Spain's Constitutional Court has ruled by a majority that insults against the country's flag are not protected by freedom of expression.
The Constitutional Court divided into two blocs on the question, passing by a single vote a ruling that establishes that indignities against the Spanish flag are a crime as they are not protected by the right to freedom of expression.
Judicial sources announced the court decision, which means that legitimate freedom of expression cannot be claimed as a defence by a Galician trade union leader who urged people to set fire to la puta bandera de España - translatable to "the fucking flag of Spain" in terms of the strength of the expletive - during a demonstration in 2014.
The Constitutional Court rejected an appeal originally presented in courts in Galicia alleging that the defendant's constitutional rights to freedoms of expression and ideology in the context of a criminal trial had been abused after he was convicted of the crime of insulting the flag, listed as an offence in article 543 of the Spanish Penal Code.
This article says: "Insults or indignities, whether by words, writing or actions, against Spain, its Autonomous Communities and its symbols and emblems, carried out publicly", will be a punishable offence. The penalty set down is a fine equivalent to seven to twelve months' jail.
Insults to flag "unrelated to wage claims"
Specifically, the expressions that led to the conviction were "here's the silence of the fucking flag" and "you have to set fire to the fucking flag." The court considered that these expressions were unnecessary for, and unrelated to, the wage claims being made by the defendant, as a trade union representative of the Galician Intersyndical Confederation. Due to all of these circumstances, the expressions were without the protection of the fundamental rights invoked, said the Constitutional Court.
The ruling has not yet been officially notified, with only the resolution being announced today and the full text of the ruling still to arrive. Five of the court's twelve judges voted against the decision: Andrés Ollero Tasara, Juan Antonio Xiol Ríos, Cándido Conde-Pumpido Tourón, Encarnación Roca Trías and María Luisa Balaguer Callejón.
Boye looks to Europe on the issue
Meanwhile, defence lawyer Gonzalo Boye is threatening to take the case to the European Court of Human Rights.
Pues nada... habrá que ver qué dicen en el TEDH y, mientras tanto, seguir haciendo el ridículo https://t.co/oLxOIB5c9E— Gonzalo Boye (@boye_g) December 15, 2020
Boye, who is lawyer for disqualified Catalan president, Quim Torra, among others, commented on the ruling in a tweet: "We shall see what the European Court of Human Rights says". He adds that "meanwhile, the Constitutional Court continues to embarrass itself."
The headline of the press note from the court included in the tweet says that "The Constitutional Court decides by a majority that insults to the Spanish flag are not protected by the freedom of expression".