PROCEDURE

The case originated in six applications (nos. 28955/06, 28957/06, 28959/06, 28964/06, 28389/06 and 28961/06) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Spanish nationals, Mr Juan Manuel Palomo Sánchez, Mr Francisco Antonio Fernández Olmo, Mr Agustín Alvarez Lecegui, Mr Francisco José María Blanco Balbas, Mr José Antonio Aguilera Jiménez and Mr Francisco Beltrán Lafulla (“the applicants”), on 13 July 2006.

The applicants were represented before the Court by Mr L. García Quinteiro, a lawyer practising in Barcelona. The Spanish Government (“the Government”) were represented by their Agent, Mr F. Irurzun Montoro, State Counsel.

In their applications, the applicants complained, among other things, that they had been dismissed by way of reprisal for belonging to a trade union and on account of its demands, on the pretext of allegedly offensive content in the union’s newsletter. They relied on Articles 10 and 11 of the Convention.

The applications were allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 11 December 2008 the President of the Section decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time, as allowed by former Article 29 § 3 (now Article 29 § 1) of the Convention and Rule 54A.

On 17 November 2009 the Chamber, composed of Josep Casadevall, President, Elisabet Fura, Corneliu Bîrsan, Alvina Gyulumyan, Egbert Myjer, Luis López Guerra and Ann Power, judges, and Santiago Quesada, Section Registrar, decided, under Rule 42 § 1, to join the proceedings in the applications registered under nos. 28389/06, 28955/06, 28957/06, 28959/06, 28961/06 and 28964/06. It declared admissible the applications (nos. 28955/06, 28957/06, 28959/06, 28964/06) lodged by Mr Juan Manuel Palomo Sánchez, Mr Francisco Antonio Fernández Olmo, Mr Agustín Alvarez Lecegui and Mr Francisco José María Blanco Balbas (“the applicants”) and inadmissible those (nos. 28389/06 and 28961/06) lodged by Mr José Antonio Aguilera Jiménez and Mr Francisco Beltrán Lafulla. On 8 December 2009 the Chamber delivered a judgment (Aguilera Jiménez and Others v. Spain) in which it held, by six votes to one, that there had been no violation of Article 10 of the Convention and that no separate question arose under Article 11 of the Convention.

On 7 March 2010 the applicants requested the referral of the cases to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73, arguing that there had been a violation of Articles 10 and 11. On 10 May 2010 the panel of the Grand Chamber granted that request.

The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

The applicants and the Government filed memorials before the Grand Chamber.

A hearing took place in public in the Human Rights Building, Strasbourg, on 8 December 2010 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr F. Irurzun Montoro, State Counsel, Agent; (b) for the applicants Mr L. García Quinteiro, lawyer, Counsel. The Court heard addresses by them.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants live in Barcelona.

They were employed as delivery men by the company P., against which they brought several sets of proceedings in employment tribunals. The applicants sought to secure recognition by the employer of their special “salaried worker” status, as confirmed by judgments of 2 May and 30 December 1995 of the High Court of Justice of Catalonia, in order to be covered by the corresponding social-security regime. Representatives of a committee of non-salaried delivery staff in the company P. had testified against them in those proceedings.

On 21 May 2001 the applicants set up the trade union Nueva Alternativa Asamblearia (NAA) to defend their interests and those of the other delivery staff who were under pressure from the company P. to renounce their claim to salaried status. The applicants joined the union’s executive committee. On 3 August 2001 the applicants informed the company P. of the setting-up of a branch of the trade union inside the company, of its composition, and of their appointment as members of the executive committee of that workplace branch. Mr Juan Manuel Palomo Sánchez was the trade-union representative, Mr Francisco Antonio Fernández Olmo the treasurer, Mr Agustín Alvarez Lecegui the press and communications officer and Mr Francisco José María Blanco Balbas the organisation officer. No changes concerning the appointment of the union members or their duties have taken place since the union was formed.

The trade union NAA published a monthly newsletter. The March 2002 [sic] issue reported on the judgment of 2 April 2002 of Barcelona Employment Tribunal no. 13, which had partly upheld the applicants’ claims, ordering the company P. to pay them certain sums in respect of salaries owed to them. On the cover of the newsletter, a cartoon with speech bubbles showed a caricature of the human resources manager, G., sitting behind a desk under which a person on all fours could be seen from behind, together with, to one side, A. and B., also employees of the company P. and representatives of a committee of its non-salaried delivery workers, who were watching the scene while waiting to take their turn to satisfy the manager. Inside the newsletter were two articles which vehemently denounced the fact that those two individuals had testified in favour of the company P. in proceedings that the applicants had brought against their employer. The newsletter was distributed among the workers and displayed on the noticeboard of the trade union NAA which was located on the company’s premises.

