In the case
of Castells v.
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)** and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr Thór Viljhálmsson,
Mr R. Macdonald,
Mr J. De Meyer,
Mr S.K. Martens,
Mrs E. Palm,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr J.A. Carrillo Salcedo, ad hoc Judge,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Having deliberated in private on
Delivers the following judgment, which was adopted on the last-mentioned date:
· The case is numbered 2/1991/254/325. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
1. The case was referred
to the Court by the European Commission of Human Rights (“the Commission”) and
by the Government of the
The Commission’s request referred to Articles 44 and
48 (art. 44, art. 48) and to the declaration whereby
2. In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and sought leave, as a lawyer, to present his own case, assisted by two Spanish fellow lawyers (Rule 30 para. 1).
The President granted this request on
3. The Chamber to be
constituted included ex officio Mr J.M. Morenilla, the elected judge of Spanish nationality (Article
43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On
By a letter to the President of 15 March, Mr Morenilla had declared his
intention of withdrawing from the case pursuant to Rule 24 para.
2 because he had represented the Spanish Government before the Commission as
Agent. On 26 April the Government notified
the Registrar that Mr Juan Antonio Carrillo Salcedo, professor at
Ryssdal assumed the office of President of the
Chamber (Rule 21 para. 5) and, through the Registrar,
consulted the Agent of the Government, the Delegate of the Commission and the applicant
on the organisation of the procedure (Rules 37 para. 1 and 38).
Pursuant to the President’s orders and instructions, the Registrar received
the memorials of the Government and the applicant on 29 July and
5. In accordance with
the President’s decision, the hearing took place in public in the
There appeared before the Court:
(a) for the Government
Mr J. Borrego Borrego, Head of the Legal Department
for Human Rights, Ministry of Justice, Agent, Mr J.M. Villar Uribarri, Ministry of Justice, Counsel;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicant
Mr M. Castells, abogado, applicant, Mr J.M. Montero, abogado, Mr E. Villa, abogado, Counsel, Mr J. Vervaele, Professor, Mr D. Korff, assistants.
The Court heard addresses by Mr Borrego Borrego for the Government, by Mr Loucaides for the Commission and, for the applicant, by Mr Castells himself, by Mr Montero, by Mr Villa and by Mr Vervaele, as well as their replies to its questions and to the question of a judge.
Miguel Castells, a Spanish national, resides at
A. The particular circumstances of the case
1. The disputed article
7. In the week of 4 to 11 June 1979, the weekly magazine “Punto y Hora de Euskalherria” published an article entitled Insultante Impunidad (Outrageous Impunity) and signed by the applicant. The article read as follows:
“In a few days, at the San Fermín
holiday, a year will have gone by since the murders of Germán
Francisco Aznar Clemente, Pedro María Martínez Ocio, Romualdo Barroso Chaparro, Juan José Castillo and Bienvenido
Pereda Moral, on
And there remain the hundreds of cases, for there are hundreds
of them, in which people burst in, pistols at the ready, to the bars of the
villages and the suburbs (
The perpetrators of these crimes act, continue to work and remain in posts of responsibility, with total impunity. No warrant has been issued for their arrest. The description of the persons who carried out these acts has been neither drawn up or published; nor have there been any lists of suspects in the newspapers, or photokit pictures, and, far less, rewardsoffered to the public, or arrests, or inspections or searches of their homes. The public’s help has not been sought through the media, as has happened in other cases. Indeed it is significant that such help is not even accepted in connection with these crimes. No link has been established, there have been no official communiqués full of explicit accusations and reprobation in the press, as in other cases.
The right-wing, who are in power, have all the means at their disposal (police, courts and prisons) to seek out and punish the perpetrators of so many crimes. But don’t worry, the right will not seek itself out.
