5.  The applicant was born in 1970 and lives in Seville.
6.  The applicant was a member of an activist group which occupied the Casas Viejas Social Centre in Seville.
7.  The owners of the building initiated judicial proceedings before the Seville First Instance Court no. 24 (hereinafter the “First-Instance Court”) to recover possession of their property. The First-Instance Court ultimately ordered the eviction of all the occupants and set 29 November 2007 as the date for their removal.
8.  On that date, the applicant, along with other occupiers, participated in a protest against their eviction from the building.
9.  Once the Judicial Committee of the Notices and Seizures Department (Comisión Judicial del Servicio Común de Notificaciones y Embargos), together with the legal representative of the building owners and the police, entered into the building, they discovered that the occupants had dug an underground tunnel of about 4.5 m deep which ended in a small space. They had placed some rudimentary reinforcing in order to prevent the collapse of the structure. Furthermore the occupants had positioned several “PVC” and iron tubes in the walls and the floor of the small room.
10.  As part of the protest against the eviction, the applicant and another protester, R.D.P., claimed that they had attached themselves to the floor of the room in such a way that they were not able to release themselves. Indeed they had introduced one of their arms inside one of the tubes and enchained their wrist to an iron stick which was fixed inside the tube. Since the fixation system was not visible it was impossible for the authorities to know whether this was true or not.
11.  Negotiations were held throughout the whole day, yet they were unsuccessful. The police, together with the fire service, considered digging them out. This idea was dismissed as there was risk of collapse.
12.  In order to verify whether the applicant and R.D.P. were attached to the floor, the police officers fixed a rope to their waist and wrist, respectively, and tried to pull them out of the tube to which they were fixed, to no avail. The fire service informed the applicant and R.D.P. that the building might collapse if heavy machinery were used to release them.
13.  On 30 November 2007, in view of the time which had elapsed and the applicant’s threat to kick down some unstable wooden posts that had been installed by the fire fighters as a preventive measure, two police officers immobilised them with ropes.
14.  At around 7 p.m. on 30 November 2007, owing to the severe suffering caused by the fixation technique, R.D.P. informed the police officers and fire fighters of his intention to voluntarily release himself and asked them to untie him. At around 8.30 p.m. the applicant also decided to end his protest.
15.  The applicant and R.D.P. were immediately arrested and brought before a judge. They were also taken to a public health centre where they underwent a forensic examination. As regards the applicant, the forensic report stated the following:
“Patient history and examination
He refers to having had his right hand tied, reporting local pain, local redness. Joint movement. No vascular disorders.
X rays: 0[1]
Presumptive diagnosis:
Contusion of the right wrist.
Treatment:
Avoid strain.
[illegible drug name] 1/d if pain”
16.  That same report also stated the following:
“Visual inspection, palpation and manipulation of limbs and other body areas rule out the possibility of physical injuries compatible with trauma or exogenous violence.
No haematomata, abrasions or injuries on different explored areas. He reports discomfort in both wrists but no visible haematological signs are at present detectable.
Interview and patient history rule out any decrease of his cognitive or volitional abilities, [patient thus] fit to give statement at this very moment.”
17.  On 1 December 2007 the applicant participated in a press conference during which he commented on the eviction and the techniques the police and fire fighters had used during the confinement. He referred to the events in the following terms:
“The torture was physical and psychological. The physical torture was undertaken only by national police officers and was insanely observed by the fire fighters. That is to say, fire fighters, whose specific names I am going to give because they treated us very badly – the most senior fireman was L., and [there was also] firemen M. and J – were taking photographs while we were tortured, taking photographs next to us as if we were their prizes, mocking. The physical torture that I am going to describe ... was very subtle so that it did not leave marks, but it caused intense pain ... and the other torture, well, it left marks ... above all the first one on my colleague ...
The first act of torture was carried out by national police officers, as I say, as soon as they came ... they grabbed my colleague’s arm, the free one, and they fixed a rope to his wrist quite tightly and they took the rope out of the tunnel and three national police officers ... pulled him to try to get him out ... with the purpose of causing him pain, frightening him, you know. The wrist inside the tube started to swell ... he was not able to open the padlock for a full day ...
