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Asunción de la Iglesia, Professor of Constitutional Law at the University of Navarra, Spain.
Escraches and the right to demonstrate
The author considers that we would be making a mistake that could affect peaceful coexistence by forgetting the fair play necessary in a democracy and the civic obligations of both parties, whether they are politicians or simply in the spotlight.
The right to demonstrate is a fundamental right in a democratic system protected by international texts, with particular emphasis for us in article 11 of the European Human Rights agreement and internally in art. 21 of the Spanish Constitution. It must be guaranteed, which also means that it cannot be denaturalized without risk to the category itself. Any meeting on public roads is not a legitimate exercise of the right to demonstrate. To its defining elements (in addition to the plural subject exercising it, the place of exercise, the transitory nature and the lawfulness of the purpose) are added the external limits (the rights of third parties) and the requirements imposed by law (Organic Law 9/1983). Precisely, among the latter is the prior communication to the authority so that the exercise of the right to demonstrate and its reconciliation with the rights of third parties affected and the defense of public order can be guaranteed. In the case of the escraches, this prior communication is not usually observed and they are born marginalizing themselves from the legal system. This does not make them a crime but, of course, it is a relevant defect when assessing the reasonable solution when the demonstration affects the rights of third parties.
Another peculiarity of this new form of protest, which affects the lawfulness of the purpose, is that it singles out a passive and patient subject of the collective action because he or she belongs to a collective: in this case that of politicians or public officials of a specific party, with the intention of forcing a change in the subject's position in the political decision. Who knows if on another occasion the targets of the act may be judges, doctors, policemen, journalists or sportsmen of the team if it disappoints the fans? Whether the protest is in front of a private home or in moments of private life, escrache is closer to an act of harassment or harassment than to a collective exercise of freedom of expression deserving the protection of a fundamental right. The subject "escracheado" - excuse me for the licence- becomes goal in front of the protesting group , which usually is known to be forceful in its forms. Just the confrontation between the individual or family -group of protest generates a status of imbalance in the positions that gives it the intimidating scope and that is relevant when determining the lawfulness of the purpose.
The rights of third parties affected include the right to private and family life, the inviolability of the home as interpreted by the ECtHR and, where appropriate, freedom of movement, but there could also be the moral integrity of art. 15 or the right to honor of art. 18, among others. It is true that public demonstrations involve nuisances and noises that must be endured; this is well known. But beyond the normal annoyance, in the case of the escraches it is sought directly as an end in itself. Thus the affectation of rights is not an indirect cause but goal to give notoriety to the protest action and thereby influence the political action of those affected and counterparts.
Although today, in the line of growing populism, the trend is to point the finger at the politician, we would fall into a mistake that can affect peaceful coexistence, forgetting the fair play necessary in democracy and the civic obligations of both, whether they are politicians or simply in the spotlight. In particular, the politician discussion in other forums. Just as their exhibition superior to criticism does not create the right to insult them or anyone else, there is no right to invade their privacy.
Confusing the plans is a bad precedent. That is why the judge's order to purpose of the escrache to the vice-president of the Government is ill-advised, not because of the dismissal ruling of the crime of coercion, but because of its argumentation, because it turns the politician's home and private life into a place of discussion of ideas and forgets the legal requirements for the legitimate exercise of the right of meeting and the correct weighting for the rights involved. Unfortunate beginning. However, against this order, which does not set a precedent for other judges and courts, it is binding - for the sake of art. 10.2 CEy should review the case law of the ECtHR to purpose of the protection of the inviolability of the home, the private life of public figures or the limits to the right of meeting and demonstration. And also that of the TC, which years ago stated that "neither freedom of thought nor the right of meeting and demonstration include the possibility of exercising moral violence of intimidating scope on third parties, because this is contrary to constitutionally protected goods, such as the dignity of the person and his right to moral integrity (arts. 10 and 15 of the Constitution) which must be respected not only by the public authorities, but also by citizens" (STC 2/1982).
The social emergency of the very serious problem of evictions, nor any other social problem, justifies per se any means of protest. The collectives of those affected cannot lose a single iota of legitimacy for their priority attention because some are erring in the means.