Divided Constitutional Court rules insults to Spanish flag not protected by freedom of speech

The decision comes after the European Court of Human Rights overruled a decision to fine two youngsters for burning a photograph of the king

Marc Toro
2 min
Un manifestant crema una bandera espanyola en una protesta a la plaça Sant Jaume de Barcelona

BarcelonaThe Constitutional Court (CC) has been greatly divided by a ruling that contradicts European jurisprudence. TheIt has decided, with six votes in favour and five against, that the crime of insult to the Spanish flag is not protected by freedom of speech. The decision, which upholds the conviction of a Galician trade unionist who called for the burning of the "fucking [Spanish] flag", runs counter to the criteria of the European Court of Human Rights (ECHR), which in 2018 condemned the state for having fined two young people who burned photos of the king in Girona. The ECHR considered at the time that there was no crime because that action was framed, precisely, within freedom of expression.

Despite the fact that the full sentence has not yet been made public, the Constitutional Court has brought forward the operative part this Tuesday. The appeal presented by Pablo Fragoso Dacosta, leader of the Confederación Intersindical Galega (CIG), who in 2014 was fined 1,260 euros for having shouted "Here you have the silence of the fucking flag" and "We must set fire to the fucking flag" in a demonstration in front of the Ferrol Military Arsenal, was rejected. The sentence, dictated by the penal court number 1 of Ferrol, was already endorsed by the Provincial Court of A Coruña, and now the CC too.

The majority of the court argues that the "expressions" used by Fragoso were "unnecessary for the wage claims" he was defending at the time of the protest six years ago. "It is understood that [...] they were made on the margin and without the protection of the fundamental rights invoked," the court ruled in reference to freedom of expression. Up to five judges, however, have decided to cast individual votes against this conclusion. Encarnación Roca, Andrés Ollero, Cándido Conde-Pumpido and also Juan Antonio Xiol and María Luisa Balaguer, who have accumulated several dissenting votes against the court's decisions.

"An absolutely retrograde position"

Pending details of the ruling and the judges against it, Xavier Arbós, a professor of constitutional law at the UB, believes that the decision "clashes" with the ECHR's ruling two years ago on the king's photographs, and does not agree that the "functional nature" of freedom of expression should be assessed; in other words, whether it is valid or not depending on the demands being made at any given time. "Whether this gentleman said what he said about the flag in the context of a wage claim or he said it simply because he does not like the flag, he should be treated the same', he argued in statements to the ARA.

The lawyer Benet Salellas, who represented the two young people from Girona accused of burning photos of the king in Girona in 2007, is more forceful. "The sentence places the CC outside the European Convention on Human Rights and in an absolutely retrograde position," he says. In his opinion, the court has "lost the opportunity" to update the traditional jurisprudence in Spain on the insult to the flag and to "put the Spanish state on the human rights train". He takes it for granted, however, that the criterion of the sentence goes beyond the Fragoso case: "When it is the expression that is criminalised, imagine what happens when you really burn it," he concludes.

The precedent: acquitted for tearing down a flag

The CC's ruling also contradicts a recent precedent: the Barcelona Court of Appeal in November acquitted three students from the Autonomous University of Barcelona (UAB) accused of tearing a Spanish flag from a Catalan Civil Society (SCC) parade in 2016. They were also accused of insulting the flag, but the provincial court used the ECHR ruling to frame the action in terms of freedom of expression.