CASE OF PALOMO SÁNCHEZ AND OTHERS v. SPAIN
No violation of Art. 10
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen
10. The applicants live in Barcelona. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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 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.” 19. The relevant provisions of the Spanish Constitution read as follows: “1. The following rights shall be recognised and protected: (a) the right freely to express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction; ... (d) the right to receive and communicate true information by any means of dissemination. ... 2. The exercise of these rights may not be restricted by any prior censorship. ... 4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children.” “1. Everyone shall have the right to associate freely ... Freedom of association shall include the right to form trade unions or to join a trade union of one’s choosing, and the right for trade unions to establish confederations and to set up or join international trade-union organisations. No one shall be obliged to join a trade union. ...” “1. The employer may decide to terminate a contract of employment by dismissing the employee for serious and negligent failure to perform his or her obligations. 2. Non-compliance with contractual obligations shall include: ... (c) Verbal or physical attacks on the employer or persons working in the company, or members of their families living with them.” “... 7. Justified dismissal shall entail the termination of the contract without any right of compensation ...” 21. On 23 June 1971 the General Conference of the International Labour Organization (ILO) adopted Recommendation No. 143 concerning workers’ representatives, point 15 of which reads as follows: “1. Workers’ representatives acting on behalf of a trade union should be authorised to post trade-union notices on the premises of the undertaking in a place or places agreed on with the management and to which the workers have easy access. 2. The management should permit workers’ representatives acting on behalf of a trade union to distribute news sheets, pamphlets, publications and other documents of the union among the workers of the undertaking. 3. The union notices and documents referred to in this paragraph should relate to normal trade-union activities and their posting and distribution should not prejudice the orderly operation and tidiness of the undertaking.” 22. At its fifty-fourth session in June 1970, the International Labour Conference adopted a Resolution concerning trade-union rights and their relation to civil liberties. The Conference explicitly listed the fundamental rights essential for the exercise of freedom of association, in particular: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; and (e) the right to protection of the property of trade unions. 23. In 1994 the ILO published a report entitled “Freedom of Association and Collective Bargaining: Trade-Union Rights and Civil Liberties”. The relevant passages of that report read as follows: “Part I. Freedom of association and protection of the right to organise Chapter II. Trade-union rights and civil liberties Introduction ... 24. The Declaration of Philadelphia ... officially acknowledged the relationship between civil liberties and trade-union rights by proclaiming in Article I(b) that freedom of expression and of association are essential to sustained progress and referring in Article II(a) to the fundamental rights which are an inseparable part of human dignity. Since then, this relationship has been repeatedly affirmed and highlighted, both by the ILO’s supervisory bodies and in the Conventions, Recommendations and Resolutions adopted by the International Labour Conference. ... 27. The information available, in particular on the nature of the complaints submitted to the Committee on Freedom of Association, shows that the main difficulties encountered by trade-union organisations and their leaders and members relate to basic rights, in particular to the right to security of the person, freedom of assembly, freedom of opinion and expression, as well as the right to protection of trade-union property and premises. ... ... Freedom of opinion and expression 38. Another essential aspect of trade-union rights is the right to express opinions through the press or otherwise. The full exercise of trade-union rights calls for a free flow of information, opinions and ideas, and workers, employers and their organisations should enjoy freedom of opinion and expression at their meetings, in their publications, and in the course of their other activities. In cases in which the issue of a trade-union publication is subject to the granting of a licence, mandatory licensing should not be subject to the mere discretion of licensing authorities, nor should it be used as a means of imposing prior restraint on the subject matter of publications; in addition any application for such a licence should be dealt with promptly. ... Measures of administrative control – for example, the withdrawal of a licence granted to a trade-union newspaper, the control of printing plants and equipment, or the control of paper supply – should be subject to prompt and independent judicial review. 39. An important aspect of freedom of expression is the freedom of speech of delegates of workers’ and employers’ organisations meetings, conferences and reunions, and in particular to the International Labour Conference. ... ... State of emergency ... 