OTEGI MONDRAGON v. SPAIN JUDGMENT
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60. There is nothing in the circumstances of the present case, in which
the impugned remarks were made in the context of a debate on an issue of
legitimate public interest, to justify the imposition of such a prison sentence.
Such a sanction, by its very nature, will inevitably have a chilling effect,
notwithstanding the fact that enforcement of the applicant’s sentence was
stayed. While that fact may have eased the applicant’s situation, it did not
erase his conviction or the long-term effects of any criminal record (see,
mutatis mutandis, Artun and Güvener, cited above, § 33, and Marchenko
v. Ukraine, no. 4063/04, § 52, 19 February 2009).
61. In view of the foregoing, even assuming that the reasons given by
the domestic courts could be said to be relevant, they are not sufficient to
demonstrate that the interference complained of was “necessary in a
democratic society”. Notwithstanding the margin of appreciation left to the
national authorities, the Court considers that the applicant’s conviction was
disproportionate to the aim pursued.
62. Accordingly, there has been a violation of Article 10 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN
CONJUNCTION WITH ARTICLE 10 OF THE CONVENTION
IN
63. The applicant alleged that he had been the victim of discrimination
based on his political opinions and his function as a spokesperson for the
Basque separatist movement. He relied on Article 14 of the Convention
taken in conjunction with Article 10. Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
64. The Court observes that this complaint is linked to the complaint
examined above and should therefore likewise be declared admissible.
65. Having regard to its finding in relation to Article 10 of the
Convention (see paragraph 62 above), the Court considers that it is not
necessary to examine separately the applicant’s complaint under Article 14
taken in conjunction with Article 10 (see, among other authorities, Bingöl,
cited above, § 44).