[T]o me, instead of fixing the rope to my free wrist, they fixed it to my waist and they repeated what they had done to R.D.P.: they took the rope out of the tunnel and three national police officers ... pulled me with the same purpose ... the second act of torture was already physical and was perpetrated by national police officers. It was conducted at the end of the protest action, that is to say, the physical torture forced us to [release ourselves] from the tubes ... [T]he blood supply was cut off at the top, we could not move our fingers since the pain was very intense, we were like this for an hour, that is when fire fighters took the photograph because they did nothing else to us.
This act of torture was also undertaken by two national police officers who appeared in some press pictures in ‘Emasesa’ white overalls: I am not sure that if [people] have realised that both police officers with the ‘Emasesa’ overalls appear [in the press pictures], well, these are the ones who carried out the torture[;] then they finished tying us up and left the place and right away some fire fighters arrived and then the firemen J., M. and L. took photographs as a prize ... at this point, and owing to suffering and the pain in his wrist, R.D.P. ... decided to leave the protest action and release himself ... I said to them as a proposal: ‘Look, I am not going to release myself, but I will cooperate with everything that is necessary to allow the underpinning of the structure ... [T]hey then tied me in the same position and, well, that is then when I decided to put an end to the protest action. Well this was physical torture ...
Psychological torture was repeated eh, well it was continuous ... psychological torture was repeated several times and it was mainly perpetrated by fire fighters and consisted of brief psychological mistreatment ... they told us that it was impossible to take us out alive ..., that we would be killed by rubble because there was a bulldozer working right above us, [and] we were listening to the bulldozer ... [T]hey used the famous ‘oxygen measuring device’ which indicated that we were about to pass out ... They told us that the police were going to inject us with a sleep serum ... [T]hey told us that the police were going to introduce gas through the ventilation system, they did not specify which type of gas ... [T]hey also told us that they would release rats inside the tunnel ...”
18.  A female journalist asked the applicant whether the medical report had revealed any kind of physical or psychological damage, to which the applicant answered “not psychological” yet “physical”. The applicant further stated that he had already said that “physical torture [was] very subtle and undertaken by elite police officers, that hardly left marks but ... caused intense pain”.
19.  As a result of the statements, on 21 December 2007 the delegation of the Government of Andalusia lodged a complaint with the public prosecutor, requesting the initiation of a criminal investigation before the Seville investigating judge no. 17. This judge ordered the opening of an investigation, as a result of which the applicant was charged with slander and defamation.
20.  On 6 July 2011 Seville criminal judge no. 13 (hereinafter “the criminal judge”) convicted the applicant of slander, sentencing him to twenty month fine with a daily amount of 10 euros (EUR). In addition, he was ordered to pay compensation to the two police officers for damage in a total amount of EUR 1,200, with one day’s imprisonment for every two day fines unpaid in default. Furthermore, the applicant was ordered to publish the judgment in the media which had participated in the press conference at his own expense.
21.  The criminal judge stated that authorities had acted in a proportionate manner. The criminal judge considered that the first action carried out by the police (that is to say fixing a rope to their waist and wrist, respectively, and using force in an attempt to pull them out) had been a proportionate technique with the purpose of verifying whether the applicant and R.D.P. were in fact attached to the concrete floor. He further observed that the methods used by the police, such as threatening them with the use of gas or with prosecution for committing a crime against a person in authority, had just been measures aimed at pressuring the applicant and R.D.P. to release themselves. According to the criminal judge the fire fighters also intimidated the applicant and R.D.P. by telling them that the walls could collapse if the authorities opted to use machinery to release them. The purpose behind this was to make them release themselves voluntarily. Additionally, the criminal judge observed that the authorities had then taken the decision to tie the applicant’s right hand to his ankle in order to immobilise him, in view of the risk of the walls collapsing and the applicant’s threat to kick down the unstable wooden posts that had been installed by the fire fighters as a preventive measure.
22.  In view of the statement of facts as determined by the judge, it was considered that the applicant’s remarks constituted a direct accusation of the commission of a crime – namely torture – which was untrue.
