts and To sentence that burning pictures of king is not a crime, but a form of freedom of political expression.More information
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"Freedom of expression extends to ' information ' and ' ideas ' that offend, collide or disturb," stresses Strasbourg in its forceful judgement. They are part of conditions of "pluralism, tolerance and breadth of sight without which re is no ' democratic society '".
The facts go back more than a decade ago. The plaintiffs, Enric Stern and Jaume Roura, are two Catalan independentists who in 2007 burned a large photo of Kings during a protest antimonárquica in Girona on eve of visit of King Juan Carlos to city. Stern sprayed photograph, placed upside down, with flammable liquid and Roura set fire to it with a torch, while y were jaleadosed by or protesters. A year later, national court sentenced m to a fine of 2,700 euros to circumvent prison for a crime of insult to crown, with warning that if y did not pay it would execute sentence to 15 months of prison that had requested prosecution. In 2015, Constitutional Court dismissed appeal of defendants-although it was a split decision-and indeed quoted Strasbourg, stating that Human Rights Tribunal believes it necessary to "sanction and even prevent all forms of expression To propagate, incite, promote or justify hatred based on intolerance. "
But in his judgement, Strasbourg, which considers "unanimously" that in this case re has been a "violation of article 10" of European Convention on Human Rights that defends freedom of expression, not only rejects this sanction and orders Spain to indemnify The plaintiffs with same amount y paid in fine, plus anor 9,000 euros in total for both expenses and fees.
Even more forceful is his argument about why freedom of expression has been violated in this case. In a five-point decision, seven judges who dealt with case, including Spaniard Luis López Guerra, consider that act of defendants was part of a "political, rar than personal, critique of institution of monarchy in general and Particular to Spanish monarchy as a nation. " In this sense, magistrates reject idea defended by Spanish justice that burning of photo constitutes a "personal attack" to King directed to "insult and denigrate his person", but y see it as "a denunciation of what king represents as chief and Símbo that of apparatus of State and of forces which, according to complainants, occupied Catalonia. " Something which, judges of Strasbourg conclude, "enters into sphere of political criticism or dissent" and refore "corresponds to expression of rejection of monarchy as an institution".
It is a question, says sentence, of "a provocative staging of those that are increasingly used to draw attention of media and that do not go beyond a recourse to a certain dose of provocation allowed to transmit a critical message from Angle of freedom of expression. "
Strasbourg also rejects that elements used in protest, such as fire or placement of burnt facedown photography, constitute an "act of hatred or incitement to violence". And remember that action "did not provoke violent behavior or disorders". In same vein, he finds it proved that Stern and Roura's intention "was not to incite anyone to commit acts of violence against King" and insists that "such an act should be interpreted as symbolic expression of dissatisfaction and protest."
"Even though ' staged act ' included burning of an image, it was a way of expressing an opinion in a debate on a matter of public interest, monarchical institution," Strasbourg concludes.
The ECHR also considers that penalty imposed on Stern and Roura, with threat of ending up in jail if y did not pay fine, constitutes "an interference" with freedom of expression that "was not provided against legitimate objective sought ( protection of Reputation or rights of ors) or necessary in a democratic society. "