A. Introduction
This Article opens with a review of general dogmatic issues, such as the integration and interpretation of the European Convention of Human Rights (ECHR) and the EU Charter of Fundamental Rights (CFREU) within the Spanish legal system, and the relevant role that dissenting opinions by constitutional judges may play complementing judicial dialogue and constitutional interpretation.
The Article aims to highlight the extent to which such dissenting opinions can contribute to the interpretation of rights in two ways: first, internally, within the Spanish Constitutional Court (CC) itself, where minority reasoning expressed in separate opinions may become the argumentative basis for future evolutionary interpretations adopted by the CC; and second—and of greater relevance for the purposes of this study—to enhance or complement the external dialogue with other courts, with particular reference to the European Court of Human Rights (ECtHR).
It is worth noting that dissenting opinion, meanwhile, implies “taking stock of where the ongoing tension between constitutional law and reality is heading.”Footnote 1 As we will see, it contributes to the discussion of the evolutionary interpretation of rights by pointing out other possible interpretations.Footnote 2 Therefore, while the interpretation expressed in the dissenting opinion reflects the minority opinion of the CC, its potential should not be underestimated, as it may act as a bridge toward new avenues for advancing the integration and harmonization of fundamental rights.
These general premises are channeled in this Article through the study of a specific right: freedom of expression in the Fragoso Dacosta case. The decision to focus on this right is twofold, as further justified throughout the Article. On the one hand, freedom of expression is a right that has been widely upheld by both Spanish constitutional doctrine and the case law of the ECtHR, yet it remains subject to constant challenges and tensions arising from the evolving communicative paradigm. On the other hand, it is a particularly suitable right for analysis from a multilevel constitutional perspective, as it reveals the complexities of this methodology, particularly through the interpretive disagreements between the Spanish CC and the ECtHR, as evidenced in the case under examination.
In addition, we have chosen to focus the analysis of this right through Fragoso Dacosta case because its characteristics allow for the inclusion of valuable nuances to this Article. The case arises from a set of protest statements made by a trade union representative against a national symbol—the Spanish flag—in the context of a labor dispute, which ultimately led to Spain being condemned by the ECtHR for a violation of Article 10 ECHR.
Using this case as a framework to examine freedom of expression has not only allowed us to address the aforementioned dogmatic issues. It has also provided the opportunity to formulate a series of general and case-specific critical conclusions and diagnostic reflections regarding the position adopted by the Spanish CC. Moreover, it enables a deeper exploration of the concerning trend of insufficient engagement with ECtHR case law around freedom of expression by the CC.
B. General Reference to the Interpretation and Integration of the European Convention on Human Rights and the Charter of Fundamental Rights in Spain
We begin with the premise that fundamental rights are “central categories of constitutionalism”Footnote 3 that call for a contemporary perspective in their contextual application in order to ensure their continued effectiveness. A multi-level analysis of rights requires a flexible approach that allows the scope of rights to be expanded in each constitutional space, thereby helping to determine their essential content and actual reality. Such a perspective allows for a harmonious interpretation of rights across a number of converging dimensions, such as the international and supranational level, as well as the domestic level specific to each State.Footnote 4
It is worth highlighting the important place of constitutional interpretation in matters of rights bearing in mind that rights are not carved in stone, or definitive and immutable entitlements, but rather subjective claims that are dictated by the demands of the times. As such, constitutional norms must work in tandem with the evolutionary interpretation of fundamental rights.Footnote 5 This idea resonates with Cámara Villar’s thought-provoking reflection on the notion of rights as a “construct.” Such a description portrays rights as “fragile cultural products at the service of individuals and societies, peaceful coexistence, and freedom, whose legal and political status is continually evolving and achieved through the efforts of individuals, social groups, and political entities to gain access to the material and immaterial goods that sustain life.”Footnote 6
In a multi-level context, there is a tendency to harmonize common guidelines on rights matters in order to arrive at a lowest common denominator.Footnote 7 However, the truth is that this is not always an easy task. This leads to examples of “variable geometry,”Footnote 8 where different courts interpret rights in ways that do not always lead to the same outcome.Footnote 9 As Neuman points out, we must bear in mind that “[j]uxtaposing the constitutional and international systems with regard to a right that they both protect (such as freedom of expression, or fair trial) multiplies the possibilities for competing influences on the interpretation of the right.”Footnote 10 Thus, the inherent characteristics of different legal systems, each with their own rules and objectives, which in turn are guaranteed by their own courts, contribute to a tension between harmonization and the emergence of interpretive disagreements between these systems. An example of this is the dialogue between the ECtHR and the CC on the content and scope of freedom of expression.Footnote 11 This is indeed a case where there are differences between the two courts,Footnote 12 as we will see later concerning Fragoso Dacosta case.
