Protesters burn a Spanish flag at the security perimeter around the Parlament in 2017.Julián Rojas
The Constitutional Court is divided into several judgments relating to fundamental rights related to freedom of expression, ideology and religious worship, as well as the right to equality, which the magistrates do not interpret in the same way.
This is revealed by the texts of three rulings released this Friday, in which protection is denied to a union member for crimes of outrage to the flag, and to a protester who broke into a church during mass shouting slogans in favor of free abortion and free.
The Constitutional Court has, however, granted protection to the San Vicente Mártir Catholic University of Valencia as it was deemed unconstitutional an autonomous regulation that allowed the denial of scholarships to students of this center who could pursue the same studies in public universities.
For the majority of the court, this violated the right to equality, while the progressive minority argued that differential treatment was constitutional, due to the different nature of the centers.
The respective judgments have motivated a chain of individual votes against, showing that two different perspectives coexist in the Constitutional Court, difficult - and in these cases impossible - conciliation on the guarantee of fundamental rights in terms that are in step with the evolution of social reality .
The first ruling, the most disputed, refers to the Galician trade unionist Pablo Fragoso, for having pronounced in a demonstration in front of a Ferrol barracks during the raising of the banner the phrases "here you have the silence of the fucking flag" and "you have to set fire to the fucking flag ”, which the majority of the court considered a crime of outrage to national symbols.
This majority has been, however, very meager in this case, since six magistrates supported the sentence, while five voted against it.
The first speaker was the conservative magistrate Andrés Ollero, who resigned to draft the sentence because he was in favor of granting the amparo.
Ollero's text is very critical.
He complains that he is considered a conservative, when he agreed to annul the sentence in order to protect freedom of expression.
All this in coherence with the jurisprudence of the European Court of Human Rights, which has already annulled another conviction issued by the Spanish justice against the authors of the burning of the King's photos.
Ollero says he identifies at this point with his "countryman" Antonio Machado, via Juan de Mairena, when he alluded to "those good conservatives who are always stoned by their co-religionists, and without whom all revolutions would pass without a trace."
The vice president of the Constitutional Court, Encarnación Roca, and the judges Cándido Conde-Pumpido, Juan Antonio Xiol and María Luisa Balaguer also cast votes against, arguing the protection of freedom of expression, in a union protest against non-payment of wages.
They consider that that was the purpose of the unionist, and not to insult the flag.
That is why - says Roca - Pablo Fragoso took advantage of the "moment" of raising the flag, because it was when the protesters "could make their demands reach the military present there."
Ollero, in turn, says that "it affects him more" than the words of the unionist "the situation of the workers (...) who are denied wages" who "had cleaned a military installation daily."
Conde-Pumpido highlights: “We should never forget that the constitutional flag is the flag of a Democracy.
And it also protects those who do not appreciate it. "
It also highlights that "the unsavory words" of the unionist did not incite hatred, but rather demand.
And Encarnación Roca cites that in the demonstration "the members of the Armed Forces were reproached for their passivity in the face of non-payment of wages."
Xiol and Balaguer question that the "feeling of adherence to that symbol" deserves "greater consideration than the guarantee of freedom of expression."
In the sentence that condemns the irruption in the church with slogans in favor of abortion, the majority saw an attack on the right to religious freedom.
Conde-Pumpido reasons that this is a “restrictive vision” of ideological and freedom of expression, because the fact was reduced to “a protest conduct that did not incite religious hatred, that did not use any offensive or hurtful expression, and that had as an objective to critically visualize the position of the hierarchy of the Catholic confession ”.
against voluntary termination of pregnancy.
Xiol and Balaguer quote the US judge Thurgood Marshall when he said that "what is rude for some is poetry for others."