Spain’s Violation of Article 10 ECHR in a case involving King Hassan II of Morocco

The European Court of Human Rights has recently held that Spain has violated Article 10 of the European Convention on Human Rights in a case dating back to 1995 and involving King Hassan II of Morocco. The decision (Gutiérrez Suárez v. Spain, application no. 16023/07) – available only in French – was issued on 1 June 2010 by a Court’s chamber and includes a dissenting declaration of Slovene judge Boštjan M. Zupančič.

A Spanish newspaper, Diario 16, published an article on 18 December 1995 under the headline “Five tons of hashish discovered in a consignment belonging to Hassan II’s company”. The front of the newspaper reads: “A family company belonging to Hassan II implicated in drug trafficking”. The article explains that a lorry belonging to “Domaines Royaux”, a company owned by the Alaouite royal family, was meant to export fruits; however, the lorry, which left Tanger and headed towards Madrid, also contained a load of hashish hidden in a false bottom. The drugs were discovered in Algeciras (southern Spain) and judicial investigations, conducted in 1996, proved that the people responsible for smuggling the hashish were Spanish citizens who did not actually have any relation to “Domaines Royaux”.

King Hassan II claimed that the editor of the newspaper, as well as the author of the article, had violated his right to honour. The right to honour is guaranteed by Article 18 of the Spanish Constitution, complemented by Statute no. 1/1982, 5 May, on the Protection of the Right to Honour, to Personal and Family Privacy and Personal Image [Ley de Protección Civil del Derecho al Honor, a la Intimidad Personal y Familiar y a la Propia Imagen]. This is a right guaranteed to all human beings and therefore not only to Spaniards or nationals of other countries legally settled in Spain. Spanish courts of first and second instance, as well as the Supreme Court hearing in cassation, stated that there had been a violation of the right to honour. Subsequently, after the editor and the author of the article lodged a constitutional appeal (recurso de amparo), the Spanish Constitutional Court held that there had not been a violation of Article 20 of the Constitution, which recognises freedom of expression. The Constitutional Court dismissed the appeal, also making reference to the case-law of the European Court of Human Rights.

The Spanish Constitutional Court’s main arguments focused on the importance of headlines in newspapers, on the basis that the number of people who read headlines is larger than the number of people who actually read entire articles. In addition, the social and political importance of the case was highlighted.

The European Court of Human Rights accepted the applicants’ arguments related to the veracity of the information provided. Indeed, the content of the article substantially responded to the information existing at the time of writing the article. The Court recalls its steady case-law according to which democratic societies might be prepared to accept some restrictions to the freedom of expression. Furthermore, a certain amount of exaggeration is acceptable. It is only this way that the vital role of the press as public watchdog can be guaranteed. In this case, the restrictions set to the freedom of expression are not proportionate and therefore constitute a violation of Article 10 of the Convention.

This seems coherent with the settled case-law of the Court and one might wonder why the Spanish courts have understood it otherwise, particularly if we bear in mind that according to the Spanish Constitution, all fundamental rights are to be interpreted in accordance with the European Convention on Human Rights, among other international legal texts. Due to the symbolic relevance of this reference, that was meant to contribute to cut short the heritage of General Franco’s Dictatorship, Spanish courts have traditionally been cautious when dealing with it, i.e. when interpreting fundamental rights in accordance with the European Convention on Human Rights. Naturally, some of their decisions are debatable. Yet it seems that in this specific case, the political weight of the original claimant might have played a role when assessing the violation of his right to honour.

Susana de la Sierra, Research team of the University of Castilla-La Mancha (UCLM)

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