43. The Committee considers that the guarantees set out in the international labour Conventions, in particular those relating to freedom of association, can only be effective if the civil and political rights enshrined in the Universal Declaration of Human Rights and other international instruments, notably the International Covenant on Civil and Political Rights, are genuinely recognised and protected. These intangible and universal principles, the importance of which the Committee wishes to emphasise particularly on the occasion of the 75th anniversary of the creation of the ILO and the 50th anniversary of the Declaration of Philadelphia, should constitute the common ideal to which all peoples and all nations aspire.” 24. The fifth edition (revised) of the Digest of Decisions and Principles of the Committee on Freedom of Association of the Governing Body of the International Labour Office, published in 2006, contains a summary of the principles formulated by that Committee in the context of individual or collective complaints concerning alleged violations of trade-union rights. The general principles concerning freedom of opinion and expression include the following: “154. The full exercise of trade-union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organisations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade-union activities. Nevertheless, in expressing their opinions, trade-union organisations should respect the limits of propriety and refrain from the use of insulting language. (See the 1996 Digest, para. 152; 304th Report, Case No. 1850, para. 210; 306th Report, Case No. 1885, para. 140; 309th Report, Case No. 1945, para. 67; 324th Report, Case No. 2014, para. 925; and 336th Report, Case No. 2340, para. 652.) 155. The right to express opinions through the press or otherwise is an essential aspect of trade-union rights. (See the 1996 Digest, para. 153; 299th Report, Case No. 1640/1646, para. 150; 302nd Report, Case No. 1817, para. 324; 324th Report, Case No. 2065, para. 131; 327th Report, Case No. 2147, para. 865; 328th Report, Case No. 1961, para. 42; 332nd Report, Case No. 2090, para. 354; and 333rd Report, Case No. 2272, para. 539.) 156. The right to express opinions without previous authorisation through the press is one of the essential elements of the rights of occupational organisations. (See the 1996 Digest, para. 154.) 157. The freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticise the government’s economic and social policy. (See the 1996 Digest, para. 155.) ... 163. The prohibition of the placing of posters stating the point of view of a central trade-union organisation is an unacceptable restriction on trade-union activities. (See the 1996 Digest, para. 467.) ... 166. The publication and distribution of news and information of general or special interest to trade unions and their members constitutes a legitimate trade-union activity and the application of measures designed to control publication and means of information may involve serious interference by administrative authorities with this activity. In such cases, the exercise of administrative authority should be subject to judicial review at the earliest possible moment. (See the 1996 Digest, para. 161; 320th Report, Case No. 2031, para. 172; and 327th Report, Case No. 1787, para. 341.) ... 168. While the imposition of general censorship is primarily a matter that relates to civil liberties rather than to trade-union rights, the censorship of the press during an industrial dispute may have a direct effect on the conduct of the dispute and may prejudice the parties by not allowing the true facts surrounding the dispute to become known. (See the 1996 Digest, para. 163.) 169. When issuing their publications, trade-union organisations should have regard, in the interests of the development of the trade-union movement, to the principles enunciated by the International Labour Conference at its thirty-fifth session (1952) for the protection of the freedom and independence of the trade-union movement and the safeguarding of its fundamental task, which is to ensure the social and economic well-being of all workers. (See the 1996 Digest, para. 165.) 170. In a case in which a trade-union newspaper, in its allusions and accusations against the government, seemed to have exceeded the admissible limits of controversy, the Committee pointed out that trade-union publications should refrain from extravagance of language. The primary role of publications of this type should be to deal with matters essentially relating to the defence and furtherance of the interests of the unions’ members in particular and with labour questions in general. The Committee, nevertheless, recognised that it is difficult to draw a clear distinction between what is political and what is strictly trade union in character. It pointed out that these two notions overlap, and it is inevitable and sometimes normal for trade-union publications to take a stand on questions having political aspects, as well as on strictly economic or social questions. (See the 1996 Digest, para. 166.)” 