Insult of State officials
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW A. National legislation 26. The relevant provisions of the Spanish Constitution read as follows: Article 14 “ Spaniards shall be equal before the law; they may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” Article 16 “1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law. ... ” Article 20 “1. The following rights shall be recognised and protected: (a) the right freely to express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction; ... 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 56 “1. The King shall be the Head of State, the symbol of its unity and permanence. He shall be the arbitrator and moderator of the lawful functioning of institutions. He shall be the supreme representative of the Spanish State in its international relations, in particular with those nations belonging to its historic community, and shall exercise the functions expressly attributed to him by the Constitution and the law. ... 3. The King shall be inviolable and shall not be liable. ... ” Article 62 “It shall be incumbent on the King to: ... (h) exercise supreme command over the armed forces; ( i ) exercise the right of clemency in accordance with the law, but without the power to grant general pardons ... ” 27. The relevant provisions of the Criminal Code (as amended by Institutional Act no. 10/1995 of 23 November 1995) read as follows: Article 208 “ Acts or expressions which undermine another ’ s dignity by attacking his or her reputation or self-esteem shall constitute insult. Only insults which, by virtue of their nature, effects and context, are generally acknowledged to be serious shall constitute an offence ... ” Article 209 “The offence of serious public insult shall be punishable by a day-fine payable for between six and fourteen months. Where the insult is not proffered publicly, the fine shall be payable for between three and seven months.” 28. With regard to the offence of insult against the King, Article 490 of the Criminal Code provides for the penalties indicated below : Article 490 “... 3. Anyone who falsely accuses or insults the King or any of his ascendants or descendants, the Queen consort or the consort of the Queen, the Regent or any member of the Regency, or the Crown Prince, in the exercise of his or her duties or on account of or in connection with them, shall be liable to a term of imprisonment of between six months and two years if the false accusation or insult is of a serious nature, and otherwise to a day-fine payable for between six and twelve months.” This provision is contained in Title XXI of Book II of the Criminal Code (“Offences against the Constitution”), under Chapter II (“Offences against the Crown”). 29. Articles 496 and 504 of the Criminal Code deal with the offence of serious insult against Parliament, the government or other State institutions. These provisions feature in Title XXI of Book II of the Criminal Code ( “Offences against the Constitution”), under Chapter III (“Offences against State institutions and the separation of powers”). Article 496 “ Anyone who seriously insults the Cortes Generales [Congress of Deputies and Senate] or the legislative assembly of an Autonomous Community ... shall be liable to a day-fine payable for between twelve and eighteen months ... ” Article 504 “Anyone who seriously threatens, falsely accuses or insults the nation ’ s government, the General Council of the Judiciary, the Constitutional Court, the Supreme Court, or the Governing Council or High Court of Justice of an Autonomous Community shall be liable to a day-fine payable for between twelve and eighteen months ... ” B. Council of Europe texts 30. Reference should first be made to the Declaration on freedom of political debate in the media adopted by the Committee of Ministers of the Council of Europe on 12 February 2004, which provides: “ The Committee of Ministers of the Council of Europe, ... Conscious that some domestic legal systems still grant legal privileges to political figures or public officials against the dissemination of information and opinions about them in the media, which is not compatible with the right to freedom of expression and information as guaranteed by Article 10 of the Convention; ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 32. The applicant alleged that the Supreme Court decision finding him guilty of serious insult against the King amounted to undue interference with his right to freedom of expression under 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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 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.” 33. The Government contested that argument. A. Admissibility 34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 35. The applicant submitted firstly that the provision of the Criminal Code on which his conviction had been based (Article 490 § 3) was not worded with sufficient precision and clarity. The increased protection provided for by Article 490 § 3 of the Criminal Code had in reality been turned into an absolute defence of the constitutional monarchy, going beyond the defence of individuals ’ honour and dignity. In the applicant ’ s view, such a broad interpretation of the provision concerned could not be said to be “prescribed by law” within the meaning of Article 10 § 2 of the Convention. 