CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 8 décembre 2009

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Spain (applications nos. 28389/06, 28955/06, 28957/06, 28959/06, 28961/06 and 28964/06)   DISMISSAL OF TRADE UNIONISTS FOR AN OFFENSIVE AND HUMILIATING PUBLICATION WAS NOT CONTRARY TO THEIR FREEDOM OF EXPRESSION   No violation of Article 10 (freedom of expression) of the European Convention on Human Rights.     (The judgment is available only in French.)   Principal facts The applicants, José Antonio Aguilera Jiménez, Juan Manuel Palomo Sánchez, Francisco Antonio Fernández Olmo, Agustín Alvarez Lecegui, Francisco Beltrán Lafulla and Francisco José María Blanco Balbas, are Spanish nationals who live in Barcelona (Spain). They worked as delivery men for a company against which they had instituted several sets of proceedings before the labour courts. In 2001 they set up a trade union to defend their interests and those of other delivery staff, and joined the union’s management structure. The cover of an information bulletin published by the trade union in April 2002 showed a caricature of the director of human resources, seated behind a table, under which was drawn an individual on his hands and knees with his back to the viewer, and A. and B., who were looking at the scene and awaiting their turn to satisfy the director; the dialogue balloons were sufficiently explicit. Inside the bulletin, two articles, worded in crude and vulgar terms, criticised the fact that those two individuals had testified in favour of the company P. during proceedings brought by the applicants against it. The bulletin was distributed among the company’s employees and pinned up on the trade union's notice board, located inside the company's premises.   On 3 June 2002 the company dismissed the applicants for serious misconduct. They challenged that decision before the courts. On 8 November 2002 Barcelona labour no. 17 dismissed their complaints, considering that their dismissal had had a genuine and serious basis, in that the drawing and articles that had prompted the measure were offensive, tarnished the honour and dignity of the individuals in question and exceeded the limits of freedom of expression. On 7 May 2003 the Catalonia Higher Court of Justice upheld that decision in respect of four of the applicants. The dismissal of Mr Aguilera Jiménez and Mr Beltrán Lafulla was, however, held to be unlawful, in the absence of evidence that they had been directly involved in the disputed actions, and the company was ordered to reinstate them or pay compensation. An appeal on points of law by the applicants was dismissed by the Supreme Court on 11 March 2004. Their amparo appeal was declared inadmissible by the Constitutional Court on 11 January 2006. That court held, in particular, that freedom of expression did not protect vexatious, offensive or ignominious statements that were irrelevant for the expression of opinions or information.     Complaints, procedure and composition of the Court The applicants alleged that their dismissal, based on the content of the information bulletin in question, had infringed their freedom of expression (Article 10) and that the real reason for their dismissal had been their trade-union activities, in violation of their right to freedom of assembly and association (Article 11).   The applications were lodged with the European Court of Human Rights on 13   July 2006.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorra), President , Elisabet Fura (Sweden), Corneliu Bîrsan (Romania), Alvina Gyulumyan (Armenia), Egbert Myjer (Pays-Bas), Luis López Guerra (Spain), Ann Power (Ireland), judges ,   and Santiago Quesada , Section Registrar .     Decision of the Court   Only the applications from those applicants who had not been successful before the Spanish courts were admissible and examined on the merits.   The dismissal of these applicants, endorsed by the judicial authorities, represented an interference with their right to freedom of expression; it was provided for by Spanish law and pursued the legitimate aim of protection of the reputation or rights of others. In order for such interference to be acceptable under Article 10, it had also to be “necessary in a democratic society”.   In this connection, the Court noted that a trade union which did not have the possibility of expressing its ideas freely would be deprived of its content and purpose. It reiterated, however, that freedom of debate was undoubtedly not absolute in nature, that freedom of expression as set out in Article 10 carried with it duties and responsibilities and that a Contracting State could subject it to restrictions or sanctions. In the present case, the Spanish courts had analysed in detail the events complained of, and had concluded that, on account of their seriousness and tone, the drawing and articles amounted to personal attacks that were offensive, intemperate, gratuitous and in no way necessary for the legitimate defence of the applicants’ interests; the latter had exceeded the acceptable limits of the rights of criticism. In so finding, the courts had weighed up the competing interests under national law and their decisions could not be considered unreasonable or arbitrary.     The Court concluded, by six votes to one, that the authorities had not exceeded their discretion to penalise the applicants and that there had been no violation of Article   10.   In the light of its finding under Article 10 and in the absence of evidence indicating that the applicants’ dismissal had been an act of reprisal by their employer for their trade-union activities, the Court was of the opinion that no separate question arose under Article 11.   Judge Power expressed a dissenting opinion, the text of which is annexed to the judgment.   ***   This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.