Nonetheless, in order to better achieve the aim of this Article it is first necessary to briefly clarify how the ECHR and the CFREU are interpreted and incorporated, respectively, into the Spanish legal system.
It is indisputable that both instruments possess binding legal force within the Spanish legal order. However, the mechanisms of reception and incorporation through which they become part of domestic law differ.
Regarding the ECHR, reference must be made to Article 96 of the Spanish Constitution (SC), which constitutes the channel for the reception of conventional international law into the domestic legal order. This provision establishes that the norms contained in international treaties are binding upon Spain and become part of domestic law from the moment they are officially published in the State Official Gazette (BOE), provided that the treaties have been validly concluded.
This entails a significant consequence: from that moment onwards, the treaty provisions are capable of directly generating rights and obligations and may be invoked before the courts. As can be inferred, Article 96 SC reflects Spain’s adherence to a monist position regarding the relationship between international and domestic law. Nevertheless, as Mangas Martín has pointed out, this is a form of “moderate monism,” as it requires the official publication of the international treaty.Footnote 13
This constitutes the mode of incorporation of the ECHR into Spanish law. However, the provision does not specify how the rights enshrined in an international treaty are to be interpreted domestically. For this reason, reference to Article 10.2 SC becomes essential insofar as it governs the interpretation of the rights recognized in the SC.
This provision incorporates a hermeneutical clause of the rights recognized in the Spanish Constitution. Specifically, it is an opening clause that requires interpreting rights in accordance with the international context. In this respect, Article 10.2 SC aids in “choosing the most rights-friendly interpretation and can work hand in hand with their evolutionary interpretation,”Footnote 14 helping to flesh out the content of the rights enshrined in the Constitution.Footnote 15 It also has the enormous potential to create a space where constitutional norms can be integratedFootnote 16 and adapted to reality in matters of rights.Footnote 17 As Gómez Fernández has highlighted, “this precept is the paradigmatic example of a mechanism of collaboration between constitutional law and international law, developed, formulated, and imposed by the constituent power in an express manner.”Footnote 18
The provision has been well regarded in Spanish case law and legal doctrine for the interpretative flexibility it affords the SC. However, admittedly, this principle does have its limitations, as recognized by the CC itself, in that it does not grant the Court the capacity to create new rights that have not been previously recognized by the Constitution, nor does it allow international treaties on rights to be used as an autonomous parameter of the legitimacy of domestic norms regarding rights.Footnote 19 In any case, such limitations on the scope granted by the CC to Article 10.2 SC do not preclude the articulation, through this provision, of new expressions of fundamental rights already enshrined in the SC.
As I have previously argued in other works
These limitations are clearly reflected in the narrow passage that divides the debate between the inadmissibility of creating new fundamental rights and the admissibility of updating those that already exist. In this regard, case law plays a particularly prominent role within this hermeneutic framework, with some instances in which Article 10.2 SC has been used by the CC to incorporate the doctrine of the ECtHR into the domestic legal order, and others in which, by contrast, this has not been the case.Footnote 20
Notwithstanding these limitations, however, the provision takes on a special significance from an interpretive standpoint.Footnote 21 It should be noted that this provision reinforces the normative character of the ECHR, Article 96 SC, through interpretative means. To this, one may also add the fact that the CC itself has emphasized the importance of ECtHR case law in reconciling the interpretation of the fundamental rights enshrined in the Constitution with international treaties, with particular reference to the ECHR.Footnote 22
In summary: the ECHR is a binding international treaty for Spain in the field of fundamental rights, and it is applicable through Article 96 SC, without prejudice to the fact that, in addition, Article 10.2 SC requires that fundamental rights be interpreted, in this case, in accordance with the ECHR.