36. Furthermore, the interference had not pursued a “legitimate aim” within the meaning of Article 10 § 2, as it had been intended as symbolic punishment of any attempt to question the institution of the monarchy and, accordingly, the Constitution. 37. The applicant contended that his conviction had been neither proportionate to the legitimate aim pursued nor “necessary in a democratic society”. He referred to his own status as spokesperson for the Basque separatist parliamentary group Sozialista Abertzaleak and to the particular circumstances of the case, namely the closure of the Basque daily newspaper Euskaldunon Egunkaria and the outcry caused in the Basque Country by the allegations that the persons detained in connection with that operation had been tortured. His remarks had dealt with a topic of public interest, namely the use of torture by the Spanish security forces in the fight against terrorism, a practice confirmed by numerous international human rights organisations. As to the Supreme Court ’ s argument that his remarks had been without foundation since the proceedings relating to the complaints alleging torture had been discontinued, the applicant submitted firstly that he could not have known when he was making his remarks what the outcome of the criminal investigation would be, since the latter had taken place several months after the events; secondly, no final decision had been issued discontinuing the proceedings. In that connection, the applicant, referring to the judgment in Martinez Sala and Others v. Spain ( no. 58438/00, § 160, 2 November 2004 ), stated that, in Spain, numerous complaints alleging torture were filed away without further action being taken although no detailed investigation had been carried out. Furthermore, the monarch had granted pardons under the Spanish Constitution to numerous members of the Spanish security forces convicted of torture. The applicant cited by way of example the decision of the United Nations Committee Against Torture in the case of Kepa Urra Guridi v. Spain ( Communication no. 212/2002, UN doc. CAT/C/34/D/212/2002). It was against this background that his remarks had to be seen; the applicant claimed that he had himself been subjected to torture following his arrest in July 1987. 38. Referring to the Court ’ s case-law on the subject of insults against a Head of State ( see Colombani and Others v. France, no. 51279/99, § § 66 ‑ 69, ECHR 2002 ‑ V, and Pakdemirli v. Turkey, no. 35839/97, § § 51 ‑ 52, 22 February 2005 ), the applicant argued that the excessive protection afforded to the Crown under Spanish criminal law was incompatible with Article 10 of the Convention. Whereas in the case of ordinary individuals and other institutions an insult had to be characterised as serious in order for the person concerned to be prosecuted, in the case of the Crown any kind of insult sufficed and was punishable. The offence of serious insult against the Crown was unique in carrying a prison sentence ( of six months to two years); under ordinary law and in the case of other institutions, the penalty for serious insult was a fine. The provisions in question therefore conferred on the Crown “ a special privilege that [could not] be reconciled with modern practice and political conceptions ” (the applicant referred to Colombani and Others, cited above, § 68). The applicant alluded to the legislative trends in Council of Europe member States, most of which dealt with attacks against the sovereign under the ordinary law. Hence, making insults against the King a criminal offence was not necessary in a democratic society, especially as the offences of criminal defamation and proffering insults provided Heads of State or monarchs with sufficient remedy against remarks that damaged their honour. 39. As to the proportionality of the penalty, the applicant stressed that from 8 June 2007 to 30 August 2008 he had served the prison sentence that had become enforceable after the Supreme Court had upheld his 2006 conviction for publicly defending terrorism. Referring to the Court ’ s case ‑ law, according to which a prison sentence imposed for an offence committed in the context of political debate was compatible with freedom of expression only in exceptional circumstances ( see Feridun Yazar v. Turkey, no. 42713/98, § 27, 23 September 2004 ), he submitted that there had been no grounds in the present case for imposing such a penalty, which in his view was manifestly disproportionate to the aim pursued. Lastly, he argued that the King had not suffered any harm and that no civil proceedings had been brought. (b) The Government 40. The Government contended that the applicant ’ s remarks would have constituted a serious slur on the honour of whoever happened to be the target, including of course the King. Describing someone as a torturer amounted to saying that the person concerned had violated the core values of the society of which he or she was a member and conveying a negative view of his or her dignity and integrity. This was especially so in the instant case, where the target of the remarks had a particular duty to adhere to and ensure adherence to the core values in question. 