CASE OF AGUILERA JIMÉNEZ AND OTHERS v. SPAIN
Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
5. 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. In 2001 they set up the trade union N.A.A. to defend their interests and those of the other delivery staff, and sat on its executive committee. 6. The trade union published a monthly news bulletin. On the cover of the bulletin for April 2002 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., who were watching the scene while waiting to take their turn to satisfy the manager like their colleague. Inside the bulletin were two articles which denounced, in crude and vulgar terms, 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 bulletin was distributed among the workers and displayed on the notice board of the trade union N.A.A. that was located on the company’s premises. 7. On 3 June 2002 the company notified the applicants of their dismissal on grounds of serious misconduct. 8. The applicants challenged that decision before Employment Tribunal no. 17 of Barcelona, which, in a judgment of 8 November 2002, dismissed their claims and found that the dismissals were justified, in accordance with Article 54 §§ 1 et 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 notice board 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, 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 Employment Tribunal no. 13 of Barcelona, in which A. and B. had appeared as witnesses against the applicants’ interests. The second 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 news bulletin was distributed to staff and displayed on the trade union’s notice board on the company’s premises. The tribunal observed at the outset that the cause of the dismissal was the content of the bulletin and not the applicants’ trade-union membership. As to the bulletin’s content, it 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, of two employees, and of the company itself. Lastly, it noted that the dismissal could not be declared null and void, since it was based on serious misconduct provided for by law, and found that the applicants’ fundamental rights had not been breached. 9. The applicants lodged an appeal against the decision. In a judgment of 7 May 2003 the Higher Court of Justice of Catalonia partly upheld the appeal in respect of two of the applicants, namely Mr Aguilera Jiménez and Mr Beltrán Lafulla. It noted that those two employees had been on temporary sick leave at the time of the incident on which the dismissal was based. Given that they had been absent from the company and that their direct participation in the distribution and publication of the bulletin could not be established, the Higher Court of Justice found that their dismissal had been unfair and ordered the employer either to reinstate them to their posts in the company under the same employment conditions as before, or to pay them appropriate compensation. It upheld the remainder of the judgment under appeal in respect of the other applicants. 10. The six 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 was not pertinent. 11. Relying on Article 24 (right to a fair hearing) of the 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, notified on 13 January 2006, that court found the appeal inadmissible for lack of constitutional content. As regards the complaint concerning the right to freedom of association, it took the view that there was not enough evidence to show that the applicants’ dismissal had been an act of reprisal on the part of the company because of the proceedings they had brought against it. Similarly, it found that the applicants had 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. The applicants had simply expressed their disagreement with the decisions rendered by the courts below, which had found in reasoned decisions devoid of arbitrariness that they had committed the acts of which the company had accused them in their letters of dismissal. 12. As regards the alleged violation of their right to freedom of association, combined with their right to freedom of expression, the Constitutional Court first noted that the latter did not encompass any right to insult others. It pointed out in this connection that the Constitution did not prohibit the use of hurtful, embarrassing or scathing expressions in any circumstances. However, freedom of expression did not protect vexatious expressions which, regardless of their veracity, were offensive or ignominious and were not pertinent for the purpose of conveying the opinions or information in question. Constitutional Court took the view that the applicants’ right to freedom of expression had not been breached, since the cartoons and expressions used by the applicants had been offensive and humiliating for the persons concerned and had impugned their honour and reputation. Moreover, those cartoons and expressions had not been a necessary contribution to the forming of an opinion on the facts that the applicants wished to denounce, and had not therefore been necessary for the exercise of freedom of expression in a trade-union context. 13. The Constitution “1. The following rights shall be recognised and protected: (a) the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, 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.” “Form and effects of disciplinary dismissal. ... 7. Justified dismissal shall entail the termination of the contract without any right of compensation ....”