I. The Circumstances of the Fragoso Dacosta Case

Fragoso Dacosta was convicted of the crime of insulting Spain—Article 543 of the Penal Code (PC)—for statements made during a union protest, which resulted in STC 190/2020, December 15.

The circumstances of the case arose in the context of a labor dispute between the workers responsible for cleaning the premises of the Ferrol Military Arsenal, controlled by the Ministry of Defense, and the company hired to provide this service. Due to unpaid wages, both the workers and the union representatives, including the applicant, pressed their demands through strikes and protests at the gates of the military premises that had been taking place over a period of months. These protests had been taking place daily for several months, occurring just minutes before the start of the routine ceremonial act traditionally held at that location—namely, the hoisting of the national flag, accompanied by the national anthem and a military guard standing at present arms. Within the context of these protests, participants engaged in whistling, booing, and shouting as expressions of dissent and trade union protest. This action was intended to raise awareness of the labor dispute in which they were involved. By publicizing and raising awareness of their demands and the labor dispute on a public thoroughfare and at their workplace, their goal was also to seek the support of Ministry of Defense officials in the hope that they would intervene to help resolve the dispute. The Ministry of Defense, however, maintained its distance and did not take any action in the matter.Footnote ⁵⁰

One day, against the backdrop of these protests, and taking advantage of the solemn ceremony that was taking place nearby—with the raising of the national flag, the national anthem, and the military guard at present arms—Fragoso Dacosta shouted through a megaphone in Galician and in the context of the protest, for the labor reasons mentioned above: “Here is the silence of the fucking flag,” and “[t]he fucking flag must be set on fire.”Footnote ⁵¹ These statements were deemed to constitute the criminal offence of insulting Spain by the Criminal Court of Ferrol; a conviction that was subsequently upheld on appeal by the Provincial Court of A Coruña in 2018. These judicial decisions, which imposed a penalty consisting of a fine over a period of seven months, which could entail subsidiary personal liability, led the applicant to file a constitutional appeal before the CC.Footnote ⁵²

II. Reasoning Adopted by the Lower Courts in Domestic Proceedings Versus the Position of the Public Prosecutor

The lower domestic courts considered that the facts of the case constituted the crime of insulting Spain under Article 543 PC, which penalizes “verbal, written, or physical insults or affronts to Spain, its autonomous communities, or their symbols or emblems.”Footnote ⁵³ Both courts held that the offence was made out due to the serious affronts directed at the Spanish flag, which were further aggravated by their public nature, as the statements in question were made through the use of a megaphone, in the presence of members of the armed forces, and within the context of a formal ceremonial act.Footnote ⁵⁴

This element of public exposure, according to the judgment delivered on appeal, added a further aggravating factor: its capacity to disrupt peaceful civic coexistence.Footnote ⁵⁵ The Provincial Criminal Court delivering the appellate ruling also stated that the SC does not recognize a right to insult under the guise of freedom of expression. Moreover, the Court found that the accused displayed a deliberate intention to disparage or insult—an intention which, in its view, could not be protected by freedom of expression—in contrast to other statements and proclamations made by trade union representatives during the labor protests, which were expressed in a less hostile tone. However, the Provincial Criminal Court also maintained that the expressions in question caused the military authorities to experience a profound sense of humiliation.Footnote ⁵⁶

It is worth noting that, while the Provincial Court acknowledged the ongoing doctrinal debate in Spain regarding the constitutionality of this crime, it stressed that Spanish judges and courts are subject to the rule of law. As Article 543 PC was in force and applicable at the time of the events, the courts were bound to apply it and impose criminal liability accordingly.Footnote ⁵⁷

By contrast, and opposing the reasoning of the lower courts, the Public Prosecutor submitted its arguments before the CC in favor of granting the constitutional protection on the grounds of a violation of freedom of expression.

