National and European standards of protection of human rights : the European Convention on Human Rights as a source of the constitutional adjudication on freedom of expression in Spain

Abstract

In 1993, representatives of the Constitutional Courts of European Countries held in Paris the IXth Conference of European Constitutional Courts. The general discussion panel was dedicated to the relationship between the domestic and the international systems of protection of Human Rights. In the General Report to the conference, the impact that both systems have on each other was pointed out. The A ver ("Let me see") case, decided ten years before by the Spanish Constitutional Court (hereinafter the Tribunal Constitucional), may be a good example of the existing interaction between the two systems: A publisher had been previously sentenced by a court for publishing an educational book on sexual matters with this title and had consequently brought the case before the Tribunal Constitucional. The Tribunal upheld the previous decision and ruled that morals were a constitutional legitimate limit to freedom of expression. The right to freedom of expression is expressly embodied in the Spanish Constitution. In the same provision a number of limits to this right are listed: morals are not mentioned among these. Moreover, the Tribunal did not state in its decision that, although not expressly mentioned, it can be deduced from the Constitution as a whole that morals should be regarded as a legitimate restriction to the freedom of speech: the only ground on which the Tribunal Constitucional can weigh morals against a fundamental constitutional right is by means of the European Convention on Human Rights, of which Spain is à member state and whose Article 10 expressly contemplates morals as a legitimate restriction to the freedom of expression.