European justice annuls a sentence against a trade unionist who shouted “whore flag” in a barracks

The European Court of Human Rights (ECHR) has condemned Spain for having violated the right to freedom of expression of a Galician trade unionist, who was considered the author of a crime of insulting the flag. The event occurred in 2014, during protests in front of the Ferrol Arsenal (A Coruña), motivated by working conditions and delays in the payment of salaries to workers who provided services in these military installations. Coinciding with the raising of the flag, the trade unionist in question, Pablo Fragoso, addressed the gathering using expressions such as “here you have the silence of the fucking flag” or “you have to set fire to the fucking flag.”

The Constitutional Court itself confirmed the criminal conviction and fine of 1,260 euros imposed on Fragoso, in a sentence that generated great controversy in the guarantee body. The ruling was approved by 6 votes to 5, and the three magistrates from the progressive sector, together with two from the conservative bloc, presented dissenting votes in which they already warned that Spain would very likely be sentenced for having criminally prosecuted the trade unionist.

This criterion, which in 2020 was left in the minority in the Constitutional Court, has now been the one adopted by the Strasbourg Court, considering that Fragoso’s conduct was protected by his right to freedom of expression, for which the Spanish State must compensate him with 7,260 euros. The ruling has taken into account the context of a union mobilization in which the events occurred. The chief admiral of the Arsenal had sent a letter to the Galician Inter-Union Confederation (CIG) complaining about the protests and their coincidence with the hoisting of the banner. But the concentrations continued to take place, giving rise to the episode that the investigating court considered constituting a crime of insulting the flag, for which Fragoso was sentenced to the aforementioned fine, replaceable by a custodial sentence in case of non-payment.

The trade unionist appealed to the Court of A Coruña, which confirmed the conviction, and subsequently appealed to the Constitutional Court for protection, which denied it, endorsing the thesis of the criminal nature of the conduct analyzed and the sentence imposed. There were, however, up to five individual votes from magistrates Cándido Conde-Pumpido (today president of the court), Juan Antonio Xiol and María Luisa Balaguer, then members of the progressive minority, who were joined by Andrés Ollero and Encarnación Roca. Ollero was in charge of the first presentation and proposed granting protection to the trade unionist. As his thesis was defeated by the other six votes of the conservative sector, there was a change of rapporteur, and the new ruling was drafted by magistrate Antonio Narváez.

The theses that the European Court of Human Rights has now upheld unanimously coincide, in essence, with those expressed by the magistrates who at the time were in a minority in the Constitutional Court. The Galician Inter-union Confederation has highlighted in a statement that the Strasbourg Court has “substantially” accepted the reasoning that its representative defended when appealing his sentence, once all the appeals that he could bring in motion in the Spanish courts had been exhausted, until reaching to the Constitutional In his challenge before the European courts, Fragoso essentially stated that the phrases that had motivated him to be subjected to criminal prosecution were “the symbolic expression of a feeling of disappointment at the position of the military establishment in the conflict with the contractor company” of the workers of the Ferrol Arsenal.

Now, the Human Rights Court has endorsed these arguments, and in its conviction for the Spanish State affirms that “taking into account the circumstances of the case, the court is not convinced that the national authorities achieved a fair balance between the relevant interests at stake in convicting the plaintiff and imposing such an excessive penalty on him.” The ruling explains that the criminal sanction imposed on Fragoso was exaggerated in relation to the conduct he was accused of. He adds that given that the context was that of a protest against the non-payment of wages, “a degree of exaggeration, or even provocation, is allowed.” The Strasbourg Court insists on this reasoning by stating that “in other words, a degree of excessiveness is allowed” in circumstances such as those described.