The first point raised by the Public Prosecutor was the necessary application of the ECtHR’s case law concerning freedom of expression. Accordingly, pursuant to Article 10.2 ECHR, the Public Prosecutor emphasized that restrictions on freedom of expression must remain exceptional and be duly justified in a democratic society. In its view, the decisions challenged through the constitutional appeal failed to properly assess several key elements, ultimately undermining the proportionality of the conviction. Namely: the context and surrounding circumstances of the labor protest during which the contested statements were made, the applicant’s role as a trade union representative, and the content and purpose of the expressions.Footnote ⁵⁸

The Public Prosecutor argued that, although the expressions in isolation may appear excessive, when placed in context—in other words, uttered as part of a union-related protest by an individual acting in their capacity as a union representative—their criminalization becomes disproportionate. Consequently, it asserted that, in a context such as this, freedom of expression should receive its highest level of protection. It also recalled that the case law of the ECtHR has limited the protection afforded to national symbols, which cannot be privileged over the exercise of freedom of expression.Footnote ⁵⁹

III. Brief Mention of the Stern Taulats and Roura Capellera Case v. Spain, March 13, 2018 as a Recent ECtHR Precedent Applicable to the Present Case

Before commenting on the CC’s dismissive ruling in this case, it is important to bear in mind the recent precedents in which Spain had already been condemned by the ECtHR, and not in an isolated or one-off manner, for violation of the freedom of expression guaranteed by Article 10 ECHR. The most recent and direct case law precedent applicable to this case was the standard established by the ECtHR on freedom of expression in Stern Taulats and Roura Capellera v. Spain, March 13, 2018. In this case, Spain was condemned for violating the freedom of expression of two protesters, as per Article 10 ECHR. The State considered the alleged burning of a photograph of the King during an anti-monarchy demonstration to be a crime of insulting the Crown rather than a legitimate exercise of freedom of expression.Footnote ⁶⁰ The ECtHR has already shown in its case law that this freedom must be afforded a wide margin of protection in view of its important objective dimension, in other words, its contribution to the freedom of public opinion and healthy criticism inherent in democratic societies.

Nevertheless, in this judgment the ECtHR sets standards for the protection of freedom of expression when, as in this case, statements, however uncomfortable, distasteful, or hurtful,Footnote ⁶¹ are made against persons who, by virtue of their role, are subject to particular public scrutiny, in the context of criticism that is relevant to the general interest and contributes to public debate. The important point here is that in the above case, the incident occurred in the context of political criticism of the institution of the monarchy, and not the person of the King, without any actual incitement to hatred or the use of violence.Footnote ⁶²

The underlying reason for referring to the aforementioned case is that both the Stern Taulats and Roura Capellera case and the Fragoso Dacosta share a common denominator: in both, the criticism pertains to issues of political relevance that contribute to public debate. For this reason, the standard applied by the ECtHR in Stern Taulats and Roura Capellera was entirely transferable to the present case and, as such, should have been applied by the CC.

However, as will be addressed below, the CC declined to apply the ECtHR doctrine established in Fragoso Dacosta case, on the grounds that the two cases are not comparable. This distinction is based on the fact that Stern Taulats concerned a person of public significance due to the position held—the King—, whereas in Fragoso Dacosta, the offensive expressions were not directed at a public figure but rather at a national symbol.

Nevertheless, it is our view that this distinction cannot serve as a valid justification for disregarding ECtHR case law. It makes little sense to dismiss the application of the Stern Taulats doctrine by affording less protection to an expression directed against the flag as a symbol of the State than to an expressive act targeting the Head of State—who is also a symbol of unity and continuity.Footnote ⁶³ The criticism was directed at the flag, which is nothing more than a symbol with a distinct political character, and therefore there must be ample room for criticism and the exercise of freedom of expression. Furthermore, this criticism is made in the context of union advocacy, and we would argue that the ECtHR case law in Stern Taulats and Roura Capellera v. Spain should be applied to this case.

In light of the case law established in Stern Taulats and Roura Capellera v. Spain, as well as other notable ECtHR precedents, it was feasible to expect the admission of the constitutional appeal in favor of the applicant Fragoso Dacosta, on the grounds of violation of his freedom of expression and ideological freedom. However, the CC dismissed the appeal on a number of grounds, which are summarized below.

IV. The Spanish CC’s Position in Fragoso Dacosta Case: Why Did It Deny the Constitutional Appeal?

Before discussing the arguments put forward by the CC in this case, it is first necessary to clarify a methodological issue. When the CC is required to resolve a conflict between rights or other competing interests, it does not apply the same methodological logic as the ECtHR. As is well known, the ECtHR begins by identifying the scope of protection of the right in question under national law, followed by an analysis of the interference with that right and whether such interference is justified: namely, whether it is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society.

By contrast, when the CC is called upon to assess the constitutional legitimacy of a restriction on a right due to its conflict with another right or constitutionally protected interest, it typically applies the principle of proportionality. This principle, originating in German jurisprudence,Footnote ⁶⁴ has been adopted by the Spanish CC. The structural method applied by the TC under this principle generally involves a three-stage test:Footnote ⁶⁵

1. 1. Suitability test: The CC assesses whether the restrictive measure is suitable—in other words, effective—for achieving the legitimate aim pursued by the norm or measure establishing the restriction.

