The European Court of Human Rights (ECtHR) has condemned Spain for violating the right to freedom of expression of a Galician trade unionist believed to have committed the crime of insulting the flag. The incident occurred in 2014 during protests in front of the Ferrol Arsenal (A Coruña), motivated by working conditions and delays in paying salaries to workers providing services in these military facilities. Simultaneously with the raising of the flag, the trade unionist concerned, Pablo Fragoso, addressed the assembly with expressions such as “Here the damned flag is silent” or “You must set the damned flag on fire”.
The Constitutional Court itself upheld the criminal conviction and €1,260 fine imposed on Fragoso in a judgment that sparked much controversy in the Guarantee Board. The verdict was passed by a vote of 6 to 5 and the three judges from the progressive sector, along with two from the conservative bloc, submitted dissenting votes already warning that Spain was likely to face prosecution of the trade unionist.
This criterion, which remained in the minority at the Constitutional Court in 2020, has now been adopted by the Strasbourg Court, considering that Fragoso’s behavior was protected by his right to freedom of expression, for which the Spanish State must compensate him 7,260 euros. The judgment took into account the context of a trade union mobilization in which the events took place. The Arsenal Chief Admiral had sent a letter to the Galician Confederation of Trade Unions (CIG) complaining about the protests and their coincidence with the raising of the banner. However, the concentrations continued and led to the incident that the investigative court considered insulting the flag a criminal offense, which is why Fragoso was sentenced to the above fine, which could be replaced by imprisonment in the event of non-payment.
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The trade unionist appealed to the Court of A Coruña, which upheld the conviction, and then applied for protection from the Constitutional Court, which rejected the conviction and confirmed the thesis of the criminal nature of the behavior analyzed and the sentence imposed. However, there were up to five individual votes by judges Cándido Conde-Pumpido (now President of the Court), Juan Antonio Xiol and María Luisa Balaguer, then members of the progressive minority, joined by Andrés Ollero and Encarnación Roca. Ollero led the first presentation and suggested giving the unionist protection. As his thesis was rejected by the other six Conservative sector votes, the rapporteur changed and the new verdict was drafted by Judge Antonio Narváez. Judges Juan José González Rivas, then president of the court, Pedro González-Trevijano, Ricardo Enríquez, Antonio Narváez, Santiago Martínez Vares and Alfredo Montoya, all from the conservative faction, then the majority in the court, voted in favor of the sentence.
The theses, which the European Court of Human Rights now unanimously advocates, essentially correspond to those of the judges at the time, who were in the minority in the Constitutional Court. The Galician trade union federation has highlighted in a statement that the Strasbourg court has “essentially” accepted the reasoning put forward by its representative when appealing his judgment, having exhausted all the avenues of appeal that it could appeal to the Spanish courts up to In his lawsuit before the European courts, Fragoso essentially stated that the phrases that motivated his prosecution were “the symbolic expression of a feeling of disappointment at the position of the military establishment in the conflict with the contractor company”. the workers of the Ferrol Arsenal.
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Now the Human Rights Court has echoed these arguments, reiterating in its ruling on behalf of the Spanish state that “taking into account the circumstances of the case, the Court is not satisfied that the national authorities have achieved a fair balance between the relevant interests.” convicting the plaintiff and imposing such an excessive penalty on him.” The judgment states that the criminal sanction imposed on Fragoso was excessive in relation to the conduct alleged against him. He adds that given that it was a protest against non-payment of wages, “a certain degree of exaggeration or even provocation is permissible”. like those described, “in other words, a certain amount of excess is permissible”.
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