He Action Plan for Democracy presented this Tuesday by the Government includes a series of Amendments to the Penal Code This will satisfy a historic demand from parties to the left of the PSOE to eliminate the so-called crimes of expression that, in recent years, have led to politicians, rappers and social activists being imprisoned.
Although today the socialist part of the government and the leaders of Sumar differ on the scope that this measure could have, the truth is that the preliminary draft approved by the Council of Ministers envisages “addressing a comprehensive reform of the articles of the Code.” “Criminal law that can affect the right to freedom of expression and artistic creation” in order to give them a formulation “compatible with the countries that surround us and in line with the jurisprudence of the European Court of Human Rights.”
Over the past decade, the Strasbourg Court has issued several judgments in which, although it has not completely annulled the most controversial crimes that still exist in the Spanish Penal Code, it has modulated its application and, in practice, has eliminated the prosecution of certain crimes from the daily life of the courts. behaviors.
The three most contested crimes are offense to religious feelingswhich punishes the disruption of acts related to faith or the desecration of sacred places with fines and sentences of up to six years in prison; that of insults to the crown, characterized by fines for those who slander the king, queen and princess of Asturias; and that directed against the high institutions of the State, which includes economic sanctions for those who burn official flags.
Burning flags or pictures of kings is not a crime
The case law of the European Court of Human Rights has established that Burning photographs of kings is not a crime based on a judgment issued in 2018 in which he responded to the request of two Catalan independence protesters, Jaume Roura and Enric Stern, who had burned an image of Juan Carlos I and Sofia of Greece that they had previously placed upside down during a demonstration that took place in Girona in 2007.
Eleven years after these events, European justice has ruled in favor and condemned Spain for violating its fundamental right to freedom of expression after the decision of the National Court that imposed a 15-month prison sentence that was replaced by the payment of a fine of 2,700 euros. The Strasbourg Court amended the letter addressed to the Spanish justice system and the Constitutional Court and stated that This act was a “political criticism” of the monarchical institution and the Kingdom of Spain, which could not merit any criminal sanction. “An act of this type must be interpreted as a symbolic expression of discontent and protest,” said the European magistrates, who ordered compensation for the two convicts in the amount of 7,200 euros.
Another sentence that modulated the crime of insulting the Crown This is the one who reached an agreement in 2011 with the historic leader of Batasuna Arnaldo Otegi, now in the EH Bildu group. Strasbourg considered that Spain had violated his right to freedom of expression after the Supreme Court corrected the High Court of Justice of the Basque Country, which had acquitted him, and sentenced the nationalist leader to one year in prison for having declared that King Juan Carlos was “the supreme leader of the Spanish army, that is, the person responsible for the torturers.
The sentence handed down by the Supreme Court and confirmed by the Constitutional Court was annulled by the European Court of Human Rightswho considers that these remarks do not constitute “a gratuitous personal attack on the person of the King” nor do they call into question “his private life or his personal honour”, but rather are part of a political debate following the torture which, according to him, the kings had suffered the editor of the newspaper Egunkaria, detained on the orders of the National Court.
The European Curia also corrected the Spanish justice in the case of a protester from the Galician Inter-Union Confederation (CIG) who was sentenced to pay a fine of 1,260 euros for having uttered, during a demonstration that took place at the Military Arsenal of Ferrol (in A Coruña), the expressions “this is the silence of the fucking flag” and “we must set fire to the fucking flag”. In 2023, the community magistrates agreed that these statements were protected by the right to freedom of expression and political criticism.
Rappers’ Sentences Approved
However, The European Court of Justice has confirmed the convictions that Spain imposed on rappers Pablo Hasel And Valtonycwho were found guilty of insulting the Crown and glorifying terrorism for various song lyrics and social media posts in which they attacked the monarchy, insulted state security forces and agencies, or justified terrorist violence by ETA or Raisin.
In 2019, the European Court rejected the fundamental rights violation lawsuit brought by Mallorcan rapper Josep Miquel Arenas, Valtonyc, who was sentenced to three and a half years in prison for incite in their raps to “occupy” the Marivent Palace or saying that the president of the Círculo Balear “had to die”. In this case, the magistrates considered that he had not exhausted all the avenues of appeal in Spain (supreme and constitutional), so that his case could not even be studied.
In the case of Pablo Rivadulla Duró, known artistically as Pablo Hásel, the ECHR approved in 2023 the nine-month prison sentence imposed on him by the Supreme Court for apologizing for terrorism and insulting the Crown, following several messages on social networks. This sentence was added to an additional two and a half years in prison for obstructing justice and threatening a witness.
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