2. 2. Necessity test: The CC considers whether the restrictive measure is the least harmful means of achieving the intended aim. If there is a less restrictive alternative that would equally serve the same legitimate purpose, that alternative must be chosen.

3. 3. Proportionality in the strict sense: Once the previous two tests are satisfied, the CC undertakes a final balancing of the competing interests. It weighs the advantages and disadvantages of the restrictive measure in light of the circumstances of the case. The conclusion must be that the benefits of the restriction outweigh its drawbacks for it to be deemed legitimate in the context of the conflict of rights.

In the present case, the CC’s application of the principle of proportionality is not carried out thoroughly according to this three-stage test. While the CC states that it will conduct a proportionality assessment between freedom of expression and the general interest involved in the protection of state symbols, it does so rather superficially, without fully applying the structure of the test.

In our view, the reason why the CC’s proportionality analysis is superficial in this case lies in the fact that, from the outset, the CC frames its reasoning around a set of circumstantial elements it deems essential and cannot disregard. These elements are:

1. 1. The timing of the expressions in question—during an event of special respect and reverence for state symbols.

2. 2. The use of offensive language such as “fucking” to refer to the flag.

3. 3. The view that such expressions were unnecessary for advancing the labor-related demands at issue.

4. 4. Consequently, they perceived lack of connection between the expressions used and the labor-related demands.

5. 5. The presence of a strong sense of humiliation experienced by the military personnel present at the event.

We shall now summarize the reasoning upheld by the Spanish CC in the case under analysis.Footnote ⁶⁶

First, the CC begins by outlining the subject matter of the appeal and the claims raised by the parties. It then emphasizes that the special constitutional significance of the appeal lies in “examining the legitimacy of the criminal conviction imposed for uttering offensive expressions directed at one of Spain’s political symbols, namely the national flag (Article 4.1 SC).”Footnote ⁶⁷

Second, the CC defines the scope of its judicial review. In this regard, it clarifies that the constitutional issue raised is not to determine in the abstract the constitutionality of the criminal provision, but rather to assess the lawfulness of its application in the specific case.Footnote ⁶⁸

Of particular interest is the CC’s invocation of its well-established case law on freedom of expression. It is therefore appropriate to briefly highlight the key elements of this jurisprudence, as reiterated by the Court in the present case. These revolve around the content and limits of freedom of expression.

The CC reaffirms its settled doctrine on the objective dimension of freedom of expression, because it serves as a safeguard for the formation of a free public opinion. Accordingly, the Court positions this freedom as a fundamental pillar of democracy.

Indeed, the prominent status of freedom of expression justifies a broad scope of its exercise, “which must be sufficiently generous so as to be exercised without constraints—that is, without timidity or fear.”Footnote ⁶⁹ In reiterating its general doctrine, the CC refers to ECtHR case law, noting that freedom of expression includes not only agreeable or inoffensive statements, but also those that “offend, shock or disturb.”Footnote ⁷⁰

However, it also recalls that Article 20.1(d) SC does not protect a supposed right to insult. Thus, constitutionally protected speech excludes expressions which, due to the circumstances of the case, are “undoubtedly injurious, outrageous or defamatory—in other words, offensive expressions that bear no relation to the ideas or opinions expressed and that are unnecessary for their exposition…. ”Footnote ⁷¹

The CC further recalls that freedom of expression is not absolute and may be subject to legitimate limitations to protect other rights or interests worthy of protection, as the ECtHR also acknowledges. This includes expressions that “spread, incite, promote or justify hatred based on intolerance.”Footnote ⁷² Still, the CC insists that any restriction must result from a case-by-case balancing test. This is particularly important because, in conflicts with other rights, the CC grants freedom of expression a special “preferential position in our legal system as a cornerstone of pluralism and political order,”Footnote ⁷³ which is further strengthened when “there is a connection between the exercise of the right to freedom of expression and ideological freedom.”Footnote ⁷⁴ Consequently, as the CC explains, the possibility of restricting its exercise in such cases is limited to instances of “insult, incitement to violence (hate speech), and disturbance of public order protected by law.”Footnote ⁷⁵

Despite the clear grounds on which the CC begins its reasoning, they are gradually cast aside when applied to the specific case, to the point where it is argued that the statements made by the applicant do not fall within the scope of freedom of expression. For clarity and better understanding, we now present the CC’s reasoning in line with the key elements it relied upon:

