By choosing only the criminal law avenue, the applicant was deprived of the possibility of redress, through the civil proceedings, for the alleged damage to his reputation.
JUDGMENT
Mas Gavarró v. Spain 10.11.2022 (app. no. 26111/15)
SUMMARY
The case concerned the publication of a number of articles in the daily newspaper El Mundo which
according to the applicant had damaged his reputation.
As the Government pointed out, the applicant could have brought an action for the publication of a
correction in the newspaper within three days, or could have initiated the special procedure for the
protection of the right to one’s honour in order to obtain redress for the alleged damage to his
reputation.
By choosing only to use the criminal-law avenue, the applicant had deprived himself of the
possibility of securing redress for the alleged infringement of his rights through the civil procedure
available to him. He had thus limited the scope of the examination by the domestic courts, which
had been able only to rule on the lack of gravity of the alleged damage for the purposes of the
criminal law.
The applicant had thus failed to show that the State had offered him insufficient protection and that
there had been an infringement of his right to respect for his reputation.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Artur Mas Gavarró, is a Spanish national who was born in 1956 and lives in Barcelona.
From December 2010 to January 2016 he was President of the Government of the Autonomous
Community of Catalonia (Generalitat de Catalunya).
On 16 November 2012, during the election campaign for the presidency of the Generalitat, the daily
newspaper El Mundo published an article alleging that Mr Mas, then a candidate for re-election,
held bank accounts abroad into which bribes had been paid. The article was based on an alleged
draft police report (borrador) sent to journalists which revealed the existence of an investigation by
the National Police in the context of judicial proceedings. The proceedings, known as the “Palau
case”, concerned the alleged unlawful financing of Mr Mas’s political party, Convergència i Unió.
The article included the following wording: “The Central Unit for Economic and Fiscal Crime (UDEF)
denounces in a ‘draft report’ the existence in Switzerland and Liechtenstein of accounts held by
Artur Mas, father and son …” Inside the newspaper there was a further article referring to the UDEF
report.
On the same day, 16 November 2012, the investigating judge in the “Palau case” reacted to the
publication and stated that he did not know of the UDEF’s draft report, affirming that he had not
authorised an investigation into Mr Mas in that connection. The judge’s statement was published in
the same newspaper on 17 November 2012. The Criminal Investigation Division of the Catalan police
also reacted and denied some of the assertions made in the articles.
On 19 November 2012 the newspaper published extracts from the report in question.
On 22 November 2012 a representative of the Unified Police Union presented, at a press
conference, a copy of a report he claimed to have received anonymously. This seventeen-page
document, on UDEF letter-headed paper, was neither dated nor signed. The journalists admitted
that they had relied on that document when writing their article.
On the same day, the investigating judge in the Palau case stated that he had spoken to the UDEF
chief superintendent and that, according to the latter, since July 2012 his unit had not drawn up any
report or draft report on the case. The judge also mentioned that an investigation into the existence
of the document was ongoing. On 29 November 2012 the chief superintendent confirmed that the
report had not been drawn up by the UDEF or any of its officials.
On 19 November 2012 Mr Mas lodged a criminal complaint for insults and misrepresentation against
the journalists who had written the article and against the newspaper’s publisher. A judicial
investigation was opened by the investigating judge.
On 22 October 2013 the judge made a final decision to discontinue the case. Mr Mas appealed
against that decision. On 2 June 2014 the discontinuance was upheld by the Madrid Audiencia
Provincial.
Relying on Article 18 of the Constitution (right to one’s honour), Mr Mas then lodged an amparo
appeal with the Constitutional Court, which declared the appeal inadmissible on the grounds of a
manifest absence of a violation of a fundamental right that fell within the protection of that appeal
procedure.
THE DECISION OF THE COURT…
Article 8
As regards the remedies used by the applicant, the Court observed that his criminal complaint had
been lodged against the two journalists of the daily newspaper El Mundo who were responsible for
the publication of the offending article and, in the alternative, against the newspaper’s publisher.
The main aim of the procedure had been to determine whether the journalists’ conduct had been
serious enough to constitute the offence of insults or misrepresentation. As the proceedings had
been discontinued, the Criminal Court had no jurisdiction, in accordance with the legislation, to rule on the existence of any civil liability resulting from the offence. The same was true of the decision by the Madrid Audiencia Provincial, which confirmed the lack of negligence on the part of the
journalists on the basis of the material at their disposal when they wrote their article.
The Court noted that the Spanish legislature had chosen to criminalise only certain serious forms of
insults or misrepresentation, not all forms of defamation or damage to reputation. There was no
evidence to suggest that the applicant had brought civil proceedings claiming that the publications
had infringed his right to the protection of his personal reputation. Such proceedings, if successful,
could have ensured that his good reputation was restored.
As the Government pointed out, the applicant could have brought an action for publication of a
correction or could have initiated the special procedure for the protection of the right to one’s
honour in order to obtain redress for the possible infringement of his right to the protection of his
reputation.
By choosing only to use the criminal-law avenue, the applicant had deprived himself of the
possibility of securing redress through the civil procedures available to him. He had thus limited the
scope of the examination by the domestic courts, which had been able only to rule on the lack of
gravity of the alleged infringement for the purposes of criminal law.
The application was therefore manifestly ill-founded and had to be rejected.
The Court, unanimously, declared the application inadmissible.