41. In the Government ’ s view, the Spanish courts had taken due account of the Court ’ s case-law on the subject. In that connection, they pointed out that the case-law of the Constitutional Court recognised the importance of freedom of expression as an essential guarantee of free public opinion, which was inextricably linked to democratic pluralism. However, the right to freedom of expression did not protect a supposed right to proffer insults and hence did not encompass vexatious remarks which were irrelevant and superfluous for the purposes of conveying the opinions or information concerned. Referring to the Court ’ s case-law ( see Lingens v. Austria, 8 July 1986, Series A no. 103 ), the Government stressed that although the limits of permissible criticism were wider with regard to public figures, the latter ’ s reputation must also be protected for the purposes of Article 10 § 2 of the Convention even where the persons concerned were not acting in a private capacity. 42. The Government stressed the unique institutional position occupied by the King under the Spanish Constitution, pointing out that the King could not be held liable and that his neutral status in political debate under the Constitution meant that he was owed institutional respect of a kind that was “substantively” different from that due to other State institutions. 43. Even assuming that the limits of criticism of the King of Spain by a member of a regional parliament were wider, neither the Spanish Constitution nor the Convention could be deemed to recognise a right to proffer insults, in disregard of a person ’ s dignity. The Government agreed with the Spanish courts that the interference complained of had not been directed against the applicant ’ s anti-monarchy views but against specific expressions which had overstepped the bounds of legitimate exercise of the right to free expression, in breach of the King ’ s right to honour. Lastly, the Spanish courts had given ample reasons for the applicant ’ s conviction, in the light of the background to the case. 2. The Court ’ s assessment 44. It is not disputed between the parties that the applicant ’ s conviction amounted to “interference by public authority” with his right to freedom of expression. Such interference will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10. It must therefore be determined whether it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims. (a) “Prescribed by law” 45. The Court notes that the statutory basis for the applicant ’ s conviction was Article 490 § 3 of the Criminal Code, which makes it a punishable offence to insult the King. As to whether that provision was applied by the courts examining the case on the merits with the aim of defending the monarchy, as suggested by the applicant, to the point of making the legal rule in question less foreseeable, this question is actually linked to the relevance and sufficiency of the reasons given by the domestic courts to justify the interference with the applicant ’ s freedom of expression. The Court will therefore examine this issue in the context of the “necessity” of the interference. 46. The Court concludes that the interference at issue was “prescribed by law” within the meaning of Article 10 § 2 of the Convention. (b) Legitimate aim 47. In the Court ’ s view, the interference pursued one of the aims enumerated in Article 10 § 2, namely the “protection of the reputation or rights of others”, in this case the reputation of the King of Spain. (c) “Necessary in a democratic society” ( i ) General principles 48. Freedom of expression 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. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV; and Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC], no. 32772/02, § 96, ECHR 2009 ). 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. 49. 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 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. The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” and whether it was “proportionate to the legitimate aim pursued”. 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 relied on an acceptable assessment of the relevant facts (see, among many other authorities, Mamère v. France, no. 12697/03, § 19, ECHR 2006 - XIII, and Lindon, Otchakovsky -Laurens and July, cited above, § 45). 50. There is little scope under Article 10 § 2 for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance – or in matters of public interest. 