1. 1. The ceremonial and solemn context in which the statements were made. The CC considers that the applicant took advantage of a context of special respect towards the national flag. It clarifies that this is a symbol which, for many, represents a sense of belonging and national identity. Against this backdrop, the applicant made certain expressions that, in the Court’s view, were “unnecessary and unrelated to the labor-related claim.”Footnote ⁷⁶ Notably, the CC does not assess the applicant’s role as a union representative, despite its relevance to the nature and boundaries of the protest.Footnote ⁷⁷

2. 2. The unnecessary use of the expressions “fucking flag” and “the flag must be burned” in support of labor claims. On this point, the CC’s reasoning is somewhat flimsy, basing this position solely on the comparison between what the applicant said and other less offensive expressions that had previously been made in the same context.Footnote ⁷⁸ The CC goes further in its assessment of the statements, stating that they not only imply a rejection of the political symbolism represented by the flag, but that they are “belligerent” and “offensive towards a symbol–the national flag—against the background of claims that were completely unrelated to the values that the flag represents.”Footnote ⁷⁹ The CC stresses that “given the terms used, an emotional reflection of hostility is conveyed; ultimately expressing contempt towards a symbol that is respected and regarded by many citizens as part of their national identity, the contested message falls outside the regular exercise of the right to freedom of expression.”Footnote ⁸⁰ In these terms, the Court already considers that the controversial expressions fall outside the scope of protection afforded by the right to freedom of expression.Footnote ⁸¹

3. 3. The lack of any connection between the statements made and the labor dispute in question. This point is crucial to the CC’s decision, as it considers the applicant’s words to be “individual and isolated from the other acts of protest and the slogans used in that context, and unrelated to the protesters’ demands.”Footnote ⁸² As such, the CC believes that the statements in question did not add anything, nor was there any connection between the flag and the union demands being made.Footnote ⁸³ However, as will be seen in the separate opinions, this argument lacks merit because it is based on an incomplete contextualization of the case. It should be noted that the CC all but ignored the subject’s status as a union representative in its arguments, and that the phrase “the silence of the fucking flag”Footnote ⁸⁴ was a frustrated response to a failed attempt by the protestors to attract the attention of the Ministry of Defense, urging it not to stand idly by but to step in to resolve the labor dispute. However, this contextualization is neither complete nor clearly reflected in the CC’s assessment of the case.

4. 4. The “intense feeling of humiliation”Footnote ⁸⁵ suffered by the military present at the event, according to the appeal ruling.

Apart from these key aspects of STC 190/2020, December 15, it is remarkable that the CC makes only a passing reference to the Stern Taulats and Roura Capellera v. Spain, March 13, 2018. Instead, it relies on Christian Democratic People’s Party v. Moldova, February 2, 2010, which is not only less recent, but deals with flag burning in a radically different context than the one at hand.

This latter point is recognized by the CC itself,Footnote ⁸⁶ thus constituting an unnecessary reference that brings little clarity to the case. It is incomprehensible that the CC does not focus its attention on Stern Taulats and Roura Capellera v. Spain, March 13 2018, as a recent international precedent that is mandatorily applicable because: 1) The scenario is perfectly transferable to the present case; 2) it is the most recent and up-to-date ECtHR case law on the subject; and 3) it was a case in which Spain had already been condemned for violation of freedom of expression. This is no trivial matter, as such condemnation should serve to ensure that the same mistakes are not repeated.

Therefore, the CC dismissed Fragoso Dacosta’s constitutional appeal on the grounds that there was no violation of his freedom of expression or ideological freedom.

This ruling by the CC already allows us to anticipate some concluding ideas. This case not only carries serious consequences considering the specific facts, but also reveals a worrying tendency to protect national symbols at the expense of the free dissemination of ideas that are critical of them. This anti-liberal stance taken by the CC—shared by the lower courts—appears to be heavily influenced by the unquestioned Article 543 PC.

As has already been pointed out, judges are bound by the rule of law and cannot simply disregard a criminal offence that formally applies to a case. The central legal issue, then, is whether the offence can be extended to cover this situation—an issue open to differing interpretations, as reflected in this case. The divergence between the majority opinion and the dissenting opinions illustrates this.

The fundamental debate that arguably should have been raised to prevent future cases of this kind relates to the need to abolish the criminal offences punishing insults to the Crown—Article 490.3 PC—and offences against national symbols such as the flag or the anthem—Article 543 PC.

