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The Supreme Court (TS) has overturned the disciplinary sanction imposed by the Army on a former Land corporal who publicly signed a manifesto against Francoism in the Armed Forces in 2018, since it considers that he was protected by freedom of expression and that he did not infringe the duty of political neutrality.
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In a ruling this Wednesday, the Military Chamber upholds the appeal of the person who had been fined as the author of two serious offenses after supporting the ‘Manifesto of collective response against Francoism in the Armed Forces’, as well as for the statements he offered in an interview, in which he explained his support for said text in response to a previous one called ‘Declaration of respect and reparation to General Don Francisco Franco Bahamonde. Soldier of Spain’, promoted by retired soldiers and in the reserve.
The sanction, an economic fine of 12 and 10 days, was agreed by the chief general of the Logistics Force and was confirmed both by the Chief of the Army General Staff and by the Central Military Court, which considered that he had committed the serious offenses of issuing in public “false” expressions or expressions contrary to the discipline of the Armed Forces that violated their duty of political neutrality.
The Supreme Court has now revoked that ruling on the understanding that it is appropriate to fully estimate the appeal filed by the ex-cabo because, at no time, is it appreciated that the appellant “has incurred a violation of the respect due to his superiors, or an attack against the good operation and effectiveness of the service.
Nor do the TS magistrates appreciate an “imperative social need” to limit their constitutional right to freedom of expression, since their demonstrations are not a “real threat to the discipline and internal cohesion of the Armed Forces.”
Saying “Health and the Republic” does not violate political neutrality
The former corporal “did not take sides in a political debate but rather, on the contrary, signed a statement in which, as a reaction and response to the aforementioned manifesto, signed by retired soldiers and in the reserve, it was recalled that the military ‘have no right someone to put pressure on the democratic state as a collective’”, they point out.
In addition, the Military Chamber ensures that the former corporal of the Army did not speak out against the Armed Forces as an institution, “but expressly limits his comments regarding the military who have signed the manifesto of reparation to General Franco, and in response to said manifesto”.
Regarding the expression “Health and republic” with which he concluded his personal comment on the manifesto to which he adhered, the Supreme indicates that this is an expression of farewell or greeting that, by itself, cannot be considered “contrary to political neutrality” .
Nor do they observe “any intent”, because in his explanations to a media outlet “he made a series of very personal value judgments and commented, with greater or lesser success in expression, on some of his experiences in the Armed Forces, not appreciating that he had any intention to falsify any fact or data”.
The sentence has the dissenting private vote of two of the five magistrates who sign it, José Alberto Fernández and Ricardo Cuesta, in favor of maintaining the sanction to the former, who is blamed for some “false assertions” that are “clearly away from reality” and they are of a “clearly denigrating” nature, in his opinion, with the commanders and members of the Army, in addition to having a “known ideological burden” contrary to the political form of the State, that is, against the parliamentary monarchy.