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, interference with the freedom of expression of a member of parliament calls for the closest scrutiny on the part of the Court (see Castells v. Spain, 23 April 1992, § 42, Series A no. 236 ). Furthermore, the limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance (see Lingens, cited above, § 42; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 40, 27 May 2004; and Lopes Gomes da Silva v. Portugal, no. 37698/97, § 30, ECHR 2000 ‑ X ). He is certainly entitled to have his reputation protected, even when he is not acting in his private capacity, but the requirements of that protection have to be weighed against the interests of open discussion of political issues, since exceptions to freedom of expression must be interpreted narrowly (see, among other authorities, Pakdemirli, cited above, § 45, and Artun and Güvener v. Turkey, no. 75510/01, § 26, 26 June 2007 ). The Court has also acknowledged that public officials are subject to wider limits of criticism than private individuals, although the criteria applied to them cannot be the same as for politicians (see Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999 ‑ I ). (ii) Application of these principles 51. The Court notes at the outset that the applicant was undeniably speaking in his capacity as an elected representative and spokesperson for a parliamentary group, so that his comments were a form of political expression (see Mamère, cited above, § 20). Furthermore, the applicant ’ s remarks concerned an issue of public interest in the Basque Country, namely the welcome extended by the Head of the government of the Basque Country to the King of Spain during the latter ’ s official visit to the Basque Country on 26 February 2003, against the background of the closure of the Basque ‑ language newspaper Euskaldunon Egunkaria and the detention of its senior management a few days previously, and of the latter ’ s public allegations of ill-treatment. The applicant ’ s statements were therefore made in the context of a debate on matters of public interest. Accordingly, the margin of appreciation available to the authorities in establishing the “ necessity ” of the penalty imposed on the applicant was particularly narrow (see, mutatis mutandis, Mamère, cited above, § 20). 52. The Court must now examine the reasons leading to the impugned decisions by the domestic courts, in order to determine whether they were relevant and sufficient to justify the applicant ’ s conviction on the basis of the legitimate aim referred to, namely the protection of the reputation of the King of Spain. The Supreme Court, in overturning the applicant ’ s acquittal by the Basque Country High Court of Justice, sentenced him to one year ’ s imprisonment for serious insult against the King. It considered that the impugned remarks had directly targeted the King in person and the institution he embodied and that they had overstepped the limits of permissible criticism. 53. As regards the terms in which the applicant expressed himself, the domestic courts found them to have been ignominious, vexatious and derogatory in so far as they accused the Head of State of “ one of the most serious manifestations of criminal conduct in a State governed by the rule of law ”, namely torture (“ in charge of the torturers”, “who defends torture” and “ [who] imposes his monarchical regime on our people through torture and violence”). The Court points out in that regard that a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see, for example, Lindon, Otchakovsky ‑ Laurens and July, cited above, § 55). Furthermore, the requirement to furnish facts in support of a value judgment is less stringent if the information is already known to the general public (see Feldek v. Slovakia, no. 29032/95, § 86, ECHR 2001 ‑ VIII ). In the present case, the Court observes that the Supreme Court stated in its judgment that the impugned remarks had been value judgments rather than statements of fact. However, it took the view that the context in which they had been made did not justify their seriousness, in view of the fact that the proceedings concerning the allegations of torture made by the management of the newspaper Euskaldunon Egunkaria had been discontinued for lack of evidence. The Court observes that there was a sufficiently strong link between the applicant ’ s remarks and the allegations of ill-treatment made public by the editor-in-chief of Euskaldunon Egunkaria on his release. It further notes that the terms used by the applicant could be understood as forming part of a wider public debate on the possible implication of the State security forces in cases of ill ‑ treatment. 54. Turning to the expressions themselves, the Court accepts that the language used by the applicant could have been considered provocative. However, while any individual who takes part in a public debate of general concern – like the applicant in the instant case – must not overstep certain limits, particularly with regard to respect for the reputation and rights of others, a degree of exaggeration, or even provocation, is permitted; in other words, a degree of immoderation is allowed (see Mamère, cited above, § 25). The Court observes that, while some of the remarks made in the applicant ’ s speech portrayed the institution embodied by the King in a very negative light, with a hostile connotation, they did not advocate the use of violence, nor did they amount to hate speech, which in the Court ’ s view is the essential element to be taken into account (see, conversely, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 ‑ IV ). It also notes that neither the domestic courts nor the Government sought to justify the applicant ’ s conviction by reference to incitement to violence or hate speech. The Court further takes account of the fact that the remarks were made orally during a press conference, so that the applicant had no possibility of reformulating, refining or retracting them before they were made public (see Fuentes Bobo v. Spain, no. 39293/98, § 46, 29 February 2000, and Birol v. Turkey, no. 44104/98, § 30, 1 March 2005 ). 