Extreme right-wing organisations? Before Franco’s death no one in the Basque Country thought that it was possible to secure the arrest or conviction for “unlawful association” of a single member, and far less one of the leaders, of the “Triple A”, of the “Batallón Vasco-Español”, of the “Batallón Guezalaga”, of the ATE, of the Adolf Hitler commando, of the Francisco Franco commando, of the Mussolini commando, of the New Order, of Omega, of the “Movimiento Social Español”, of “Acción Nacional Española” or of the “Guerrilleros de Cristo Rey”. No one can believe it now either.
“ETA” members held as prisoners? Hundreds of them have been to prison. Persons suspected of being members of “ETA”? Thousands of them have been detained in police stations. Sympathisers? One could go on with the list for ever. Yet not a single leader or member of the Triple A has been bothered.
Those responsible for public order and criminal prosecutions are the same today as they were before. And here in the Basque Country nothing has changed as far as impunity and questions of liability are concerned.
The period when Ibanez Freire was Director General of the Civil Guard, and Fraga was Minister of the Interior, was also a time when there was a great increase in so-called extreme right-wing activities in the Basque Country. The same phenomenon, the same coincidences are recurring now.
The increase in the activities of groups free to act as they will is generally accompanied in the Basque Country by an increase in the strength of the security forces.
These commandos, because we have to call them something, seem totally at home in the Basque Country, in the middle of a community completely hostile to them. This is too inexplicable for there not to be an obvious explanation. They have precise information to carry out their attacks, often more detailed than that available to local people.
They have substantial files which are kept up to date.
They have a considerable supply of weapons and of money. They have unlimited material and resources and operate with complete impunity. Considering the timing of their operations and the conditions in which they are carried out it can be said that they are guaranteed legal immunity in advance. Forbidding people to see this is futile.
This is important to the people. In the Basque Country it is more important than all the provisional schemes for self-government, democratic consensus and other meaningless or abstract nonsense, because it is a visible, tangible reality which confronts people on a daily basis.
Frankly, I do not believe that the fascist associations which I cited earlier have any independent existence, outside the State apparatus. In other words I do not believe that they actually exist. Despite all these different badges, it is always the same people.
Behind these acts there can only be the Government, the party of the Government and their personnel. We know that they are increasingly going to use as a political instrument the ruthless hunting down of Basque dissidents and their physical elimination. If they want to be so lacking in a sense of political vision that’s their problem! But for the sake of the next victim from our people, those responsible must be identified right away with maximum publicity.”
2. The criminal proceedings against the applicant
(a) The judicial investigation
After several interlocutory applications, including
one which resulted in a decision of the
On 4 May 1983 the
11. In the meantime
the investigation of the case had progressed.
In their memorial (conclusiones
12. By decision (Auto) of 19 May 1982, the Supreme Court refused to admit the majority of the evidence put forward by the defence, on the ground that it was intended to show the truth of the information disseminated.
There were divergences in academic opinion and even in its own case-law as to whether the defence of truth (exceptio veritatis) could be pleaded in respect of insults directed at the State institutions, but the reforms of the Criminal Code then under way clarified the question: those institutions fell outside the scope of that defence and Article 461 of the Criminal Code (see paragraph 21 below) authorised it only where civil servants were involved. The evidence which the defence proposed to adduce was not therefore admissible in the proceedings pending, without prejudice to the possibility available to the accused of instituting criminal proceedings as he considered fit.
