Spain Faces Restrictions On Expression

2021-02-14   |   by CusiGO

An amendment to the criminal code, announced by the Spanish government this week, proposes to amend some crimes related to freedom of speech, sparking a debate Spain has long avoided: in a country where puppet actors are imprisoned for puppetry, there is excessive punitive enthusiasm, and an actor is punished for death Damn “God” or, even, denounce a union member saying, “the damn flag’s on fire”? Are there too many restrictions on a basic right? Or did some judges explain that it was very strict? What is Spain’s position towards the rest of Europe?

More than 200 artists have signed a declaration against the imprisonment of rapper Pablo rivadulla Duro, known as Pablo hasel, who has been sentenced to four terms, two of which have been convicted. The sentence, which sent him to prison, sentenced him to a 27 month fine for insulting the king and state institutions and nine months in prison for praising members of Grabo and ETA on 64 tweets and a YouTube video. The government announced its intention to review these crimes, as well as those of hatred and anti religious sentiment, in order to limit their interpretation to “acts that clearly constitute a risk to public order or incite certain acts of violence”. You have to be careful not to go to jail.

The European Court of human rights (ECHR) has suffered several setbacks as a result of the use of this provision, with a maximum penalty of two years’ imprisonment. Ten years ago, Strasbourg sentenced Spain to one year’s imprisonment for characterizing then King Juan Carlos I as “the leader of the torturers”; in 2018, Spain sentenced two protestors who burned photos of the monarch to a fine and threatened imprisonment. “Freedom of expression extends to offensive, conflicting or harassing information and ideas,” stressed the European Commission on human rights.

Joan BARATA, a jurist at pdli and a researcher at Stanford University, details the trend in Europe to put freedom of speech first. “The problem is that these crimes can be used to curb political criticism,” she concludes. “It doesn’t make sense. Special protection agencies. Because it’s the opposite. Because of their character, they have to accept a greater degree of criticism and attack. ”

For example, France abolished the special criminal offence against the head of state in 2013. The head of state was fined for denouncing an activist who produced a banner against President Nicolas Sarkozy that said, “get out of here, you poor bastard! “An expression used by the politician himself a few months ago to a person who refused to shake hands with him. French law already provides for insults or defamation of the head of state, but the punishment is the same as for crimes committed against public officials, officials of the authorities or members of the jury.

Another problem in Spain is practice. Apostilla Jacobo dopico, a professor of criminal law at the University of Carlos III in Madrid, is one of the supporters of libex, an Internet platform specializing in crimes affecting freedom of speech. “Our types of crimes are not very different from those in other countries. In Germany, they have the same old discipline of anger as we do. But the difference is that they don’t have a real scope, “the professor stressed. In other words, they are interpreted according to the line of defense of fundamental rights established by Strasbourg. “This is the commandment of an old concept of the state.” It is only supposed to be “in the case that it may produce violent scenes”.

According to a 2017 report of the organization for security and cooperation in Europe (OSCE), 13 EU countries envisage some form of crime against religious feelings, and 10 of them even envisage imprisonment. Spain, one of them, only fined. But as Jos é Antonio Ramos, a law professor at the University of Cologne, explains, the difference between States is that each state has a “demand” for punishment.

The most severe are Greece and Finland, which punish blasphemy “strictly.”. Ireland also kept it in the constitution until 2018, after police investigated a comedian for calling God “wayward” or “mean,” and after no one has been judicially charged since 1855. In other countries, Ramos goes on to say that in order to be able to charge someone with a crime, very strict standards have been set: in Germany and Portugal, public order must be “disrupted”; in Austria, public anger must be “aroused.”. In France, a secular country, there is not even such a crime. It’s not in the UK, it’s outside the EU.

In Spain, Willy Toledo’s crime of offending religious feelings on the bench requires “serious insults” to achieve the purpose of offending, the professor explained. In other words, the defendant’s criminal intent must be proved. According to university researchers, in practice, this means that in more than 40 years of democracy, only two people have been convicted of this crime: the first person, the, According to the agreement, one young man was sued by the Ja é n court for posting a montage of Christ’s face on instagram; another young man was sued by the Malaga court for bringing a lawsuit against a woman marching with a plastic vagina in the Malaga Court (the decision was appealed).

On this point, Professor Jacob dopico pointed out a problem in Spain: it is easy for many judges to accept complaints that are ultimately fruitless. This factor enables various groups, such as the extreme Catholic Christian Bar Association, to take public action and take legal measures to produce a “intimidating effect”. I mean, there’s going to be self censorship in the possibility of seeing yourself on the bench.