As regards the incorporation of the CFREU into Spanish domestic law, it must be considered that this instrument forms part of the primary law of the EU. Accordingly, its mechanism of incorporation is through Article 93 SC, the provision under which Spain conferred powers to the EU. In any event, the Charter constitutes a legally binding instrument for Spain and is directly applicable before national courts, enjoying primacy and direct effect whenever the case involves the application of EU law.Footnote 23
C. Constitutional Interpretation and Normativity in a Changing Digital Society. Freedom of Expression Under Debate
The technological landscape and the ensuing challenges to many rights raise the question of the extent to which the corresponding social changes, especially those related to the communicative paradigm, can or should be reflected at the constitutional normative level, bearing in mind the constitutional rigidity that stems from its normativity.
The balancing act between normativity and constitutional adaptability in matters of rights reflects the tension inherent in two opposing trends in the legal system, one static and normative, the other dynamic and evolutionary.Footnote 24 In Raz’s words “[i]nterpretation … lives in spaces where fidelity to an original and openness to novelty mix.”Footnote 25 It is in this tension, and in order to prevent the Constitution from proving incapable of giving effect to its provisions, that an evolutionary interpretation of the Constitution makes sense.Footnote 26 And, this to the extent that
[C]onstitutional decisions are moral decisions that have to be morally justified, and the moral considerations that apply include both fidelity to the law of the constitution as it is, arising out of concern for continuity, and openness to its shortcomings and to injustices its application may yield in certain cases, which leads to openness to the need to develop and modify it.Footnote 27
It is widely recognized that not every innovation is permissible by interpretation when that interpretation contradicts the law itself and runs the risk of provoking an illegitimate constitutional mutation. Not every innovation, however, should be seen as synonymous with illegitimate mutation.Footnote 28 In all cases, the underlying question concerns the limits of constitutional mutation. In other words, “how far can a text be stretched without falling into interpretive excess?”Footnote 29 As noted by Hesse, constitutional mutation must lie at the point at which there is no more room for interpretation as this would contradict the text of the law.Footnote 30 Accordingly, with the exception of these situations, there is a place for new dynamic interpretations in line with social changes. It is here, we believe, that the evolutionary interpretation of rights truly comes into its own. This is all the more important given the rapidly changing, innovative, open, and fragmentary nature of the technological and digital context. The profound changes that have accompanied the digital paradigm have accentuated the need for an evolutionary interpretation of rights in order to guarantee their effectiveness and, above all, to ensure the extension of constitutional norms in this context. Therefore, “the shift from normativity to normalcy” must involve “defending the Constitution through interpretations that maintain its normative effectiveness, even when circumstances change and a new interpretation is needed to align the Constitution with current reality.”Footnote 31
At this point, it is worth mentioning two principles that we consider essential to the study of the evolutionary interpretation of rights. The first is the principle of favor libertatis, that is, the choice of the most favorable interpretation for the exercise of rights. This principle supports the evolutionary interpretation of rights, insofar as the full enjoyment and effectiveness of a right necessitates its adaptation to new and unforeseen realities that are worthy of protection. Therefore, “the creation of rights, the amplification of the content of existing rights, or the extension of the scope of protection are guided by the principle of favor libertatis, which often takes the form of an evolutionary interpretation.”Footnote 32
Secondly, it is worth mentioning the principle of interpreting rights in accordance with the international context, as enshrined in Article 10.2 SC, which has already been discussed in the previous section.