filed an appeal (recurso de súplica),
The applicant then filed an appeal (amparo) in the
(b) The trial
13. The Criminal
Division of the Supreme Court held a hearing on
It found in the first place, with regard to the objective element of the offence, that the expressions used in the article were sufficiently strong to damage the reputation of the injured parties and to reveal an attitude of contempt. As far as the subjective element was concerned, it considered that, as a senator, Mr Castells had available to him very obvious means of expression, provided for in the Assembly’s rules of procedure, through which to carry out his duties of monitoring and criticising the Government’s activities; as he had failed to use these means, he could not claim to have acted on behalf of his electorate. The defence’s second argument, based on the aim of political criticism (animus criticandi), did not remove its defamatory purpose (animus injuriandi), but reduced the importance thereof. In the case under examination, the insults proffered with the aim of political criticism had exceeded the permissible limits of such criticism and attacked the Government’s honour. It was therefore preferable to apply Article 162 of the Criminal Code, which provided for the offence of proffering less serious insults against the Government, rather than Article 161. On the question of the constitutional right to freedom of expression (Article 20 of the Constitution; see paragraph 19 below) there were limits to that right, in particular in relation to the right to honour and to a private life and the right to control use of one’s likeness. Furthermore, the fact that the insult appeared in a press article suggested that it was the fruit of a more complicated intellectual process and a degree of reasoning which made it more clear and precise.
Finally, the Supreme Court confirmed its decision of
The applicant again indicated in the Supreme Court his
intention of filing an appeal (amparo) against the
judgment, relying inter alia on Articles 14, 20, 23
and 24 of the Constitution. He lodged
his appeal on
14. On 6 December
1983 the Supreme Court, having regard to the circumstances of the case, stayed
for two years the enforcement of the prison sentence (Article 93 of the
Criminal Code), but left in place the accessory penalty. The enforcement of the latter measure was
nevertheless stayed by the
3. The appeal (amparo) to the
15. In his appeal (amparo) of
He maintained further that the court had violated the principle of the presumption of innocence by refusing to allow him to adduce evidence. He considered it contrary to the most elementary rules of justice to convict someone - and in this case a senator - for making statements which were accurate and sufficiently important for it to be necessary to bring them to the attention of the community as a matter of urgency and in detail, without having allowed him to establish their truth.
He alleged, in addition, a breach of the principle of equality before the law (Article 14 of the Constitution), taken alone or in conjunction with the right to freedom of expression (Article 20), as other persons had published similar articles without encountering difficulties. Furthermore, he claimed that he had been the victim of a violation of his right to formulate political criticism, which he argued was inherent in Article 23 as it applied to him in his capacity as a senator. According to him, that provision, which guarantees the right to participate in public affairs, entitled him to carry out his parliamentary duties of scrutiny through any organ or means generally available.
The applicant made a further reference to Article 20 of the Constitution in the summary of his complaints (suplico).
16. In his observations
For his part, Mr Castells, by a letter of
Constitutional Court dismissed the appeal on
In summarising the applicant’s complaints at point 2 of the “As to the Law” part of its judgment, it took together, like the public prosecutor, those relating to Articles 14 and 23, without referring to Article 20: alleged violation of the right to equality before the law, guaranteed under Article 14 taken alone or in conjunction with Article 23, inasmuch as the contested decision restricted the powers of monitoring, scrutiny and criticism of a senator.
At point 6 it stated that parliamentary privileges were to be interpreted strictly as otherwise they could become instruments for infringing the rights of others; they lapsed when their holder had acted as a mere citizen, even in his capacity as a politician.
At points 9 and 10 it considered the central issue: the right to rely on relevant evidence in presenting the defence case, and in particular to plead the defence of truth in respect of an offence of the type in question. The court noted in this connection:
“In order to assess whether evidence which it is sought to adduce is relevant, it is necessary to establish a link between that evidence and the thema decidendi, which must first be determined on the basis of the parties’ allegations. Except in the case of facts which are manifest or common knowledge, the court must not intervene in this regard, otherwise it will prejudge the merits, if only in part ... . It is preferable for the courts to avoid [such a preliminary assessment]; it does not however in itself infringe constitutional rights provided that the other defence rights are respected. Even though in the present case the court ought perhaps not to have anticipated its opinion on the defence of truth when assessing the relevance of the evidence, [that irregularity] therefore infringes the constitutional right to use relevant evidence - particularly where as here the decision is taken at a single level of jurisdiction - only if there has been a breach of a substantive right in issue.