55. Next, the Court notes that, in convicting the applicant, the domestic courts relied on Article 490 § 3 of the Criminal Code, which affords the Head of State a greater degree of protection than other persons (protected by the ordinary law on insults) or institutions (such as the government and Parliament) with regard to the disclosure of information or opinions concerning them, and which lays down heavier penalties for insulting statements (see paragraphs 27-29 above). In that connection, the Court has already stated that providing increased protection by means of a special law on insults will not, as a rule, be in keeping with the spirit of the Convention. In its judgment in Colombani and Others, it examined section 36 of the French Act of 29 July 1881, which has since been repealed, concerning offences against foreign Heads of State and diplomats. It observed that the application of section 36 of the 1881 French Act conferred on foreign Heads of State a special privilege, shielding them from criticism solely on account of their function or status; this, in the Court ’ s view, could not be reconciled with modern practice and political conceptions. The Court therefore held that it was the special protection afforded to foreign Heads of State by section 36 that undermined freedom of expression, not their right to use the standard procedure available to everyone to complain if their honour had been attacked (see Colombani and Others, cited above, § 69). In Artun and Güvener, the Court took the view that its findings in Colombani and Others on the subject of foreign Heads of State applied with even greater force to a State ’ s interest in protecting the reputation of its own Head of State. That interest, in the Court ’ s view, could not serve as justification for affording the Head of State privileged status or special protection vis-à-vis the right to convey information and opinions concerning him (see Artun and Güvener, cited above, § 31; see also, with regard to excessive protection of the status of the President of the Republic in civil cases, Pakdemirli, cited above, § 52). 56. The Court considers that, despite the differences compared with a republican system like that of Turkey, the principles established in its own case-law in that regard are also valid in relation to a monarchy like Spain, where the King occupies a unique institutional position, as pointed out by the Government. In Pakdemirli, the excessive protection afforded to the President of the Republic derived also from the fact that the holder of the office ceased to have the status of politician and acquired that of statesman (see Pakdemirli, cited above, § 51). In the Court ’ s view, the fact that the King occupies a neutral position in political debate and acts as an arbitrator and a symbol of State unity should not shield him from all criticism in the exercise of his official duties or – as in the instant case – in his capacity as representative of the State which he symbolises, in particular from persons who challenge in a legitimate manner the constitutional structures of the State, including the monarchy. In that connection, the Court notes that the Basque Country High Court of Justice, which acquitted the applicant at first instance, observed that criticism of a constitutional institution was not excluded from the scope of the right to freedom of expression (see paragraph 13 above). The Court cannot but emphasise that freedom of expression is all the more important when it comes to conveying ideas which offend, shock or challenge the established order (see Women On Waves and Others v. Portugal, no. 31276/05, § 42, 3 February 2009 ). Furthermore, it considers that the fact that the King is “not liable” under the Spanish Constitution, particularly with regard to criminal law, should not in itself act as a bar to free debate concerning possible institutional or even symbolic responsibility on his part in his position at the helm of the State, subject to respect for his personal reputation. 57. In that connection, the Court points out that the remarks at issue in the instant case did not concern the King ’ s private life (see, conversely, Standard Verlags GmbH v. Austria (no. 2), no. 21277/05, 4 June 2009, a case concerning strictly personal aspects of the Austrian President ’ s private life; see also Von Hannover v. Germany, no. 59320/00, § 64, ECHR 2004 ‑ VI ) or his personal honour, nor did they amount to a gratuitous personal attack against him (see, conversely, Pakdemirli, cited above, § 46). It also notes that, in the view of the Basque Country High Court of Justice, the applicant ’ s statements had been made in a public and political context unconnected to the “ innermost core of individual dignity” (see paragraph 14 above). Nor did the remarks in question criticise the manner in which the King performed his official duties in a particular sphere or attribute any individual responsibility to him in the commission of a specific criminal offence. The applicant ’ s comments related solely to the King ’ s institutional responsibility as the symbol and Head of the State apparatus and of the forces which, according to the applicant, had tortured the editors and directors of the newspaper Euskaldunon Egunkaria. 