The general ideas presented invite us to contextualize the evolutionary interpretation of rights within the digital context, as it has become the habitual environment for the exercise of many rights today. There is perhaps no better example than the right to freedom of expression to illustrate this need. Although this right is well established in legal doctrine, both national and international, its boundaries and limits are constantly being challenged within the digital paradigm.
We aim for the study of this fundamental right to guide our work and, although it may seem paradoxical, we approach it through a specific case that arises in an analog context: the Fragoso Dacosta case.
To what extent does this case contribute to the debate on the contours of freedom of expression in the digital environment?
As will be seen, the case analyzed in this work concerns the limits of the exercise of freedom of expression when offensive expressions are made against national symbols in specific contexts such as labor protests. Although the case concerns a statement made during a physical event, the type of language used, namely: “The fucking flag must be set on fire,” is entirely transposable to the digital context, where provocative or offensive expressions abound. We argue that cases like this one may result in a chilling effect on the exercise of freedom of expression, particularly when, in the digital environment, the use of informal and protest language is commonplace. Therefore, repressing protest expressions in the physical world may set restrictive precedents for their exercise in the virtual world. Conversely, an adequate standard of protection for freedom of expression in cases such as this one, even when occurring in the analog world, could serve as a reference point for safeguarding this right in virtual spaces.
Another point worth highlighting is that, in the digital context, phenomena such as polarization, social hypersensitivity, cancel culture, and the uncompromising defense of certain discourses, symbols, or identities seem to be exacerbated. This is a particularly concerning phenomenon when accompanied by the excessive use of the State’s punitive power to suppress dissenting or minority voices under the pretext of protecting collective sensitivities.
Nevertheless, the jurisprudence of the ECtHR acts as an integrative interpretative framework within the multilevel context and supports an evolutionary interpretation of the rights enshrined in the ECHR.Footnote 33 Therefore, revisiting the general interpretative principles mentioned earlier, it should be emphasized that the ECtHR’s conviction in the Fragoso Dacosta case serves as a warning regarding the need to align domestic law with these standards.
Ultimately, although the Fragoso Dacosta case unfolds in an analog environment, it has significant potential to inform the challenges that freedom of expression may face in the digital world. Provocative language, criticism of national symbols, and the defense of dissenting claims against the social majority now transcend the physical sphere and take on new dimensions in the virtual realm. This underscores the need for a dynamic interpretation of freedom of expression in this context. The goal is none other than to ensure that this freedom continues to be, for the Member States of the Council of Europe—and for Spain—that “important freedom” for everybody.Footnote 34
D. Separate Opinions and Fundamental Rights in the Practice of the Spanish Constitutional Court
In this section, we will briefly consider the interpretive function of separate opinions in the abstract. As noted above, the separate opinion is related to the value of constitutional interpretation and the obvious possibility that it may lead to disagreement with the majority decision of the Court. In such cases, it may be said that “dissent is conducive to the development of evolutionary jurisprudence, in addition to being a vehicle for the expression of minority opinions within a collegiate and pluralistic body.”Footnote 35
We believe it is worth highlighting the role of separate opinions as an alternative to initiate or continue a dialogue with other courts, particularly the ECtHR. This becomes even more evident when the dissenting arguments in the separate opinions are later reiterated in the ECtHR’s interpretation of the case. Dissenting opinions not only provide additional arguments on the most complex areas of interpretation, but they also offer clues as to where the ECtHR’s reasoning might lead if it were called upon to hear the case and disagreed with the CC’s decision.
