The Importance of Separate Opinions in the Dialogue between the European Court of Human Rights and the Spanish Constitutional Court: Reflections on Freedom of Expression

Abstract This Article analyzes the relevance of dissenting opinions issued on the judgments of constitutional courts, particularly the Spanish Constitutional Court, for dialogue between courts—especially the ECtHR—in the field of rights. The interpretative capacity of individual opinions is an important question in the case of the Spanish order, given that Article 10.2 of the Spanish Constitution requires that the rights guaranteed in the Constitution be interpreted in accordance with the treaties on rights signed by Spain. In this sense, the ECHR plays an essential role as the main instrument of interpretative reference in the domestic sphere. Therefore, we have sought to study the capacity of individual opinions to promote new developments in the field of rights based on the bridge generated with the doctrine of the ECtHR and to what extent this can have repercussions on the positions initially defended by the dissenting minority of the Spanish Constitutional Court becoming the majority position defended by the Court. This study is channeled through the freedom of expression in Fragoso Dacosta case because of its relevance in the multilevel context, analyzing the ruling 190/2020 of the Spanish Constitutional Court, December 15, and the ruling of the ECtHR in Fragoso Dacosta v. Spain , June 8, 2023.