23.  The criminal judge then considered that the right to freedom of speech was “a fundamental right but it [was] not unlimited either in its abstract concept or in its practical execution” since it had to be “respectful of other people and one [could not] avail oneself of it in order to use abusive or offensive words”. In this case “the applicant [had] exceeded the bounds of his right to freedom of speech ... by violating other people’s rights.”
24.  The criminal judge noted that the behaviour of the police officers did not disclose all the elements under the legal classification of torture within the meaning of Article 174 of the Spanish Criminal Code, which clearly defined torture as follows:
“Torture is committed by a public authority or official who, in abuse of office, and in order to obtain a confession or information from a person, or to punish him or her for any act he or she may have committed, or is suspected of having committed, or for any reason based on any kind of discrimination, subjects that person to conditions or procedures that, owing to their nature, duration or other circumstances, cause him or her physical or mental suffering, suppression of or decrease in his or her powers of cognisance, discernment or decision-making, or that in any other way attack his or her honour”.
25.  The criminal judge thus considered that the applicant’s declaration included a specific accusation of torture, which meant that a police officer or official had specific intent to obtain a confession or information from a person, or to punish them for an act they may have committed, or were suspected of having committed.
26.  The judge additionally found that the descriptions given by the applicant, in combination with the pictures that had been published by the press, could lead to the identification of the police officers in question. They would then be linked to accusations of torture, which, according to the criminal judge, had not taken place.
27.  In reply to the argument that the word “torture” had been used colloquially, the judge considered the following:
“[T]he applicant’s repetition of the word torture reveals that it was not an occasional and exceptional use of such word in place, but it was exposed and expressed in full awareness and repeatedly in order to get the message across to listeners, i.e., that the applicant had been subject to torture by police officers and fire fighters.”
28.  The applicant lodged an appeal with the Seville Audiencia Provincial, which on 28 June 2013 partially ruled in favour of the applicant and ordered the fine to be reduced to twelve month fine with a daily amount of EUR 10. The Audiencia Provincial upheld the remaining elements of the first-instance judgment. In particular, the Seville Audiencia Provincial indicated that the remarks made by the applicant had constituted a direct accusation of the crime of torture and that the applicant’s statements were a “deliberate way to personally and professionally discredit the police officers”. According to the Audiencia Provincial, the applicant was aware of the fact that what he was publicly saying was false. Additionally, it stated that the applicant’s statement could not be described as an act of public criticism of the intervention carried out by the police, nor had the applicant’s intent been to provide the public with information. On the contrary, the applicant had “simply claimed that he [had been] tortured by two police officers ..., something that [had been] false ... with the sole intent of attacking the honour of the police officers by maintaining that they had committed a crime”. The applicant’s statements had been a “conscious, disproportionate, unnecessary and unjustified act of accusing someone of having committed a crime which [had gone] beyond the legitimate criticism of a police action ...”.
29.  On 29 July 2013 the applicant lodged an amparo appeal with the Constitutional Court. In particular, the applicant relied on paragraphs a) and d) of Article 20 of the Spanish Constitution. The applicant stated that the narrated facts at the press conference had been true, as had been recognised by the domestic courts in the framework of the criminal proceedings, yet the only thing that had differed had been the intention attributable to the police officers. The applicant had used the term “torture” in a colloquial manner. This type of expression could not be limited by strict criminal-legal definitions. The applicant further stated that the term “torture” contained several meanings apart from the strictly criminal one. According to the Royal Academy of the Spanish Language (Real Academia Española ‑ hereinafter “the Academy”), the word torture meant “serious physical or psychological pain inflicted on somebody, with various methods and tools, with the purpose of obtaining a confession or as a means to punish”. However, according to this same institution, the word torture also meant “serious pain or suffering, or the thing that produces it”. The applicant further stressed that the word “torture” was in daily used to refer to any kind of mistreatment. Ultimately, the applicant argued that restricting the use of the word “torture” to those scenarios where all the criminal elements of the crime were present was an excessive restriction on the right to freedom of expression and, in particular, on a social debate which concerns the methods used by public powers in order to pursue a legitimate aim.
30.  On 21 October 2013 the Constitutional Court declared the amparo appeal inadmissible on the grounds that the applicant had not complied with the obligation to prove that his appeal was one of “special constitutional relevance”.