Article 161 of the Criminal Code had given rise to criticism among academic writers because it restricted the freedom of expression. In any event, it should be read in conjunction with Article 20 which guaranteed that freedom. In this connection it had to be accepted that criminal legislation could constitute an adequate means of regulating the exercise of fundamental rights provided that it respected the essential content of the right in question. The limits of the freedoms of information and of opinion were beyond question to be found in the area of State security, which could be jeopardised by attempts to discredit democratic institutions. In conclusion the question whether the defence of truth was or was not admissible in this field was purely one of statutory interpretation and the specific application of Article 161 in the case under review was a matter falling within the exclusive jurisdiction of the Supreme Court.
B. Relevant legislation
1. Constitution of 1978
19. The relevant articles of the Constitution provide as follows:
“All Spanish citizens are equal before the law. Any discrimination based on birth, race, sex, religion, opinion or any other condition or personal or social circumstances shall be prohibited.”
“1. The right to honour, to a private life and to a family life and the right to control use of one’s likeness shall be protected.
“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. The right to invoke the conscience clause and that of professional confidentiality shall be governed by statute.
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 Title, 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.”
“1. Citizens shall have the right to participate in public life directly or through their representatives freely elected at periodically held elections by universal suffrage.
2. The Criminal Code
Institutional Act 8/1983 of
“The following shall be liable to long-term prison sentences [from six years and a day to twelve years - Article 30 of the Criminal Code]:
1. Those who seriously insult, falsely accuse or threaten ... the Government ...;
“When the insult or threat referred to in the preceding Article is not serious, it shall be punishable by a short-term prison sentence [from six months and a day to six years - Article 30 of the Criminal Code].”
These provisions appear in a separate chapter of the Criminal
Code. The chapter in question is based
on the principle of authority (decision of the Supreme Court of
21. Title X of Book II of the Criminal Code defines the offences of proffering insults and making false accusations. The latter consists of accusing a person wrongly of an offence coming within the category of those which have to be prosecuted even without a complaint (Article 453 of the Criminal Code). On the other hand, an insult is any expression or action which discredits a person or exposes him to contempt, in particular by accusing him of an offence of the kind which may be prosecuted only if a complaint is laid (Articles 457 and 458 of the Criminal Code). The practical importance of the distinction is that the defence of truth is admissible for the offence of false accusation (Article 456) but not for the offence of proffering insults, except where the insults are directed against civil servants in respect of acts relating to the performance of their duties (Article 461 of the Criminal Code).
By the judgment of 31 October 1983 the Supreme Court specified that the defence of truth could not be pleaded in connection with the offence of insulting one of the senior institutions of the State: in the first place no official as such was concerned and, secondly, the institutions in question enjoyed extra protection in this field under the criminal law (see paragraphs 12 and 13 above).
22. In his
By a partial decision of
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
23. Mr Castells claimed to be a victim of a violation of his right to freedom of expression as guaranteed under Article 10 (art. 10) of the Convention, which is worded 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 and regardless of frontiers. ...
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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government contested this assertion, whereas the Commission agreed with it.
A. The Government’s preliminary objection
24. The Government
contended, as they had done before the Commission, that the applicant had
failed to exhaust his domestic remedies (Article 26 of the Convention) (art.
26). Probably “for tactical reasons”, he
had not specifically raised in the
25. In reply the
applicant maintained that he had expressly invoked Article 20 of the
Constitution in the
26. While expressing its agreement with the applicant, the Commission primarily invited the Court to find that it lacked jurisdiction to entertain the objection.
27. On this point
the Court confines itself to referring to its consistent case-law, confirmed
most recently in its B. v.
As regards the merits of the submission, it observes that Article 26 (art. 26) must be applied “with some degree of flexibility and without excessive formalism”; it is sufficient that “the complaints intended to be made subsequently before the Convention organs” should have been raised “at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law” (see the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 26, para. 72, and the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, para. 34).
