A Poll on Palomo Sánchez

We are pleased to be organising our first poll to ask our readers about their opinion!

The poll concerns the recent judgment of Palomo Sánchez v. Spain in which the Grand Chamber of the Court ruled that the Spanish courts had not failed their positive obligation to protect the freedom of expression of four employees who were dismissed by their employer for having insulted two of their co-workers and a member of management. The employees, who were also executive members of a trade union they had set up, were dismissed after they had published two articles and a cartoon in the union newsletter, severely criticising management and specifically denouncing two of their co-workers for having testified in favour of the company in proceedings the applicants had brought against it in the context of a social dispute. In its judgment the Grand Chamber held in particular that, due to their offensive and insulting character, the cartoon and articles overstepped the bounds of acceptable criticism of private individuals under article 10 ECHR. The Court held that the sanction of dismissal was not disproportionate and that article 10, read in the light of article 11, had not been violated.

Considering the crucial importance of Palomo Sánchez for trade union freedom of expression we are curious about the opinion of our readers on one particularly controversial aspect of the case and the judgment: the cartoon and its assessment by the Court.

Participate in our poll and find out what the other voters thought of it! Should you wish to clarify your response, do not hesitate to use the comment section below the post.

Translation from left to right (by Spanish native speaker): “Slurp, slurp, is everything going well, Mr. Garcia?”; “I already told you that you were FREED as long as you kept me well-served … SERVED!”; “Listen, this one has jumped the queue!”; “Shut up … or the “sucking” up will otherwise be over for us”.

3 thoughts on “A Poll on Palomo Sánchez

  1. This poll does not work for me. I think the correct answer should be: “This cartoon is protected speech, but that is no reason for the ECtHR to interfere in employment law.” Union membership and leadership should be protected under art. 11, and dismissal for core union activities is should be forbidden under that article, but this is a whole different matter. Employers should have significant freedom to maintain peace & prosperity within their organisations.

  2. Now that we have reached 50 votes on the poll I thought it would be interesting to translate the votes into a Grand Chamber ruling. Just for fun. I think we should not attempt to interpret the votes of the poll, nor assign them any signifance beyond that which they hold as votes of unidentified readers of our blog. Moreover, we should not forget that a large majority of those who read the post decided not to vote (total views are difficult to estimate because the post appears in its entirety on the front page, but there are at least 175 thus far).

    That said, translated into a Grand Chamber ruling the current votes would yield the following result: 13-4 judgment finding a violation of article 10, with 4 concurring opinions (disproportionality of the sanction).

    Should we reach 100 votes, I might repeat the calculations. Again simply for fun.

    This exercise also made me think of something. What if within the majority of the GC opinions are divided after the public hearing? What if – let’s imagine – in a freedom of expression case 5 judges are of the opinion that article 10 has not been violated, 7 judges are of the opinion that article 10 has been violated because the reasons for the interference were relevant, but not sufficient, while the remaining 5 judges are of the opinion that the reasons were sufficient, but found the sanction to be disproportionate in the proportionality sensu stricto exercise ? How would the judgment then turn out? Because the 7 judges represent a minority in the GC of 17. They thus need the other 5 judges who found the reasons sufficient to come to a majority. Would (some of) the 7 then compromise and find a violation on the proportionality sensu stricto basis only? Or would (some of) the 5 judges agree to subscribe to a judgment finding the reasons for the interference not sufficient and then consider expressing a concurring opinion? I can imagine this sort of situation – if it actually can take place in the Court’s drafting procedure – would call for extensive deliberation and on compromise on the part of several judges to come up with a well reasoned, balanced judgment that attracts a majority of the judges. My respect for the judges of the ECtHR was already immensely big. It just got a bit bigger.

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