What options did the CC have to support such a shift in this direction? We believe there are two:

1. 1. To resolve the constitutional appeal but doing so through a broad interpretation favoring freedom of expression, as developed in the dissenting opinions. At the same time, the CC could have left the door open, inviting the legislature to reconsider the repeal or amendment of the aforementioned criminal provisions.

2. 2. Perhaps more interesting, although more complex, the CC could have raised an internal question of constitutionality. This was a theoretically viable route that the Court could have pursued.

In Spain, the CC has jurisdiction to hear constitutional appeals brought by individuals who consider that one of their fundamental rights has been violated. However, when such a case involves the application of a legal provision that may be the source of the alleged infringement, the Court can raise what is known as an internal question of constitutionality.Footnote ⁸⁷ Through this mechanism, the ongoing constitutional appeal proceedings are suspended while the Court addresses the abstract constitutionality of the potentially problematic legal provision. Once that internal question is resolved—which could result in the annulment of the provision in question—the Court would resolve the original constitutional appeal.

While this was a theoretically viable option in the present case, it was not a plausible one given the specific circumstances. This is because raising an internal question requires agreement within the chamber handling the constitutional appeal in order to refer the matter to the full Court. Several factors make this route impracticable in the present case: 1) The disagreement among the judges themselves regarding the interpretation of the case. 2) The reasoning presented by the CC’s majority, which, in its analysis of the “scope of adjudication,” makes it clear that what is being challenged is not the criminal provision in the abstract, but rather how it was applied to the case in question in connection with the exercise of fundamental rights.

Two further arguments reinforce the lack of plausibility of this option: On the one hand, the Court points out that the offence established in Article 543 PC also exists in other European PC, some of which even impose more severe penalties, with illustrative references to the German, French, and Italian codes.

On the other hand, the Court maintains that:

Aside from this abstractly considered possibility, it was noted above that the core issue raised by the case is essentially interpretative in nature, concerning the applicable criminal offence. This is evidenced by the interpretative disparity between the majority ruling of the CC and the dissenting opinions of the judges who disagreed with it. We highlight this aspect because, in our view, it possibly reflects another reason that helps to understand the anti-liberal approach adopted by the CC in this case. We refer here to the political sensitivity of the CC’s judges. It cannot be overlooked that when the contingent majority of the Court at a given time leans toward a conservative orientation—as is the case here—the severity in repressing certain expressions against national symbols becomes more pronounced.Footnote ⁸⁹

Be that as it may, this ruling represents a regrettable setback in the protection of freedom of expression in Spain. We shall now turn to examine the highly relevant dissenting opinions issued in response to the judgment.

V. The Separate Opinions to STC 190/2020, December 15. Chronicle of a Foretold Condemnation of Spain by the ECtHR

STC 190/2020, December 15, dismissed Fragoso Dacosta’s appeal by a narrow vote of six to five. Because a detailed analysis of each separate vote would unnecessarily lengthen our Article, we believe it is more appropriate to organize our analysis around a number of key issues raised in the separate opinions. This is possible to the extent that the five dissenting judges reached the common conclusion that the CC should have upheld the appeal on the grounds of violation of the applicant’s freedom of expression and ideological freedom.

More specifically, we intend to elaborate on those arguments in the separate opinions that are most relevant to the issues discussed thus far, in other words: the interpretation of rights in accordance with the international context, as per Article 10.2 SC, and the evolutionary interpretation of rights in accordance with the principle of favor libertatis, as well as their application to the case at hand. In this way, we will be able to assess the “practical” utility of the separate opinions, and also the extent to which they may provide important clues about the reasoning of the ECtHR in the future, insofar as they apply its doctrine.

It is no coincidence that the four separate opinions to the judgment, signed by the five dissenting judges,Footnote ⁹⁰ share a common argument: the principle of interpreting rights in accordance with the international context. In formulating their opinions, the judges refer to ECtHR case law, as per Article 10.2 SC, as detailed below.

Interestingly, several dissenting judges base their position on other separate opinions issued in previous similar cases in which Spain was subsequently condemned by the ECtHR. As Judge Roca Trías recalls in her separate opinion, this was the case in STC 177/2015, July 22, ECLI:ES:TC:2015:177, in which the ECtHR ultimately condemned Spain in Stern Taulats and Roura Capellera v. Spain, March 13, 2018.Footnote ⁹¹ As we will see in the next section, history is repeating itself in this new case, in a sense of déjà vu for the dissenting judges.