28. The applicant relied on Article 10 (art. 10) of the Convention in two respects: he had, he claimed, been prosecuted and convicted for making statements which were true, but whose accuracy he had been prevented from establishing; in addition, the contested article came within the sphere of the political criticism which it was the duty of any member of parliament to engage in.
29. It appears that
Mr Castells had raised both
of these points in the Supreme Court.
The judgment of
30. The submissions
in support of the amparo appeal of
While basing his case on a narrower provision, Article
23 of the Constitution, the applicant claimed the right, in his capacity as a
senator, to criticise the Government’s action, a right
which is manifestly inherent in the freedom of expression in the specific case
of elected representatives. Moreover the
The applicant also invoked both his right to be presumed innocent and his right to adduce evidence capable of establishing the accuracy of his statements. In so doing, he was formulating a complaint which was plainly linked to the alleged violation of Article 10 (art. 10) of the Convention. Indeed that was how the Constitutional Court construed the complaint; it joined the question of the relevance of the evidence to that of the merits of the case, namely the offence provided for in Article 161 of the Criminal Code, whose compatibility with the freedom of expression it examined (points 9 and 10 of the “As to the Law” part of the judgment of 10 April 1985; see paragraph 17 above).
31. The Court notes
finally, like the Commission, that Mr
Castells cited Article 20 of the Constitution both in
his notice of the amparo appeal, filed in the Supreme
Court, and in the suplico of his application of
No doubt the reason why the appeal failed in this
respect is to be found in the limits which at the time the
the Court considers that the applicant did invoke before the
B. Merits of the complaint
33. In Mr Castells’s submission, the criminal proceedings brought against him, and his subsequent conviction for insulting the Government, interfered with his freedom of expression, in particular because he was not allowed to establish the truth of the statements contained in his article.
34. The restrictions and penalties of which he complained are undeniably an “interference” with the exercise of the freedom in question. For such an interference to avoid infringing Article 10 (art. 10), it must be “prescribed by law”, carried out in pursuit of one or more of the legitimate aims set out in Article 10 para. 2 (art. 10-2) and “necessary in a democratic society” in order to attain such an aim or aims.
1. “Prescribed by law”
35. There can be no
doubt that the contested prosecution had a legal basis, namely Articles 161 and
162 of the Criminal Code. The applicant
did not dispute this, but he alleged that he could not have expected that his defence of truth would be held to be inadmissible, in
particular following the adoption of the 1978 Constitution. He maintained that, until
36. In the Government’s contention, on the other hand, it is clear from the Spanish legislation, and in particular from Article 461 of the Criminal Code, that in the field in question the defence of truth is admissible only where the insults are directed against civil servants in the performance of their duties; neither before nor after 1978 had the Supreme Court ever allowed the exceptio veritatis for insults which were not directed against individuals. Mr Castells, however, had accused the Government as a whole.
37. In the light of
the wording of Article 461 of the Criminal Code, the Court considers this
interpretation to be reasonable. There
was apparently no precedent - hence the hesitation shown by the Supreme Court
in its decision of 19 May 1982 (see paragraph 12 above) -, but that is
immaterial here: it was a text which covered in a general fashion several
possible types of insult and which had inevitably to be capable of being brought into play in new situations; the
above-mentioned decision confined itself to applying it to different
circumstances (see, mutatis mutandis, the Observer and Guardian v. the
The Court therefore finds, like the Commission, that the rules governing the contested interference were sufficiently foreseeable for the purposes of Article 10 para. 2 (art. 10-2) of the Convention.