On 3 June 2002 the company notified the applicants of their dismissal on grounds of serious misconduct, namely for impugning the reputations of G., A. and B., under Article 54 §§ 1 and 2 (c) of the Labour Regulations, which provide for the termination of a contract of employment where an employee is guilty of serious and negligent failure to perform his or her contractual obligations.

The applicants challenged that decision before Barcelona Employment Tribunal no. 17, which, in a judgment of 8 November 2002, dismissed their claims and found that the dismissals were justified, in accordance with Article 54 §§ 1 and 2 (c) of the Labour Regulations. The tribunal took the view that the company’s decision to dismiss the applicants had been based on a genuine and serious cause, namely the publication and display on a noticeboard inside the company of a cartoon with speech bubbles and two articles which were offensive and impugned the dignity of the persons concerned. The first article, entitled “Whose witnesses? Theirs, of course”, contained caricatures of A. and B., showing them gagged by a handkerchief tied behind their heads, and the text underneath read as follows: “We knew who they were and how they behaved, but we didn’t know how far they were prepared to go in order to hold onto their seats and cushy jobs without doing anything. As employees of P. we earn our living by selling goods in the street. A. and B. earn theirs by selling the workers in the courts. Not content with doing this simply by signing agreements that go against the collective interest, they’ve now gone a step further – they rob and steal with total impunity, in broad daylight, with the confidence of men who feel totally untouchable. They play at being gods. ... but they, the chairman and secretary of the staff representatives, agreed, just like guard dogs, to roll over and frolic in return for a pat on the back by their master. ...” The tribunal noted that the text was a response to what had happened during proceedings brought by the applicants before Barcelona Employment Tribunal no. 13, in which A. and B. had appeared as witnesses against the applicants’ interests and in favour of their employer. The article entitled “When you’ve rented out your arse you can’t shit when you please” read as follows: “If you belong to a works council and you have to sign agreements with your employers that will never be honoured, just to keep you quiet, and agree to changes that only benefit their cronies, and to pay cuts and other sell-outs, then you’ve swapped your dignity for an armchair, [and] you have the dubious merit of achieving the same level of infamy as politicians and policemen. You see, you shut up and you shrewdly agree to all sorts of shenanigans. When you’ve rented out your arse, you can’t shit when you please. If you’re a despicable ‘professional trade unionist’ and you’ve thus sold your soul to the union, you’ll never have a surge of sincerity, because your status would be threatened. You say what the union tells you to say, and as the unions are ‘condoms’ on freedom, your lips are sealed just like your anal sphincter, because you’ve rented out your arse and you can’t shit when you please. You can see the injustices meted out on your colleagues, the totally irrational way of dealing with their problems and the constant persecution to which they are subjected, but say nothing, for fear of drawing attention to yourself. Once upon a time, in the old days, you were a rebel who criticised the system – you would curse conventionalism and rant against the rules and regulations. You were caustic, dynamic, cutting, impulsive, jovial. But a couple of favours received have gradually cooled your fiery temperament, stoked your self-esteem and put the dampers on your feelings. From time to time you have a pang of nostalgia and you would like to fart, but your sphincter is sealed, because you’ve rented out your arse and can’t shit when you please. You’re fed up with your work, pissed off, anxious, stressed and in despair, because of the longer working hours and the responsibilities, products, promotions and pressures. You could work anywhere, do anything without having to get up at the time others go to bed. You could break everything up, tear it to pieces, crush and demolish it all ... but your hands are tied by credits, IOUs and debts. You are crushed by your new SUV, your children’s after-school activities, and the twenty-five year mortgage on your semi-detached house. And you let yourself be humiliated, you swallow your pride, you shut up and you accept, because when you’ve rented out your arse, you can’t shit when you please.” The newsletter was distributed to staff and displayed on the trade union’s noticeboard on the company’s premises. The employment tribunal observed at the outset that the cause of the dismissal was the content of the newsletter and not the applicants’ trade-union membership. It referred in its judgment to the exercise of the right to freedom of expression in the context of labour relations and to the fact that it was not unlimited. It found that the limits to this right had to be interpreted in accordance with the principle of good faith, which in labour relations had to involve respect for the interests of the employer and the minimum requirements of coexistence in a professional environment. The judgment reiterated the Constitutional Court’s case-law to the effect that the right to respect for freedom of expression was subject to limits derived from labour relations, since the contract of employment created a series of rights and reciprocal obligations that circumscribed the exercise of the right to respect for freedom of expression. For that reason, certain manifestations of this right that might be legitimate in other contexts were not legitimate in the context of labour relations, even though the requirement to act in good faith did not always imply a duty of loyalty to the point of subjecting the worker to the employer’s interests. As to the newsletter’s content, the tribunal took the view that the cartoon and speech bubbles on the cover, together with the articles inside, were offensive and exceeded the limits of freedom of expression and information, impugning the honour and dignity of the human resources manager and of delivery men A. and B., and damaging the image of the company P. Lastly, it noted that the dismissal could not be declared null and void, since it was based on serious misconduct as provided for by law, and found that the applicants’ fundamental rights had not been breached.