All of the judges rely on the aforementioned ECtHR judgment in Stern Taulats and Roura Capellera v. Spain, March 13, 2018, and use it as a reference to structure and formulate their arguments. They do so not only on the basis of the principles set out in that judgment so as to apply them to the specific case,Footnote ⁹² but also on the basis of their enforceability under Article 10.2 SC. In this sense, the dissenting opinion of Judge Ollero Tassara is instructive. While expressing his strong disapproval of the statements made by the applicant and his great affection for “our flag and what it means,” he considers that no other solution is possible than the one derived from the interpretation of Article 10.2 SC.Footnote ⁹³

This brings us to a key pillar in the formulation of separate opinions and the very purpose of this Article. The fundamental rights enshrined in the Constitution must be interpreted in accordance with the international context by virtue of Article 10.2 SC, which requires compliance with the ECHR and other relevant treaties in matters of rights.

Nevertheless, it is no surprise that the separate opinions emphasize Stern Taulats and Roura Capellera v. Spain, March 13, 2018, as well as other relevant ECtHR rulings on freedom of expression. The judges’ interpretation is heavily influenced by Article 10.2 SC. For example, the separate opinion of Judges Xiol Ríos and Balaguer Callejón, in line with the canon of judgment established by the ECtHR, emphasizes “the primacy of the right to freedom of expression over the right to respect for the symbol, because such acts are a way of expressing an opinion on a matter of the utmost public interest.”Footnote ⁹⁴ The judges reach this conclusion stating that “there is no doubt that such an interpretation is not only possible, but mandated by Article 10.2 SC.”Footnote ⁹⁵

In the same vein, Conde-Pumpido, in his separate opinion, states that Article 10.2 SC is “an indispensable instrument for the interpretation and application of the norms relating to fundamental rights, in order to determine their meaning and scope.”Footnote ⁹⁶ This leads the judge to argue that a simple assessment of Stern Taulats and Roura Capellera v. Spain, March 13, 2018, “should have led to the appeal being upheld. Suffice it to say that the expressions of contempt for the flag … should be placed in the context of political criticism of the military authorities responsible for the premises that were the scene of the labor dispute…. ”Footnote ⁹⁷

In light of the following, and in direct connection to the purpose of this Article, the principle of favor libertatis must be taken into account as a guiding principle in the interpretation of rights. Although this principle is not explicitly mentioned in the separate opinions, as we have seen, there are references to the interpretation of rights in accordance with the international context which, in this case, equates to the most favorable interpretation for the exercise of freedom of expression. In other words, in this case, the interpretation of rights according to the international context is essentially in line with the favor libertatis principle. However, it is worth highlighting the separate opinion of Conde-Pumpido, which, without explicitly referring to this principle, alludes to it by stating that “the widest possible perspective on the exercise of ideological freedom should have led us to a favorable conclusion that is the opposite of the final decision.”Footnote ⁹⁸

So far, our discussion has covered the general interpretive criteria that led the judges in their separate opinions to disagree with the majority decision. In what follows, we will summarize some of the key ideas expressed in the separate opinions that serve as counterarguments to the majority decision.

1. 1. The applicant’s statements are offensive, but because of the context and circumstances in which they were made, they must be protected by freedom of expression. Footnote ⁹⁹ First, the statements were made against a symbol of the State, in the context of a labor dispute aimed at drawing attention to the authorities’ inaction with respect to the workers’ unpaid wages. Second, the statements were made in the applicant’s capacity as a union representative. Although this point is overlooked in the arguments of the majority of the CC in its judgment, it is not irrelevant to the assessment of the circumstances of the case.

2. 2. There is no hate speech or incitement to violence.Footnote ¹⁰⁰ The comments are offensive, but their sole purpose was to express dissatisfaction with the non-payment of workers’ wages and to draw attention to the authorities’ inaction in the dispute. These comments were intended to put pressure on the Ministry of Defense to intervene to resolve the dispute, not to send a “message of belligerence,”Footnote ¹⁰¹ as argued by the majority. Moreover, the statements in question did not pose a threat to public order or incite violence, as any influence the applicant may have had was minimized by the disapproval expressed by some of those present in response to the statements.

