November 26, 2018
The applicant, Agustin Toranzo Gómez, was a member of an activist group that occupied a social centre in Spain. In November 2007 a court issued an eviction order and police officers entered the building.
Mr Gómez and another protester had fixed themselves to the floor of a tunnel they had constructed underneath the building so that they could not be moved. This included inserting their arm inside an iron tube, which was attached to the floor, and locking their arm in place inside the tube.
The police had put a rope around Mr Gómez’s waist and had tried to pull him out. When that failed they tied the two protesters up to immobilise them. Both men ended their protest on 30 November.
At a press conference in December, Mr Gómez described the police’s actions in trying to pull him out as “torture”. He said that the method had caused him great pain, which had eventually led him to give up. He said the “act of torture” had been carried out by two police officers who had appeared in photographs in the press.
Mr Gómez was charged with slandering the police officers and in July 2011 he was found guilty and fined. The Spanish court found that the authorities had acted in a proportionate manner in order to persuade Mr Gómez and the other protester to end their action. On appeal, Mr Gómez’s fine was reduced, but the rest of the judgment was upheld.
Mr Gómez took the case to the ECtHR claiming that the Spanish courts’ decision to find him guilty of slander was an undue interference with his rights under Article 10 (freedom of expression) of the European Convention on Human Rights.
The ECtHR had to balance the applicant’s rights under Article 10 with those of the police officers under Article 8 (right to respect for private and family life).
The ECtHR noted the Spanish findings as to how the police had acted when trying to remove Mr Gómez from the building. It concluded that even if Mr Gómez had exaggerated his situation in the press conference, he was likely to have suffered some distress, fear and mental and physical suffering.
The ECtHR said that Mr Gómez’s statements had been made in good faith as part of a debate on a matter of public interest, i.e. the actions of the police as a public authority. As for the use of the word “torture”, the ECtHR said that Mr Gómez had used it as a value judgment, which could not be proved, and that he had meant it colloquially to describe an excessive use of force and to criticise the methods used by the police and fire service in the case.
The Spanish courts had not taken into account the question of whether Mr Gómez had been violent towards the police officers and there was no reference in the Spanish judgments as to whether there had been any negative consequences for the police officers.
The ECtHR found that the fine issued and the prison sentence that was threatened if he did not pay had a “chilling effect” on Mr Gómez’s freedom of expression by discouraging him from criticising the actions of public officials.
Overall, the punishment had lacked appropriate justification and the standards applied by the Spanish courts had not achieved a fair balance between all the rights and related interests. The interference with Mr Gómez’s Article 10 rights had not been “necessary in a democratic society”. Therefore, there had been a violation of Article 10. (Toranzo Gómez v Spain (application no 26922/14) (20 November 2018) — to read the judgment in full, click here).