The background

In Asociación de Abogados Cristianos v Spain [2023] ECHR no. 22604/18, the applicants complained about an exhibition by an artist called “A.A.” in 2015: Unearthed (Desenterrados), organised and subsidised by the Department for Culture of Pamplona City Council. One of the exhibits – Amen – showed a series of pictures of the artist posing naked next to the word “paedophilia” (pederastia) spelt out on the floor with consecrated Eucharistic hosts which, the artist explained in several tweets, he had taken from Masses that he had attended by putting them in his pocket after receiving them [4].

In November 2015, the applicant association lodged a criminal complaint against A.A. for an offence against freedom of conscience and religion under Articles 524 and 525 of the Spanish Criminal Code in relation to a breach of the right to freedom of religion under Article 16 § 1 of the Constitution. It relied on Article 24 of the Constitution, arguing that the State had to protect of the freedom of religion from any form of aggression in the face of the increasing attacks on churches. It did not waive its right to bring a civil action in the context of those criminal proceedings [7]. It also lodged a complaint against Pamplona’s councillor for culture, who had inaugurated the event and given her approval for the exhibition to be held in a public hall managed by the Pamplona City Council [8].

The investigating judge found that the facts did not amount to desecration for the purposes of Article 524 of the Criminal Code. Desecration had to be understood as treating sacred objects without respect, but the obligation imposed on Catholics about the (mis)use of hosts could not extend to non-believers. The artist had placed the consecrated hosts in his pocket discreetly, which was not to be considered a disrespectful, offensive or irreverent act. Though he had certainly used the hosts for profane purposes, it was not within a place of worship. The elements of the offence had not been met [10], nor did the artwork make a mockery of the dogmas, beliefs or rites of Christians or of the Catholic Church [11]. Appeals against that decision by the public prosecutor and the applicant association were dismissed [12-17].

The judgment

The ECtHR concluded that the complaints fell to be examined under Article 9 ECHR.

In the Court’s view, the applicant association’s complaints were about two closely connected but separate matters: that the local authorities financed, hosted and refused to suspend the exhibition of an artwork offending religious feelings and thereby interfered with the Article 9 rights of Christian believers, and that the judicial authorities did not prosecute and sanction the artist and the local councillor involved, thereby failing in their alleged Article 9 positive obligations to protect believers [24].

The Government argued that the complaint must be dismissed as inadmissible because the applicant association had not exhausted domestic remedies. under domestic law: it had not appealed to the contentious administrative tribunal. Further, by choosing to proceed by way of a criminal action without preserving the right to a civil action, it had not used all available remedies at its disposal to complain about the alleged violation [25].

Both complaints centred on the association’s claim that the authorities had not protected the religious feelings of its members and of Christian believers generally, and had breached the duty of religious neutrality [27]. Though it had gathered signatures and submitted a petition to the Pamplona City Council to cancel the exhibition, when the Council refused to do so, it did not challenge that decision by bringing contentious administrative proceedings as provided for in the Spanish legal system [28].

The Court reiterated that it was intended to be subsidiary to the national systems safeguarding human rights and that it was appropriate for national courts to have the first opportunity to determine questions of the compatibility of domestic law or of decisions by the public authorities with the Convention [29]. It noted that the association had not argued that bringing contentious administrative proceedings was a remedy that was inaccessible or ineffective [30]:

“It is therefore clear that had the applicant association instituted such proceedings against the City Council’s relevant decision, the administrative domestic courts would have had the opportunity to examine the substance of the complaint about a breach of the State religious neutrality and dealt with the question about the balance to be found between freedom of expression and the rights of believers in the circumstances of the case” [30].

The association had therefore failed to exhaust domestic remedies.

As to the second limb of the complaints, the association had lodged a criminal complaint against the artist and against the councillor who had inaugurated the exhibition and, as a result, the national courts had analysed the facts exclusively in terms of whether they constituted a criminal offence – and had held that they did not. That conclusion could not be described as arbitrary: furthermore:

“In so far as the applicant association considers that it was erroneous under domestic law, the Court reiterates that it is not a court of fourth instance and cannot deal with allegations about errors of fact and law; its task is to examine whether the facts complained of disclose a breach of a right protected by the Convention” [32: emphasis added].

In brief:

“The right to freedom from interference with the rights guaranteed by Article 9 does not necessarily and in all circumstances imply a right to bring any specific form of proceedings against those who, by authorship or publication, offend the sensitivities of an individual or of a group of individuals. Moreover, the fact that the authorities eventually found that no offence had been committed does not in itself amount to a failure to protect the applicants’ rights guaranteed under Article 9 of the Convention” [34].

The Court unanimously declared the application inadmissible.