3. 3. The offensive statements were not made out of context; they were related to labor claims made during the strike and protests that were taking place.Footnote ¹⁰² There is no merit to the majority’s argument that the statements are not legitimate because they are not germane to the ends to be achieved. In particular, the comment “here you have the silence of the fucking flag”Footnote ¹⁰³ should be seen in the context of an earlier event that the CC does not take into account. The military authorities had asked the Galician Unions Confederacy to encourage those gathered to tone down the confrontation, arguing that the protesters had shown a lack of respect for the flag by shouting slogans such as: “The flag does not pay the bills.”Footnote ¹⁰⁴ This, combined with the inaction of the authorities despite pressure from those gathered to draw their attention and urge them to intervene to help resolve the labor dispute, created a frustrating climate that led to the applicant’s offensive statements during the military ceremony.Footnote ¹⁰⁵

4. 4. Speech should not be punished for opposing political symbols per se, because our legal system does not contemplate a model of militant democracy. Footnote ¹⁰⁶ This prevents any supposed requirement of adherence to symbols, the legal system, or the Constitution, even if they are expressly recognized by the Constitution, as in the case of the flag, which is constitutionally recognized as a symbol of the nation in Article 4 SC. Moreover, this could have a chilling effect on the exercise of freedom of expression and ideological freedom in contexts where such freedoms should be particularly cherished for their role in shaping free public opinion on matters of interest that advance democracy. Nevertheless, it is important to remember that the pluralism inherent in any democratic society requires that the position of dissidents be respected.

The issues highlighted are the key arguments advanced in the separate opinions, which perfectly convey the shortcomings of the decision reached by a narrow majority of the CC. When the majority disregards the Constitution’s sole interpretive mandate on fundamental rights, we are compelled to endorse the view that this failure is somehow compensated for by the arguments contained in the separate opinions.

Later, we will examine the extent to which the reasoning in the separate opinions to STC 190/2020, December 15 aligns with or anticipates that of the ECtHR. Before turning to the position adopted by the ECtHR in this case, it is worth highlighting the arguments put forward by the Spanish Government before the ECtHR in support of its stance.

VI. The Position of the Spanish Government Before the ECtHR in the Fragoso Dacosta Case

Regarding the submissions made by the Spanish Government in the Fragoso Dacosta case before the ECtHR, it should be noted that the Government accepted that the conviction imposed on the applicant constituted an interference with his right to freedom of expression. However, it argued that such interference was “prescribed by law”Footnote ¹⁰⁷ and pursued a legitimate aim, namely, the protection of a symbol common to all members of a nation—its flag or national emblem.Footnote ¹⁰⁸

Furthermore, the Spanish Government contended that “the domestic courts had duly taken into account the circumstances of the case and concluded that the interference had been proportionate and therefore necessary in a democratic society.”Footnote ¹⁰⁹ To support its position, the Government submitted a report on the existence of similar offences within the legal systems of other Council of Europe member states. It also noted its view that the fine imposed was very unlikely to be converted into a custodial sentence.Footnote ¹¹⁰

VII. The ECtHR’s Judgment in Fragoso Dacosta v. Spain, June 8, 2023

The ECtHR ruling in Fragoso Dacosta v. Spain, June 8, 2023, chronicles the tale of the condemnation that was to come. This is clearly reflected in the separate opinions to STC 190/2020, December 15, which foreshadowed the ECtHR’s impending condemnation of Spain as a result of this judgment.

Given the ECtHR’s case law on this issue, it was entirely foreseeable that Fragoso Dacosta would appeal to the ECtHR for violation of his freedom of expression after his claims were dismissed by the CC.

The ECtHR’s findings in this case are consistent with its previous case law on freedom of expression. The first point raised by the ECtHR concerns the question of whether interference with freedom of expression is prescribed by law. This leads the ECHR to highlight the “choice made by the Spanish Parliament” to provide for “the criminalization of certain kinds of conduct that are capable of insulting the symbols of Spain and are considered damaging to the sentiments of Spanish society.”Footnote ¹¹¹ This is an option available to the Spanish legislature that has not yet been discussed, but it is relevant here because it opens the discussion on the relevance of Article 543 PC. This provision criminalizes “offense or insults conveyed publicly, by means of utterances, writing, or actions, against Spain, its Autonomous Communities, or the symbols or emblems thereof.”Footnote ¹¹²

This brief comment on the “choice made by the Spanish Parliament”Footnote ¹¹³ about the criminalization of the conduct prescribed under Article 543 PC gives us the opportunity to reflect on the issues surrounding criminal law intervention with regard to certain kinds of conduct that may be objectionable, as was the case here. That said, the point made by the ECtHR dovetails perfectly with the separate opinion written by Judges Xiol Ríos and Balaguer Callejón to STC 190/2020, December 15. Reflecting on this issue, they express their concern about the proliferation of crimes of expression in criminal law, together with an interpretation that leaves room for loose interpretation and the frequent use of the criminal process to punish certain expressions that could be sanctioned by less severe state mechanisms.Footnote ¹¹⁴

