## Facts

- Miguel Castells was a Spanish lawyer and an elected senator on the Herri Batasuna list, a political coalition associated with Basque pro-independence views.
- In 1979, Castells published an article in a weekly magazine criticizing the Spanish Government’s response to a series of killings in the Basque Country and suggesting that State actors were involved or complicit.
- The public prosecutor initiated criminal proceedings under Article 161 of the 1973 Spanish Criminal Code, which penalized those who “seriously insult, falsely accuse or threaten” the Government and allowed long-term imprisonment.
- During the criminal proceedings, Castells and his lawyer sought to introduce evidence to demonstrate the factual basis for statements in the article and to place them in context; the domestic court refused to admit the evidence, effectively preventing him from attempting to prove the truth of the allegations.
- Castells challenged the refusal to admit evidence in the Constitutional Court while the criminal case was ongoing; the Constitutional Court dismissed that challenge as premature.
- The trial court later convicted Castells of a lesser form of insulting the Government and sentenced him to one year and one day of imprisonment, together with a period of disqualification from public office.
- Castells notified the court that he would appeal, and the custodial sentence was stayed pending appeal.
- Castells pursued constitutional review after the conviction, arguing that the conviction violated freedom of expression; the Constitutional Court dismissed his appeal and left the conviction in place.
- Castells applied to the European Commission of Human Rights, alleging that his conviction and sentence violated Article 10 of the European Convention on Human Rights, and also raised a complaint under Article 14 taken with Article 10; the matter was referred to the European Court of Human Rights.

## Issues

1. Whether Castells’s criminal conviction and sentence for insulting the Government, based on a political article, interfered with his freedom of expression under Article 10(1), and if so whether the interference was justified under Article 10(2) as “prescribed by law,” pursuing a legitimate aim, and “necessary in a democratic society.”
2. Whether it was necessary to examine a separate complaint of discrimination under Article 14 taken together with Article 10 in light of the Article 10 complaint.

## Decision

- The European Court of Human Rights found that Spain’s conviction and sentence constituted an interference with Castells’s Article 10 rights.
- The Court accepted that the interference was “prescribed by law” (Article 161 of the Spanish Criminal Code) and that it pursued legitimate aims, including protection of reputation and the prevention of disorder.
- The Court held, however, that the interference was not “necessary in a democratic society,” given the political character of the article, Castells’s role as an opposition senator, the special importance of open debate about government conduct, and the severity of criminal sanctions.
- A significant factor in the proportionality analysis was the domestic courts’ refusal to allow Castells to present evidence supporting the truth of his allegations, which weakened the justification for imposing criminal punishment for statements made in political debate.
- The Court concluded that Spain violated Article 10 of the Convention.
- Having found a violation of Article 10, the Court did not consider it necessary to examine the Article 14 complaint taken with Article 10.
- The Court awarded just satisfaction (including sums for non-pecuniary damage and costs and expenses).

## Legal Principles

- Freedom of expression under Article 10 protects not only inoffensive speech but also expression that offends, shocks, or disturbs, because pluralism and tolerance are required in a democratic society.
- Political speech on matters of public interest receives strong protection, and restrictions on political debate demand especially strong justification.
- Interference with the speech of an elected representative, particularly an opposition parliamentarian, calls for the Court’s closest scrutiny because elected officials speak for constituents and contribute directly to democratic debate.
- The limits of acceptable criticism are wider for the Government than for private individuals, since government actions and omissions must remain open to public examination.
- Criminal laws that single out the Government for special protection against insult, especially when backed by imprisonment and disqualification from office, raise serious Article 10 concerns.
- Denying a speaker any real opportunity to substantiate contested factual allegations can weigh heavily against the proportionality of restricting speech in a political context.
- Imprisonment for non-violent expression in political debate will rarely be proportionate under Article 10, absent exceptional circumstances.

## Conclusion

Castells v. Spain held that Spain breached Article 10 by using criminal “insult to the Government” proceedings to punish an opposition senator for a political article on violence and government responsibility, particularly where domestic courts barred him from presenting evidence to support the truth of his allegations and imposed a custodial sentence with disqualification consequences, making the interference disproportionate in a democratic society.


Castells v. Spain, 4 EHRR 445 (1992)