By Tobias Thienel
(It’s also a great film, but never mind that)
This, more or less, is the holding of a recent case in the European Court of Human Rights, Otegi Mondragon v Spain. The applicant in that case, a Basque politician, had been convicted of gravely insulting the King of Spain. He had, in particular, described the King – in his capacity as head of the armed forces – as responsible for torture and accused the King of ‘protecting torture and imposing his monarchical regime on our people by means of torture and violence.’
When this case came to Strasborg under the rubric of Article 10 (freedom of expression), the Court recalled that ‘the limits of acceptable criticism are […]
wider as regards a politician as such than as regards a private individual.
Unlike the latter, the former inevitably and knowingly lays himself
open to close scrutiny of his every word and deed by both journalists
and the public at large, and he must consequently display a greater
degree of tolerance’ (Lingens v Austria, para 42; Otegi Mondragon v Spain, para 50). This raised the question whether the King of Spain, as hereditary head of State, fell to be regarded as a politician.
Not altogether surprisingly, the Court answered this question in the affirmative (if not quite in those words). It recalled its case-law to the effect that it was not permissible under the Convention to shield foreign heads of State and diplomatic agents from criticism purely solely on account of their function or status (Colombani and Others v France, para 68). The Convention also forbade States parties from conferring such immunities from (severe) criticism on their own (republican) heads of State (Artun and Güvener v Turkey, para 31; Pakdemirli v Turkey, paras 52 et seq).
Against that background, the Court in Otegi Mondragon applied the same principles to the royal head of State relevant there. The Court recognised that the role of the King was that of a politically neutral symbol of the unity of the State (which is, of course, itself contentious in Basque politics). However, that role could not immunise him from criticism of the way he discharged his duties, or indeed from criticism of the State as such, of which he stood as a symbol, or of the monarchy. The immunity of the King from the legal process in Spain (Article 56 (3) of the Constitution) could not bar public debate on his institutional, symbolic responsibility (Otegi Mondragon v Spain, para 56).
The limits of such debate were in the respect that the King could expect as a person (en tant que personne; Otegi Mondragon v Spain, para 56). It therefore had to be noted that the criticism by the applicant in the instant case had not concerned the King’s private life, but his official function. Moreover, the Court noted that the applicant had spoken as a politician, on a matter of public interest, and that the penalties imposed (one year’s imprisonment and loss of suffrage for that time) had been particularly severe. Considering also that the applicant’s statements had amounted only to provocative, but not to hate speech, the Court found a violation of Article 10.
This judgment, unsurprising as it is, spells trouble for the traditional offences of lèse-majesté such as (I think) they exist in many monarchies. The Court is unlikely to decide differently if the King or Queen is not ‘only’ the head of State but also – technically – the source of all public authority (which the King of Spain is not: Article 1 (2) of the Constitution). Otegi Mondragon thus declares – in hardly revolutionary fashion – that freedom of speech, as one of the hallmarks of democracy, is not affected by the existence of a monarchical or republican system of government.
The case also confirms that special protection for any other head of State is highly problematic from the point of view of Article 10. Section 90 of the German Criminal Code, for instance, is unlikely to find favour with the European Court (although it might be construed so narrowly that it will only apply in cases that Article 10 does not cover).