As the judges point out, there seems to be a danger of creating “the perception of a submissive and disciplined society, which is not consistent with the proper exercise of criticism in a democratic society.”Footnote ¹¹⁵

Having briefly touched on the requirement that interference with freedom of expression be prescribed by law, the ECtHR proceeds to assess whether such interference pursues a legitimate aim. This requirement is understood to have been met because it is “a symbol common to all members of the nation,” which corresponds to the legitimate aim of “protecting the ‘rights of others,’ as referred to in the second paragraph of Article 10…. ”Footnote ¹¹⁶

The ECtHR goes on to analyze whether the interference was necessary in a democratic society, taking into account the now familiar circumstances of the case. In this respect, the ECtHR narrows the issue to the CC’s decision that the union representative’s offensive statements were not protected. The ECtHR recalls that the CC considered such statements to be an insult to a national symbol, the flag, showing hostility and disrespect towards that symbol, where such statements were unnecessary and unconnected with the objective of ensuring the payment of wages.

In response, the ECtHR refers to its long-established position on freedom of expression, recalling that freedom of expression also extends to ideas “that offend, shock or disturb the State or any other sector of the population.”Footnote ¹¹⁷ The ECtHR accepts the “provocative”Footnote ¹¹⁸ nature of the applicant’s language but contests, however, that there was any evidence of public disorder or hate speech as a result of the statements made.Footnote ¹¹⁹ The ECtHR understands that the CC “did not examine whether there were sufficient grounds to find that his statements amounted to hate speech … or the capacity of the statements to lead to harmful consequences.”Footnote ¹²⁰

Here the ECtHR introduces a nuance. The Strasbourg Court acknowledges its willingness to accept that while provocative statements directed against a national symbol “may hurt people’s feelings, the damage thus caused, if any, is of a different nature compared with that caused by attacking the reputation of a named individual.”Footnote ¹²¹ However, according to the ECtHR’s judgment, the applicant’s controversial statements were “not directed at any person or group of persons”Footnote ¹²² and therefore the subjective humiliation felt by the military personnel present at the event, relied on by both the Provincial Court and the CC, is not relevant for the purposes of the present case.Footnote ¹²³ The Court also acknowledges that the statements “did not result in any personal or material damage.”Footnote ¹²⁴

The ECtHR goes on to disagree with the CC’s assertion that there was no causal link between the means and the end. In other words, it disagreed with the attempt to claim that the statements made had nothing to do with the protests that were taking place.Footnote ¹²⁵ It therefore refers to all the circumstances of the case and places these statements squarely within the context of the military authorities’ request to the Unions Confederacy to “tone down”Footnote ¹²⁶ the protest during the solemn ceremony. This proposal was clearly frustrating for the applicant, given the silence of the authorities in the face of pressure from the workers and union representatives to help resolve the dispute with the company. In this sense, the applicant’s statements could be considered as “criticism and an expression of protest and dissatisfaction towards the military staff as the employers of the cleaning company employees”Footnote ¹²⁷ and not as a mere insult intended purely to humiliate.Footnote ¹²⁸

As to the context, the ECtHR notes that the applicant was a union representative acting during a protest over unpaid wages. For this reason, it accepts “that there was a debate on a matter of general interest for the employees of the cleaning company,”Footnote ¹²⁹ and reiterates that “the members of a trade union must be able to express to their employer the demands by which they seek to improve the situation of workers in their company.”Footnote ¹³⁰

As a consequence of the foregoing, the ECtHR condemned Spain for violation of freedom of expression, as guaranteed by Article 10 ECHR.

In this case, it is the separate opinions that reflect the ECtHR’s jurisprudence within the domestic context. It is precisely in situations like this where the interpretative value of separate opinions becomes especially apparent—particularly when the majority decision disregards the ECtHR’s well-established case law. This is evident in the ECtHR’s judgment itself, which reiterates arguments contained in the separate opinions, even though such reasoning belongs to the Court of Strasbourg’s own doctrine.

This suggests that, just as the separate opinions issued by CC judges may provide an argumentative roadmap for applicants before the ECtHR, they may also serve as a useful interpretative tool for the Strasbourg Court in areas where no settled case law yet exists.