2. Was the aim pursued legitimate?
38. According to
the applicant, neither the charge laid against him nor
his subsequent conviction pursued a legitimate aim under paragraph 2 of Article
10 (art. 10-2). The acts
of which he was accused, as the Supreme Court itself admitted, had not
engendered any alarm (see paragraph 9 above); in addition, it appeared from the
39. However, in its
It may therefore be said, and this conforms to the
view held by the Government and the Commission, that
in the circumstances obtaining in
3. Necessity of the interference
40. Mr Castells noted his agreement with the Commission and emphasised the crucial importance of freedom of expression for an elected representative, as the spokesman for the opinions and anxieties of his electorate. In addition, that freedom required extra guarantees when the discussion related to a matter of public interest. This had indeed been the case in this instance; the contested article was part of a wide debate on the climate of insecurity which had prevailed in the Basque Country since 1977. The applicant’s conviction had been intended to protect the authorities against the attacks of the opposition rather than the Government against unjustified and defamatory accusations; although embarrassing for the Government, the revelation of the facts in question had served the public interest.
41. The Government
stressed that freedom of expression was not absolute; it carried with it “duties”
and “responsibilities” (Article 10 para. 2 of the
Convention) (art. 10-2). Mr Castells had overstepped the
normal limits of political debate; he had insulted a democratic government in
order to destabilise it, and during a very sensitive,
indeed critical, period for
42. The Court
recalls that the freedom of expression, enshrined in paragraph 1 of Article 10
(art. 10-1), constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress. Subject to paragraph 2 of Article 10(art.
10-2), 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. Such are the demands of that pluralism,
tolerance and broadmindedness without which there is no “democratic society”
(see, inter alia, the Handyside
While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition member of parliament, like the applicant, call for the closest scrutiny on the part of the Court.
43. In the case under review Mr Castells did not express his opinion from the senate floor, as he might have done without fear of sanctions, but chose to do so in a periodical. That does not mean, however, that he lost his right to criticise the Government.
In this respect, the pre-eminent role of the press in
a State governed by the rule of law must not be forgotten. Although it must not overstep various bounds
set, inter alia, for the prevention of disorder and
the protection of the reputation of others, it is nevertheless incumbent on it
to impart information and ideas on political questions and on other matters of
public interest (see, mutatis mutandis, the Sunday Times v. the
Freedom of the press affords the public one of the
best means of discovering and forming an opinion of the ideas and attitudes of
their political leaders. In particular,
it gives politicians the opportunity to reflect and comment on the preoccupations
of public opinion; it thus enables everyone to participate in the free
political debate which is at the very core of the concept of a democratic
society (see the Lingens v.
44. In its judgment
45. The Court observes, like the Commission, that Mr Castells began by denouncing the impunity enjoyed by the members of various extremist groups, the perpetrators of numerous attacks in the Basque Country since 1977. He thereby recounted facts of great interest to the public opinion of this region, where the majority of the copies of the periodical in question were sold. In his conclusion, however, he levelled serious accusations against the Government, which in his view was responsible for the situation which had arisen (see paragraph 7 above).
46. The freedom of
political debate is undoubtedly not absolute in nature. A
The limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion. Furthermore, the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media. Nevertheless it remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal law nature, intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith.
47. In this
instance, Mr Castells
offered on several occasions, before the Supreme Court and subsequently in the
The applicant could not therefore, in the criminal proceedings brought against him under Article 161 of the Criminal Code, plead the defences of truth and good faith.
48. In the Government’s contention, because Mr Castells’s allegations were not sufficiently precise, their truth could not be demonstrated; in addition, they were to be regarded as value judgments, in relation to which the defence of truth was irrelevant.
This argument is not convincing. The article which appeared in Punto y Hora de Euskalherria (see paragraph 7 above) must be considered as a whole. The applicant began by drawing up a long list of murders and attacks perpetrated in the Basque Country, then stressed that they had remained unpunished; he continued by alleging the involvement of various extremist organisations, which he named, and finally attributed to the Government the responsibility for the situation. In fact many of these assertions were susceptible to an attempt to establish their truth, just as Mr Castells could reasonably have tried to demonstrate his good faith.
It is impossible to state what the outcome of the proceedings would have been had the Supreme Court admitted the evidence which the applicant sought to adduce; but the Court attaches decisive importance to the fact that it declared such evidence inadmissible for the offence in question (see paragraph 12 above). It considers that such an interference in the exercise of the applicant’s freedom of expression was not necessary in a democratic society.