The significance of the separate opinion goes far beyond any narrow and formalistic approach that could be derived from a reading of Article 164 SC and Article 90.2 of Organic Law 2/1979, October 3, 1979, on the Constitutional Court (LOTC). Article 164 SC refers to the obligation to publish the judgments of the CC together with any separate opinions. Likewise, Article 90.2 LOTC reiterates the requirement to publish separate opinions together with the judgment in the BOE. It also expressly states the right of the Court’s judges to disagree with both the decision and the reasoning behind it, provided that they have argued during deliberations. The Constitution is silent on the significance of separate opinions, and while the LOTC adds a little more information, it still tends toward a more formalistic treatment. However, this is no impediment to a more in-depth reading. Note that the mere constitutionalization of the separate opinion and the LOTC’s explicit recognition of the possibility of a “dissenting opinion” at the heart of the CC, in any case, denote a major substantive issue. It is a sign of “the collapse of the traditional notion of interpretation as a logical and perfectly predictable line of reasoning leading to the one and only correct solution.”Footnote 36
We therefore hold that constitutional interpretation is “extremely sensitive to nuance because of its intimate relationship to the reality governed by constitutional norms.”Footnote 37 At the same time, it assumes that “to constitutionalize pluralism is to constitutionalize dissent.”Footnote 38 This notion is essential in an “open society of constitutional interpreters”Footnote 39 in which the significance of dissenting separate opinions is enhanced, fostering a more robust constitutionalism and a more rigorous and refined interpretation.Footnote 40
We refer to Häberle’s theory in connection with dissenting opinions for the following reason: although dissenting judges are, formally speaking, internal agents of constitutional interpretation in the classical sense; and it could therefore be legitimately argued that interpretation remains confined to a “closed society,”Footnote 41 we believe that an alternative reading is possible. Häberle states that “those who ‘live’ the norm also (co-)interpret it. Each individual update of the Constitution is, at the very least, a fragment of anticipated constitutional interpretation.”Footnote 42 This leads us to assert that, when the arguments contained in dissenting opinions are invoked by the parties in a constitutional proceeding, or even before the ECtHR, to support their claims, a bridge is formed that transforms the closed society into an open one. In such cases, the dissenting opinion functions as an indirect bridge to the open society of constitutional interpreters, insofar as its reasoning is invoked by the parties in a proceeding to support their claims. In this sense, it should be noted that this counterargument may also favor the very quality of the majority’s decisions.Footnote 43 As well as facilitating a better understanding of the result obtained, it leads to the legitimacy of the decision through the public’s confidence in justice.Footnote 44 Regarding this last idea, Wittig’s reflection is expressive when she points out that:
[T]he power feeds on the sum of the judges’ individual assessments of a case. Thus, if it is important to enhance the understanding of how and why a court exerts its power, it is necessary to study the parts that add up to the final result. In other words: We have to analyze intra-court processes and dynamics in order to gain knowledge on why a decision was cast in a particular way.Footnote 45
Here we would like to emphasize two key ideas: 1) “There is no single interpretation of constitutional norms … nor is there one single absolute canon of interpretation for all time.” 2) Dissenting opinions “show that a number of interpretations can coexist, each with a claim to be equally and legally valid, and even challenge conventional and commonly held opinion, especially with an eye to the future.”Footnote 46
We could not agree more with this author when he says that the separate vote is a link in the process of constitutional renewal. We believe that this role should not be underestimated, as constitutional renewal is fundamental to a constitution that lives at all times by and for the changing society it seeks to protect.Footnote 47
E. A Specific Example, Freedom of Expression in the Case of Fragoso Dacosta
As mentioned in the introduction, the reason for focusing the Article on this right is twofold. First, freedom of expression is a clear example of a right that is being redefined in the context of the current communicative paradigm. This is evidenced by the fact that, to a large extent, we now exercise this right through social media, thereby multiplying the challenges and emerging issues involved in ensuring its proper protection; yet, paradoxically, problems regarding its application and interpretation continue to persist in analog contexts. Second, and perhaps as a result of the previous point, it exemplifies the existence of a certain degree of variability in the application of different interpretive standards. The underlying problem with this interpretive variability is that it is a source of clear conflict, sometimes culminating in condemnations of the Spanish State for failing to comply with the provisions of the ECHR as interpreted by the ECtHR. This is what happened in the case of Fragoso Dacosta, which we have analyzed in relation to freedom of expression,Footnote 48 as guaranteed by Article 10 ECHR and Article 20.1.d SC.