Researcher Joan balata detailed that criminalizing the so-called hate speech crime is an “obligation” under the International Covenant on political rights, which stipulates that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence is prohibited.”. “There are [such] crimes in every country around us,” the jurist stressed, noting that Spain is concerned about the “broad” and “ambiguous” wording, which, for example, allows people to persecute others simply for expressing hatred without “inciting.”.

In this case, a lawsuit was brought against a member of the ERC, demanding that the guard and the police be driven out of the hotel after the police charge of the illegal referendum on 1 October. The high court of Catalonia dismissed the suit, concluding that “any hostile speech” against a group is not a hate crime in itself. He added that even though the wording could be “manifestly offensive” and “subversive of social peace and public order.”. He explained that it needed to be targeted at “vulnerable groups.”.

In this regard, dopeko recalled that Russia was convicted by the European Commission of human rights “for the crime of protecting minorities against officials of the authorities”. “The United States is one of the few Western countries where hate speech crimes go unpunished,” says apostilla BARATA, who details how they understand the constitution to protect freedom of speech in this regard. In other countries, such as Germany, they will be sentenced to imprisonment – for example, their criminal law convictions, “Those who publicly or at meetings deny, approve or minimize the acts committed during the Nazi regime…” In France, they are also persecuted: in fact, the prosecutor’s office is currently investigating the “open provocation of racial hatred” by the far right group, which has launched an anti immigration campaign.

“In general, the scope of such crimes has expanded in Western Europe in recent years,” Jean baratta explained. In 2014, France established a crime to defend terrorism, which can be sentenced to five years’ imprisonment, and is applicable to netizens who send messages to victims about supporting terrorism and insulting acts. According to a report by the European Commission, the UK put forward a rough rule in 2006.

Jurists believe that the key lies in how to limit in practice. “In many countries in our environment, in order to commit the crime of instigation, two conditions must be met: the accused intends to incite terrorism and he has the ability to commit it,” Jean baratta said. Who dares to “dilute” this concept in Spanish law to avoid cases like Pablo hasel: “how can a person be jailed for instigating a terrorist crime against a gang that does not even exist?” “,

In Spain, the crime developed a long time ago as a result of ETA terrorism, and the court has restricted its application in recent years. After the invasion of social media, the crime has proliferated. In February 2020, the constitution repealed the Supreme Court’s one-year prison sentence on singer Cesar strawberry, published by a series of black humor tweets. Although he was acquitted, he complained that the whole criminal procedure was a “social disgrace”: “if you want to endure this kind of continuous lynching within five years, you have to have packaging.”

The government’s proposal came after the announcement of the 200 artists’ Manifesto on Monday night, when Moncloa unexpectedly reported in a two paragraph memorandum that the Ministry of justice was unable to provide more details, It attempts to reform the “most controversial crimes” concerning Freedom of expression, including: “incitement to terrorism and humiliation of victims (article 578 of the criminal code), hate crime (510),”, Insults to the royal family and other institutions (490 and below) and insults to religious feelings (522 and below). ”

It was only hours before this announcement that we were able to register its “freedom of speech protection act” in Congress on Tuesday, where it went further than the socialist camp of the executive branch. The organization led by Pablo Iglesias proposed the direct abolition of three such crimes: insulting the royal family and state institutions, violating religious feelings and inciting terrorism; and insulting “Spain, autonomous region, symbol and emblem” (art. 543). As far as PSOE is concerned, it doesn’t specify how it wants to modify each one.

The legal debate on this issue is very extensive, and each crime faces different challenges. ETA victims association does not support the abolition of the reward system, while continuing to “publicly recognize” escaped terrorists, although in practice, The national hearing ruled out the possibility that these receptions could be punished: “it makes no sense for participants to welcome the release of those around them just because of kinship, friendship or neighborhoods.”

The criminal policy research group, composed of progressive judges, prosecutors and criminal law professors, proposed a comprehensive reform of these crimes at the end of 2019. The goal of this group is to eliminate the humiliation of the victims and to limit it to “direct incitement to specific crimes with imminent danger”. They also proposed the direct abolition of crimes against religious feelings and all special insults and defamation of the royal family and institutions so that “the members of these institutions are subject to the general system”. With regard to hatred, he argued that such statements should be punished only when “public and direct incitement to crime or defamation” and when directed against members of groups discriminated against.