49. The Government also relied on the relatively lenient nature of the sanction imposed, but in the light of the foregoing conclusion the Court does not have to examine this argument.
50. In sum, there has been a violation of Article 10 (art. 10).
II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 10 (art. 14+10)
51. Mr Castells also claimed to be the victim of discrimination because other persons had expressed similar views without any criminal sanctions being imposed on them. He relied on Article 14 (art. 14), which is worded as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government denied this assertion.
52. As this
question is not a fundamental aspect of the case, the Court does not consider
it necessary to deal with it separately (see, inter alia,
the Airey v.
III. APPLICATION OF ARTICLE 50 (art. 50)
53. According to Article 50 (art. 50):
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
54. The applicant
sought in the first place the publication of a summary of the Court’s judgment
in the newspapers of the Basque Country, of
The Court points out that it does not have
jurisdiction to make such orders (see, mutatis mutandis, the Manifattura FL v.
A. Pecuniary damage
55. Mr Castells also claimed 375,000 pesetas in respect of loss of earnings. As an accused on bail, he had to appear fifty-two times before the court of his place of residence (San Sebastián) and three times before the Supreme Court of Madrid (see paragraphs 8-9 above), which resulted in a loss of time and opportunity in the exercise of his professional activity as a lawyer.
The Court takes the view that this constraint can have caused him hardly any loss since, as a lawyer, he frequently attended the courts in question. That he sustained pecuniary damage is therefore not established.
B. Non-pecuniary damage
56. The applicant also claimed, without giving any figures, compensation for non-pecuniary damage. The Court does not rule out the possibility that he may have sustained such damage, but in the circumstances of the case the finding of a violation set out in the present judgment constitutes in itself sufficient just satisfaction.
C. Costs and expenses
57. In respect of his costs and expenses incurred in the Spanish courts, Mr Castells claimed 2,181,476 pesetas. The Court awards him only 1,000,000 of this amount, since some of the sums in question related to amparo appeals unconnected with the complaints found admissible by the Commission.
58. Finally the applicant sought 3,328,000 pesetas for his costs and expenses before the Convention organs, together with 20,000 DM for the fees of Mr Korff and Mr Vervaele.
Like the Government, the Court considers excessive the number of lawyers representing Mr Castells, who appeared before it with four lawyers; it should also be borne in mind that the Commission declared inadmissible some of the complaints raised initially.
Making an assessment on an equitable basis, the Court awards Mr Castells an overall amount of 2,000,000 pesetas.
1. Holds that it has jurisdiction to consider the Government’s preliminary objection, but dismisses it;
2. Holds that there has been a violation of Article 10 (art. 10);
3. Holds that it is not necessary to consider the case also under Article 14, taken together with Article 10 (art. 14+10);
4. Holds that, as regards the non-pecuniary damage alleged, the present judgment constitutes sufficient just satisfaction for the purposes of Article 50 (art. 50);
5. Holds that the
6. Dismisses the remainder of the applicant’s claims.
Done in English and in French, and delivered at a public hearing
in the Human Rights Building,
Signed: Rolv RYSSDAL
Signed: Marc-André EISSEN
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Mr De Meyer;
(b) concurring opinion of Mr Pekkanen;
(c) concurring opinion of Mr Carillo Salcedo, ad hoc judge.
Initialled: R. R.
Initialled: M.-A. E.
In the disputed article Mr Castells drew up a long list of murders and attacks carried out in the Basque Country1 and denounced the impunity, described by him as outrageous (insultante impunidad), enjoyed by their perpetrators2. He complained of the inaction of the authorities3, who, he alleged, had done nothing to identify them, although the same authorities had displayed great diligence “in other cases” (en otros supuestos)4. He saw this as evidence of collusion with the guilty parties5 and attributed responsibility for “these acts” (estas acciones) to the Government and its supporters6.