It should be stressed that the following is not intended to be an in-depth dogmatic analysis of freedom of expression,Footnote 49 which could well be the subject of a separate paper. While the general doctrine established by the CC on freedom of expression will be outlined, the main objective is to highlight in relation to STC 190/2020, 15 December, case of Fragoso Dacosta, the utility of the CC’s separate opinions in order to situate them within the interpretive debate on freedom of expression in a multi-level context.
It is therefore necessary to look more closely at the relevant separate dissenting opinions contained in the judgment to determine how they might help to correct or compensate for the failure of the CC to interpret the rights in this case in accordance with the international context, pursuant to Article 10.2 SC. We will also endeavor to describe the negative consequences of such non-compliance and the extent to which the ECtHR later upholds in its judgment that the arguments of the judges who comprised the CC’s minority opinion were the chronicle of a foretold condemnation, as we will see later.
In light of the above, and in order to provide a clearer understanding of the case under analysis, this section will be structured as follows: first, we will refer to the circumstances giving rise to the case for a violation of freedom of expression; second, in order to better understand the controversy within the framework of domestic law, we consider it useful to set out the reasoning adopted by the lower courts in the domestic proceedings to convict the appellant for the crime of insulting Spain, as well as the opposing position advanced by the Public Prosecutor, who supported the admission of the constitutional appeal; third, we will discuss, as relevant precedent, the ECtHR judgment in Stern Taulats and Roura Capellera v. Spain, which was directed against the Spanish state and should be taken into account in resolving the present case; fourth, we will examine the general doctrine of the CC on freedom of expression and how it applies that doctrine to this case; fifth, we will present the dissenting position of the judges who issued separate opinions in response to the majority decision of the CC; sixth, we will set out the arguments put forward by the Spanish Government in the proceedings brought before the ECtHR in this case; and finally, seventh, we will address the position adopted by the ECtHR in the present case, in its judgment delivered in Fragoso Dacosta v. Spain on 8 June 2023.
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
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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.
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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.
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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:
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1. The timing of the expressions in question—during an event of special respect and reverence for state symbols.
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2. The use of offensive language such as “fucking” to refer to the flag.
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3. The view that such expressions were unnecessary for advancing the labor-related demands at issue.
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4. Consequently, they perceived lack of connection between the expressions used and the labor-related demands.
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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:
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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
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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
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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.
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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:
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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.
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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:
“[T]he relevant criminal provision pursues a legitimate aim, is not vague or indeterminate, and is laid down in the law in an accessible and foreseeable manner. There is no reasoned doubt as to the relevance and legitimacy of the aim pursued by the offence, which is to protect the symbols and emblems of the constitutional State, including the flag, the only symbols explicitly constitutionalized (Article 4 SC)”Footnote 88
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.
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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.
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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.
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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
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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.
E. Conclusion
The multilevel interaction between the case law developed by national and European constitutional courts in the field of fundamental rights contributes to the construction of a shared ius commune, which facilitates judicial dialogue. One of the key virtues of this multilevel constitutionalism approach is the harmonization, cooperation, and reciprocal influences—cross-fertilization—that flow between different constitutional spaces. However, this Article focuses on the grey areas and variable geometries that may arise due to the particularities of how rights are conceived within each legal order or system.
Indeed, there are zones of dissent or, if one prefers, disagreement, which highlight the need for renewed encounters. In any case, we argue that such interpretative divergences between courts do not preclude mutual influence.
The study of these questions has been carried out in this Article through a detailed analysis of the relationship between the Spanish CC and the ECtHR.
It should be clarified that in this dynamic of mutual influence, the role of judicial interpretation is essential. For this reason, we have chosen to examine more deeply the mechanisms of incorporation and interpretation of the ECHR and the CFREU within the Spanish legal system, with special reference to the interpretative clause in Article 10.2 SC. We have also explored the significance of dissenting opinions issued by CC judges in cases where they oppose the majority’s decision, and the extent to which such dissenting opinions contribute to an open society of constitutional interpreters and to the dialogue—where relevant—with the ECtHR.