The applicants appealed. In a judgment of 7 May 2003, the High Court of Justice of Catalonia upheld the judgment under appeal in so far as it concerned the applicants. The court referred, among other things, to the limits imposed by the principle of good faith between parties to a contract of employment and to the necessary balance that judicial decisions had to strike between a worker’s obligations under the contract and his freedom of expression. The balancing exercise had to enable it to be determined whether or not the reaction of the company that dismissed the employee was legitimate. For the court, the publication of the offending drawing and articles had clearly been harmful to the dignity of the persons concerned and had overstepped the limits of admissible criticism, as the exercise of freedom of expression did not justify the use of insulting, offensive or vexatious expressions that went beyond the legitimate exercise of the right to criticise and clearly impugned the respectability of the persons concerned. The company P. had, moreover, duly shown that the applicants’ dismissal was not a measure of reprisal or punishment, but was based on a genuine, serious and sufficient cause for deciding to terminate their contracts of employment.

The applicants lodged an appeal on points of law, seeking harmonisation of the relevant case-law. In a decision of 11 March 2004, the Supreme Court dismissed their appeal on the ground that the decision produced for purposes of comparison, namely a judgment of the High Court of Justice of Madrid of 31 July 1992, was not pertinent.

Relying on Article 24 (right to a fair hearing) of the Spanish Constitution, and on Articles 20 and 28 taken together (freedom of expression and association), the applicants lodged an amparo appeal with the Constitutional Court. In a decision of 11 January 2006, served on 13 January 2006, the Constitutional Court found the appeal inadmissible for lack of constitutional content. The decision reads as follows: “... Firstly ... there is not enough evidence to show that the [appellants’] dismissal was an act of reprisal on the part of the respondent company because of the judicial proceedings they had brought against it to assert their rights ... Secondly, as to the [alleged] interference with trade-union freedom guaranteed by Article 28 of the Constitution (this complaint incorporating the appellants’ complaint under Article 14 of the Constitution in so far as they alleged discrimination on trade-union grounds), this is inadmissible as [the appellants] have not provided sufficient evidence to show that the company’s action was intended to restrict, hamper or prevent the exercise of their right to freedom of association, on account of their union membership or activities in a trade union. In line with what this court has repeatedly said, such evidence does not consist of a mere allegation of a constitutional violation but must be sufficient for it to be inferred that the violation could have been constituted ... which is not the case here, since the circumstances alleged do not give rise to any suspicion as to the potential violation in question. In their allegations, the appellants have simply expressed their disagreement with the decisions rendered by the courts below, which found in decisions giving reasons and not being manifestly unreasonable that they had committed the acts of which the company had accused them in their letters of dismissal. Thirdly, there has not been a breach of Article 28 § 1 of the Constitution taken together with Article 20 § 1 (a), in the form of an infringement of the appellants’ right to freedom of expression in the context of their union activity, since this fundamental right does not encompass any right to insult others. As the Court held recently in judgment no. 39/2005 of 28 February (legal ground 4), reiterating its case-law, although the Constitution does not prohibit the use of hurtful, embarrassing or vituperative expressions in every circumstance, the constitutional protection afforded by Article 20 § 1 (a) of the Constitution does not, however, extend to absolutely vexatious expressions which, taking into account the actual circumstances of the case and regardless of their veracity or lack of veracity, are offensive or defamatory and are not pertinent for the purpose of conveying the opinions or information in question. The application of that jurisprudence to the present case leads the Court to the conclusion that the appellants’ right to freedom of expression has not been infringed, since they used that right in an excessive manner by means of value judgments expressed through cartoons and comments that were offensive and humiliating for the persons concerned and impugned their honour and reputation. [Those cartoons and comments] were not necessary for others to form an opinion about the facts of which the appellants wished to complain, and were therefore gratuitous and not necessary for the exercise of freedom of expression in a trade-union context.”