These were undoubtedly serious accusations7.
In levelling them, however, he was merely legitimately exercising his right to freedom of opinion and of expression. This right was infringed in the case before the Court because Mr Castells was prosecuted and convicted for having written and published his views on a question of general interest; in a “democratic society” it is not acceptable that a citizen be punished for doing this.
In this connection it makes no difference whether Mr Castells was right or wrong. The question of the defence of truth was not relevant in relation to his assessment of the situation8; this is especially so because the murders and attacks referred to in the article really occurred and the impunity of their perpetrators does not even seem to have been denied.
It may be worth adding that as far as insults, false accusation and defamation are concerned there are no grounds for affording better protection to the institutions than to individuals, or to the Government than the oppposition9.
1. Paragraph 48 of the judgment. See the first and second paragraphs of the article (paragraph 7 of the judgment).
2. Title of the article and paragraphs 45 and 48 of the judgment.
3. Paragraph 39 of the judgment.
4. See in particular the third and sixth paragraphs of the article.
5. Paragraph 39 of the judgment.
6. Last paragraph of the article and paragraphs 39 and 45 of the judgment.
7. Paragraph 45 of the judgment.
8. See on this point the
separate opinion of Mr Pekkanen,
p. 29 below, and, mutatis mutandis, the Lingens v.
In his article Mr Castells firstly enumerated a list of murders and attacks carried out in the Basque Country and stressed that they still remained unsolved and unpunished. He also evoked the involvement of various extreme right-wing organisations. From these facts he then drew the conclusion that: “Behind these acts there can only be the Government, the party of the Government and their personnel”.
Mr Castells was sentenced by the Supreme Court for proffering insults of a less serious kind against the Government. The Supreme Court found inter alia that the insults proffered with the aim of political criticism had exceeded the permissible limits of such criticism and attacked the Government’s honour. The Supreme Court was also of the opinion that the defence of truth (exceptio veritatis) was not admissible in such cases under Spanish law.
The Court attached decisive importance to the fact that the Supreme Court of Spain declared the defence of truth inadmissible for the offence in question. Unfortunately I am unable to accept this opinion. The decisive fact for a violation of Article 10 (art. 10) of the Convention is, in my view, that Mr Castells was punished for holding the opinion that the Government was responsible for the incidents in question and publishing it.
With regard to the question of exceptio veritatis, which is discussed at length in the judgment, I consider that it was not possible for Mr Castells to prove the truthfulness of his opinion, an opinion expressed as part of a political debate and affirming that the Government was behind the murders and attacks in question. Exceptio veritatis is therefore not relevant in the instant case. For a finding of a violation of Article 10 (art. 10) of the Convention it is sufficient that Mr Castells was punished for criticising the Government when he had done so in a way which should be allowed in a democratic society.
I fully share the views expressed by the Court at paragraph 46 of the judgment. I should like to stress that freedom of expression constitutes one of the essential foundations of a democratic society. But I must also emphasise that the exercise of that freedom “carries with it duties and responsibilities” (Article 10 para. 2 of the Convention) (art. 10-2), and that, in a situation where politically motivated violence poses a constant threat to the lives and security of the population, it is particularly difficult to strike a fair balance between the requirements of protecting freedom of expression and the imperatives of protecting the democratic State.
By providing, in Article 10 para. 2 (art. 10-2), that the exercise of the freedom of expression and the freedom to hold opinions and to receive and impart information and ideas “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”, the Convention recognises that these freedoms are not absolute. Moreover, the Convention also recognises the principle that no group or person has the right to pursue activities which aim at the destruction of any of the rights and freedoms enshrined in it (Article 17) (art. 17); that implies in addition, in my view, positive obligations for the States parties.
Therefore, it remains open to the States to adopt measures, even of a criminal law nature, intended to react appropriately and without excess, that is, in conformity with the Convention requirements, to defamatory accusations devoid of factual foundation or formulated in bad faith.