It is true that the ECtHR applies its own case law and is not formally required to engage in downward dialogue or to adopt the reasoning of national courts—or that of dissenting opinions, however compelling they may be. Nevertheless, the ECtHR may itself be particularly interested in drawing from domestic reasoning when building and articulating its own position within this “symbiotic” dynamic.
These general premises are grounded in this Article through an illustrative example that currently reveals the dynamic interplay of cross-fertilization and areas of disagreement: freedom of expression.
In this regard, the Article conducts a detailed analysis of the Fragoso Dacosta case, as adjudicated by both the Spanish CC and the ECtHR, from which a number of general and specific conclusions may be drawn:
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(1) In recent years, the Spanish CC has issued rulings warning of a regression in the protection of freedom of expression as a democratic cornerstone in Spain.
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(2) The Fragoso Dacosta case exemplifies this anti-liberal trend within the CC, as it concerns controversial expressions directed at a national symbol—the flag—by a trade union representative in the context of a labor dispute. Regrettably, the CC in this case diverges clearly from the ECtHR’s settled case law on freedom of expression, making the judgment a foreseen condemnation of the Spanish state by the ECtHR.
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(3) The CC’s reluctance to fully embrace the ECtHR’s doctrine is puzzling, especially considering its obligations under the ECHR and the interpretative clause of Article 10.2 SC.
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(4) Interestingly, although the CC attempts—at least superficially—to incorporate ECtHR doctrine into its reasoning, it ultimately distorts its substantive application. For instance, the CC cites the Stern Taulats and Roura Capellera case, which is directly relevant and formed the basis for Spain’s previous condemnation under Article 10 ECHR. However, the citation is only apparent: the CC focuses on marginal differences between the two cases to conclude that Stern Taulats is inapplicable. In short, the CC seems to mask its reasoning to give the appearance of engaging with ECtHR case law, while in reality distancing itself from it and issuing a decision fully aware of its departure from ECtHR doctrine.
What might be driving this anti-liberal trend within the Spanish CC in matters of freedom of expression? Two hypotheses are advanced in the Article:
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(1) An internal interpretative disagreement within the Court regarding the criminalization of offenses against national symbols. Had the CC not adopted such a restrictive reading, two alternative routes could have been explored: (a) recognizing constitutional protection and leaving to the legislature the debate about the appropriateness of maintaining such criminal provisions; or (b) referring a question of constitutionality to the full Court if the chamber hearing the case had been inclined to uphold the constitutional complaint. While both options may be politically sensitive and legally complex—given the connection to public order and national identity—they are outlined in abstract terms as feasible alternatives.
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(2) Related to the same interpretative disagreement: one could argue that the CC’s anti-liberal trend in this and similar cases reflects a worrying “in-group bias”—a bias internal to the Court’s judges, shaped by a temporary conservative majority that may justify repression of expressions against national symbols.
Be that as it may, the CC’s ruling in this case deserves criticism, especially considering its role as the ultimate guarantor of the Constitution and fundamental rights in the Spanish legal order. The judgment also represents a missed opportunity for constructive dialogue, as the CC needlessly distances itself from ECtHR case law.
In this context, the dissenting opinions of constitutional judges merit close attention and are positively assessed. In a way, we argue that these dissenting opinions compensate for the CC’s flawed decision and demonstrate that a different reading was fully viable.
It is precisely in situations like this where the interpretative value of separate opinions becomes especially apparent. 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.
From the above, we conclude that:
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(1) The separate opinions issued by CC judges may provide an argumentative roadmap for applicants before the ECtHR collaborating to the open society of constitutional interpreters.
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(2) They may also serve as a useful interpretative tool for the Strasbourg Court in areas where no settled case law yet exists. Ultimately, this contributes to a bidirectional dialogue and cross-fertilization between constitutional spheres that are called upon to understand one another.
Acknowledgements
The paper falls within the activities of UNED’s Multilevel Fundamental Rights Research Group, group code 271; the ISAAC Chair. Individual Rights, Scientific Research, and Cooperation, UNED- CNR/IFAC.
Competing Interests
The author declares none.
Funding Statement
Funding for open access charge: Universidad de Granada / CBUA.
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