25. The American Convention on Human Rights has a special Additional Protocol concerning economic, social and cultural rights, the “Protocol of San Salvador”. Adopted and opened for signature on 17 November 1988, it entered into force on 16 November 1999. Article 8 of that Protocol, entitled “Trade-union rights” reads as follows: “1. The States Parties shall ensure: (a) The right of workers to organise trade unions and to join the union of their choice for the purpose of protecting and promoting their interests. As an extension of that right, the States Parties shall permit trade unions to establish national federations or confederations, or to affiliate with those that already exist, as well as to form international trade-union organisations and to affiliate with that of their choice. The States Parties shall also permit trade unions, federations and confederations to function freely; (b) The right to strike. 2. The exercise of the rights set forth above may be subject only to restrictions established by law, provided that such restrictions are characteristic of a democratic society and necessary for safeguarding public order or for protecting public health or morals or the rights and freedoms of others. Members of the armed forces and the police and of other essential public services shall be subject to limitations and restrictions established by law. 3. No one may be compelled to belong to a trade union.” 26. In its Advisory Opinion OC-5/85, the Inter-American Court of Human Rights emphasised the fundamental nature of freedom of expression for the existence of a democratic society, stressing among other things that freedom of expression was a sine qua non for the development of trade unions. It found as follows (paragraph 70 of the Opinion): “Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.” 27. Comparative-law research has shown that the disciplinary powers of employers in the member States of the Council of Europe are very diverse. There is a convergence of legal systems among the thirty-five countries examined: they all provide for and organise employees’ freedom of expression and trade-union freedom, usually by means of norms of constitutional value, or, where that is not the case, by legislative regulations. Employees serving as representatives benefit from special protection to help them discharge their duties. The regulations in all countries, in order to reconcile the exercise of this right with the essential rights and freedoms of others, fix rules providing for penalties in cases of abuse of the right to freedom of expression. The powers vested in employers allow, if necessary, for the exercise of disciplinary action against an employee or staff member whose conduct can be characterised as improper exercise of his freedom of expression. The case-law in such matters is consistent and shows that there is a systematic examination of proportionality between the dismissal and the conduct on which it is based. 28. The domestic-law instruments provide for the punishment of any conduct by an employee that is capable of infringing the rights and freedoms of others. The relevant rules may, firstly, be laid down by a Criminal Code, or by provisions concerning the possibility of bringing an action to establish liability. In most cases, criminal notions such as defamation, damage to honour or reputation, or insults will enable the person claiming to be a victim of such infringement to bring proceedings to establish the liability of the person who made the comments at issue. Rules in Labour Codes or norms applicable to public servants will also govern the exercise of freedom of expression of staff members, and if necessary provide for the punishment of any abuse. Similar limitations may be imposed on public officials, whether or not they have “civil servant” status. 29. Disciplinary authority is one of the essential prerogatives of the employer, whether private or public. In this connection, employers have a broad discretion to impose the sanction that they consider the best adapted to the accusations against the employee; the scale of possible sanctions encompasses the power to dismiss a person who has seriously compromised the interests of the company or the public service. In parallel, this power of dismissal is accompanied by a prohibition on dismissing employees on grounds relating to trade-union activity. A measure of dismissal may be based on misconduct or on a legitimate ground. In the first case, it relates to a given – identified – form of conduct. In the second, the conduct is considered in general terms. 30. The proportionality of a measure of dismissal in relation to the conduct of the employee concerned underlies all the legislation analysed. 31. The applicable law in the States examined shows that any abuse of the freedom of expression afforded to employees or public servants is always regarded as a reprehensible fact capable of justifying disciplinary measures that could go as far as dismissal. For that purpose, factual elements of an objective nature are taken into account, such as: (i) the seriousness of the misconduct; and (ii) the characterisation of the comments, the extent of their publication, and also certain subjective elements. The latter include the personal situation of the employee, any abuse of freedom of expression and the question whether the conduct falls outside “normal” trade-union activity. 32. In all the countries studied, the general rules are clear and allow the employee’s right to freedom of expression to be balanced against the rights and prerogatives of the employer. Their implementation is more problematic, since a restriction on a fundamental right can only be accepted if, having regard to the measure decided, it is proportionate to the aim pursued. Only through a case-by-case approach is it possible to grasp the substance of the jurisprudential solution adopted in each type of situation.