The Military Chamber of the Supreme Court has annulled the expulsion of Corporal Marcos Antonio Santos Soto from the Armed Forces, considering that his complaints about corruption in the Army are protected by the right to freedom of expression. According to the sentence handed down by the Central Military Court, the corporal echoed in his profile of the social network Facebook of "serious disqualifications against people of different legal political parties", of manifestations of "explicit support to criminals convicted of assaulting civil guards"; of "republican flags with derogatory statements about the monarchical institution and who embodies it" or of "apology and positions contrary to the unity of Spain".
He also attributed to him the publication on a website in October 2017 of an article entitled Corruption by M.A.S.S. [acronym of his name and surname], in which he denounced that the Army is "the most opaque institution [...] with the Monarchy, heir to a regime imposed by the dictator of this country." And he illustrated these statements by relating that, in the military detachment deployed in Kosovo in 2002, the communications center "sold favors and telephone calls to Spain" in "exchange for drinks and food"; that the money saved on manoeuvring rations went "surely to the provisioning of liquor to the command post"; or that the guards who suffered a traffic accident in Chinchilla were drunk because they were drivers for their bosses who had gone out for dinner. The article concluded with a "Health and People's Republic" and the author identified himself as "a member of the military democratic collective Anemor."
The corporal was punished with the "resolution of his commitment", that is, the expulsion from the Army, as the author of two very serious disciplinary offenses. The first, for the "serious or repeated" performance of "disrespectful acts or the public broadcast of expressions or manifestations contrary to the constitutional order, the Crown and the other institutions and organs of the State". The second, for allegedly failing to comply with the duty of "political or trade union neutrality or limitations on the exercise of freedom of expression" of the military. The expulsion was decreed in November 2019 by the then head of the Army, General Francisco Javier Varela, was confirmed in March 2020 by the Minister of Defense, Margarita Robles, and ratified in March 2022 by the Central Military Court, which dismissed the military's appeal.
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The Supreme Court annuls the sanction to a soldier who signed an anti-Franco manifesto to be protected by freedom of expression
However, in a ruling issued on May 30, the Military Chamber of the Supreme Court exonerates the corporal for his publications on Facebook, "given the vagueness and lack of specificity" of them, since the account of proven facts of the sentence "lacks the necessary precision to serve as support for the imposition of a sanction." It emphasizes that the court does not specify whether "these alleged disrespectful comments" are made by the military himself or appear on some of the linked pages, as seems to be deduced, and this is limited to including the link to them for informational purposes.
Regarding the article on corruption, the Supreme Court recalls that the military have the right to freedom of expression and that this can only be limited when there is "a real threat to the discipline and internal cohesion of the Armed Forces," according to the European Court of Human Rights. "The characteristics of deep hierarchy, discipline and unity, which are indispensable to the military organization in order to fulfill its purposes, justify limitations on freedom of expression that exclude conduct that was clearly indicative of an excessive exercise of criticism of certain aspects of the actions of the Armed Forces or the Armed Institute. But they do not exclude any criticism, or considered defense of the rights and interests of the members of the Armed Forces or the Civil Guard, as long as it is expressed with moderation and respect, "he stresses.
Regarding the article on corruption, he emphasizes that it only states that the Army is, along with the Monarchy, "the most opaque institution", and illustrates it with two cases, in Kosovo and in Chinchilla, in which "it accuses its commanders, without identifying them, of abusive or inappropriate personal conduct". "The absolute lack of entity and relevance of the criticisms expressed in this article determines that it is impossible to subsume them in either of the two very serious offenses" that motivated his expulsion from the Armed Forces, the court understands. The Chamber concludes that these statements "are protected by the right to freedom of expression," without "in any way, constituting a real threat to the discipline and internal cohesion of the Armed Forces, the only case, as we have seen, in which the right of expression of the military can be limited."
Consequently, it annuls the sanctions and orders that they be deleted from the corporal's service record. The judgment, of which Judge Clara Martínez de Careaga has been rapporteur, has had the dissenting vote of two of the five members of the Chamber.
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