58. Lastly, as regards the penalty imposed, while it is perfectly legitimate for the institutions of the State, as guarantors of the institutional public order, to be protected by the competent authorities, the dominant position occupied by those institutions requires the authorities to display restraint in resorting to criminal proceedings (see, mutatis mutandis, Castells, cited above, § 46; see also the Council of Europe materials, paragraphs 30 and 31 above). The Court observes in that regard that the nature and severity of the penalties imposed are also factors to be taken into consideration in assessing the “proportionality” of the interference. It notes the particularly harsh nature of the penalty imposed: the applicant was sentenced to one year ’ s imprisonment. His criminal conviction also resulted in his right to stand for election being suspended for the duration of his sentence, even though he was a politician. 59. The Court has previously held that, although sentencing is in principle a matter for the national courts, the imposition of a prison sentence for an offence in the area of political speech will be compatible with freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the case of hate speech or incitement to violence (see Bingöl v. Turkey, no. 36141/04, § 41, 22 June 2010, and, mutatis mutandis, Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 115, ECHR 2004 ‑ XI ). It refers in that regard to the guidance given in the materials of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe concerning prison sentences in the area of political speech (see paragraphs 30 and 31 above). 60. There is nothing in the circumstances of the present case, in which the impugned remarks were made in the context of a debate on an issue of legitimate public interest, to justify the imposition of such a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect, notwithstanding the fact that enforcement of the applicant ’ s sentence was stayed. While that fact may have eased the applicant ’ s situation, it did not erase his conviction or the long-term effects of any criminal record (see, mutatis mutandis, Artun and Güvener, cited above, § 33, and Marchenko v. Ukraine, no. 4063/04, § 52, 19 February 2009 ). 61. In view of the foregoing, even assuming that the reasons given by the domestic courts could be said to be relevant, they are not sufficient to demonstrate that the interference complained of was “necessary in a democratic society”. Notwithstanding the margin of appreciation left to the national authorities, the Court considers that the applicant ’ s conviction was disproportionate to the aim pursued. 62. Accordingly, there has been a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 10 OF THE CONVENTION 63. The applicant alleged that he had been the victim of discrimination based on his political opinions and his function as a spokesperson for the Basque separatist movement. He relied on Article 14 of the Convention taken in conjunction with Article 10. Article 14 provides: “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.” 64. The Court observes that this complaint is linked to the complaint examined above and should therefore likewise be declared admissible. 65. Having regard to its finding in relation to Article 10 of the Convention (see paragraph 62 above), the Court considers that it is not necessary to examine separately the applicant ’ s complaint under Article 14 taken in conjunction with Article 10 (see, among other authorities, Bingöl, cited above, § 44). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 67. The applicant claimed 78,586 euros (EUR) in respect of pecuniary damage. He submitted that this amount corresponded to the losses actually sustained as a direct consequence of the alleged violation, and especially the loss of his allowance as a member of parliament on account of his imprisonment from 8 June 2007 to 30 August 2008. 68. The Government contested the claim. 69. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. B. Non-pecuniary damage 70. The applicant claimed EUR 30,000 in respect of non-pecuniary damage. 71. The Government considered the amount claimed to be excessive. 72. The Court considers that the applicant sustained, on account of the violation found, non-pecuniary damage that cannot be compensated by the mere finding of a violation. Ruling on an equitable basis as required by Article 41 of the Convention, it awards the applicant the sum of EUR 20,000 in respect of non-pecuniary damage. C. Costs and expenses 73. The applicant also claimed EUR 3,000 for the costs and expenses incurred before the Court. 74. The Government contested the claim. 75. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the applicant the sum of EUR 3,000 for the proceedings before the Court. D. Default interest 76. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that 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. The Court observed in particular that, 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.