Press release issued by the Registrar

JUDGMENT IN THE CASE OF FUENTES BOBO v. SPAIN

In a judgment[fn] delivered at Strasbourg on 29 February 2000 in the case of Fuentes Bobo v. Spain, the European Court of Human Rights held (by five votes to two) that there had been a violation of Article

10 (freedom of expression) of the European Convention on Human Rights and (unanimously) that it was unnecessary to examine a complaint under Article 14 (prohibition of discrimination). Under Article 41

(just satisfaction) of the Convention, the Court awarded the applicant 1,000,000 pesetas (ESP) for pecuniary and non-pecuniary damage and ESP 750,000 for costs and expenses less 6,600 French francs

(FRF) that the applicant had already received by way of legal aid before the Court.

1. Principal facts

The applicant, Bernardo Fuentes Bobo, a Spanish national, was born in 1940 and lives in Madrid (Spain).

At the material time, he had been employed by the Spanish State television company (TVE) since 1971 as a producer. At the end of 1992 the programme he presented was dropped and no replacement post

was offered to him, although he was required to complete his daily working hours.

Following a demonstration by the staff in October 1993 about the way TVE was managed, the applicant and a colleague co-authored an article in the newspaper Diario 16 criticising certain of the

management’s actions. At the beginning of November 1993 the applicant received a letter informing him where he should report for work until such time as he was offered a post. However, he was not given

an office. An exchange of correspondence and a document circulated by the applicant among other members of staff resulted in disciplinary proceedings that ended in January 1994 with the applicant being

suspended without pay, first for 16 days and later for 60 days. Identical penalties were imposed on one L.C.M. The applicant lodged an appeal with the Madrid Labour Court (no. 10); that appeal was

dismissed, whereas Madrid Labour Court (no. 34) set aside the penalty imposed on L.C.M. The applicant then appealed to the Madrid High Court (Tribunal Superior de Justicia), which overturned the

lower court’s judgment and set aside the disciplinary penalty stating that it was necessary to do so to avoid inconsistent court decisions and because no penalty had been imposed on the 276 colleagues who

had shown support for L.C.M.’s and the applicant’s article. In the meantime, the applicant had commented on the penalties and TVE’s actions in two radio programmes during which he made remarks about

TVE’s managers that were considered offensive. Those remarks led to fresh disciplinary proceedings being taken which ended with the applicant’s dismissal on 15 April 1994.

Following an appeal by the applicant, the Madrid Labour Court (no. 4) ruled that there had been a procedural defect and that the dismissal was unlawful. However that decision was overturned by the Madrid

High Court, which held that the dismissal was lawful under the rules governing the employees’ status. The Supreme Court declared inadmissible an appeal on points of law that had been lodged with a view to

harmonising the case-law. In a decision of 25 November 1997 the Constitutional Court, which was the final appellate court, dismissed an amparo appeal by the applicant on the ground that there had been no

violation of his right to freedom of expression.

2. Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 5 January 1998.

On 1 November 1998 when Protocol No. 11 to the Convention came into force, the application was transmitted to the Court.

In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court assigned the case to the Fourth Section. On 1 June 1999 a chamber of seven judges of that Section declared admissible the

applicant’s complaints relating to his right to freedom of expression and the allegation of discrimination. It declared the remainder of the application inadmissible.

A hearing at which the parties made oral submissions on the merits of the complaints declared admissible was held on 9 December 1999. Judgment was given by a Chamber of seven judges, composed as

follows:

Matti Pellonpää (Finnish), President

Georg Ress (German),

Antonio Pastor Ridruejo (Spanish),

Lucius Caflisch (Swiss),

Jerzy Makarczyk (Polish),

Ireneu Cabral Barreto (Portuguese),

Nina Vajic (Croatian), Judges

and also Vincent Berger, Section Registrar.

3. Summary of the judgment

Complaints

The applicant complained that his dismissal infringed his right to freedom of expression as guaranteed under Article 10 of the European Convention on Human Rights; he relied, too, on Article 14 of the

Convention alleging that he had been a victim of discrimination.

Decision of the Court

Article 10 of the Convention

The Government had submitted that there had been no interference by the State in the applicant’s freedom of expression and that the State could not be held responsible for the applicant’ dismissal, as TVE

was a private-law undertaking. The Court pointed out, however, that Article 10 also applied when the relations between employer and employee were governed by private law and, moreover, the State had a

positive obligation in certain cases to protect the right to freedom of expression. Furthermore, the Court considered that even though the interference concerned had been "prescribed by law" and pursued a

legitimate aim, namely the "protection of the reputation or rights of others", it did not on the facts of the case before it and in view of the severity of the penalty imposed on the applicant, meet a "pressing social

need". It noted that the statements in issue had been made in the context of a labour dispute and that the failings of the public entity denounced by the applicant were of a general nature. The Court added that

the "offensive" remarks attributed to the applicant, which – as the Constitutional Court had said – appeared to have been provoked, had first been used by radio-show hosts in exchanges that had been both

lively and spontaneous. In addition, it noted that there was nothing in the case file to suggest that TVE or the supposed targets of the remarks had taken any legal action against the applicant. The Court

concluded that notwithstanding the national authorities’ margin of appreciation, the relation between the penalty and the legitimate aim pursued was not reasonably proportionate. A majority of the Court

therefore held that there had been a violation of Article 10 of the Convention.

Article 14 of the Convention

In the light of its finding under Article 10 of the Convention the Court decided, unanimously, that it was unnecessary to examine the issue under Article 14 of the Convention.

Article 41 of the Convention

The applicant sought an amount of ESP 279,519,584 as compensation for his pecuniary and non-pecuniary damage. Having regard to the precariousness of the applicant’s position at TVE (even before the

disciplinary proceedings had begun), the fact that the applicant had not shown that he had used reasonable endeavours to find work and the fact that, in view of the applicant’s celebrity it was difficult to

dissociate the pecuniary damage from the non-pecuniary damage, the Court decided to award him an overall amount of ESP 1,000,000 plus ESP 750,000 for costs and expenses less FRF 6,600 that he had

already received in legal aid before the Court.

Judges Caflisch and Makarczyk expressed a dissenting opinion and this is annexed to the judgment.

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights

F – 67075 Strasbourg Cedex

Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)

Emma Hellyer (telephone: (0)3 90 21 42 15)

Fax: (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time

Court was established, replacing the original two-tier system of a part-time Commission and Court.

Footnote

[fn] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand

Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in

which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of

the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

Hudoc reference

REF00001387 Originating body

Court (Fourth Section) Document type

Judgment (Merits and just satisfaction) Language

French Title

CASE OF FUENTES BOBO v. SPAIN Application number

00039293/98 Respondent

Spain Date of judgment

29/02/2000 Conclusion

Violation of Art. 10 ; Not necessary to examine Art. 14 ; Pecuniary damage - financial award ; Non-pecuniary damage - financial award ; Costs and expenses partial award Separate opinions

Yes Articles

10-1 ; 10-2 ; 14 ; 41 Keywords

FREEDOM OF EXPRESSION ; PUBLIC AUTHORITY ; INTERFERENCE (ART. 10) ; PROTECTION OF THE RIGHTS OF OTHERS (ART. 10) ; PROTECTION OF THE REPUTATION OF OTHERS ; NECESSARY IN A DEMOCRATIC SOCIETY (ART. 10) ; PROPORTIONALITYHudoc reference