Resumen de Las injurias al Rey a la luz de la Jurisprudencia del TEDH. Sentencia del TEDH. Otegi Mondragon contra España (Requête nº 2034/07), de 15 marzo. (RI §410543)

Manuel Sánchez de Diego Fernández de la Riva

• español

• English

  The European Court of Human Rights has recently issued a ruling in which it condemned Spain for having violated the freedom of expression of Arnaldo Otegui, spokesman, at the time, of Sozialisten Abertzaleak. The Supreme Court sentenced Otegui defamation by the King and the Constitutional Court endorsed the resolution. The ECHR considered a violation of art. 10 of the Convention because there is no proportionality between the petitioner´s sentence and the objective -protecting the reputation of the King. The ECHR interprets the events as a critique of a political representative -to the King as an institution- in relation to a matter of general interest and remind that the freedom of expression can only be limited excepcionally, when there is, among other things, a pressing social need. The sentence seems to be in line with recent European case law on political criticism.

  However, there are important nuances that might have meant a failure radically different.

  Starting from the analysis of European case law cited in the case and with wich there is no a factual identity. In addition, we believe the court ignores the fact that Otegui statements could be considered as inciting hate and violence, which would left unprotected by freedom of expression. In this regard the protection of the Head of State rather than being a question of honor, it would be something concerning to public order.