February 27, 2021

The Constitutional Court concludes that freedom of expression does not protect calls to burn the flag with a divided court

The Constitutional Court has agreed this Tuesday to dismiss the appeal of a Galician trade unionist who was sentenced in 2014 to a fine for asking “to set fire to the fucking flag” and to affirm “here you have the silence of the fucking flag” in the during a trade union protest in front of the Ferrol Arsenal.

The conservative sector of the Constitutional is broken because one of its members defends that freedom of expression protects calls to burn the flag

The conservative sector of the Constitutional Court is broken because one of its members defends that freedom of expression protects calls to burn the flag

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An adjusted majority of magistrates have considered that these expressions were unnecessary for the wage claims that were the object of the protest, that they were not related to said claims and that, therefore, it is understood that they were made “on the sidelines” and “without the protection ”Of their right to freedom of expression and ideology.

The court has adopted this split decision with a close six-to-five vote. Judge Encarnación Roca, Judges Andrés Ollero, Juan Antonio Xiol, Cándido Conde-Pumpido and Judge María Luisa Balaguer have announced votes.

In November, the conservative Andrés Ollero, who had been commissioned to write the sentencing statement, took the plenary session an acquittal proposal considering that freedom of expression and the right to trade union activity are above the limits set by the crime of outrage to the flag.

What was being studied was not whether Fragoso said those words, but whether he would have had the right to pronounce them. After hours of debate, Ollero’s ideological bloc turned its back on him: six magistrates voted against his sentence and five supported it. The writing of a new sentence was then commissioned according to the direction of the vote of the narrow majority.

With its decision, the Constitutional Court draws a sentence that would be a blow to the Spanish navy, which is very involved in the process. And it also avoids being at the center of the debate on national symbols at a time when the presence of Vox in Congress has pushed the entire right to overact on the need to take care of the national insignia. The decision adopted places the Constitutional Court at risk of being corrected once again by the Strasbourg Court, in whose jurisprudence the trade unionist’s appeal is applicable.


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