Like almost all agreements, the regeneration plan approved this Tuesday by the Council of Ministers was closed immediately. The coalition partners have made a lot of progress in recent weeks on the details of the 31 measures included in the text promoted by the government to “strengthen the right to freedom of expression and guarantee the right to truthful information”. But the negotiation failed in extremis on a specific point: the reform of the Penal Code on the forms related to freedom of expression and, more specifically, on contempt of the crown.
An old demand of the parliamentary left and a red line for those of Yolanda Díaz in their conversations with the socialists to agree on the plan, the teams of Sumar and the PSOE exchanged documents until Monday night with proposals to refine a formulation that proposes to “tackle a comprehensive reform of the articles of the Penal Code that may affect the right to freedom of expression and artistic creation, among other cases when it refers to state institutions, whether crimes against religious feelings or public ridicule or other cases.” On behalf of Sumar’s technical team, the secretary general of the Spanish Communist Party, Enrique Santiago, participated in this drafting.
For Sumar, the agreement reached leaves no doubt about the reform of the criminal offence specific to the head of state, even though during the negotiation with the PSOE, it was finally admitted that no express reference was made to it in the text. “What we agreed is that the articles that are the subject of this comprehensive reform are those that refer to the defamation of state institutions. For me, as Minister of Culture, it is a great satisfaction that this is part of the Action Plan for Democracy. Citizens would not have understood if it were not so,” said Ernest Urtasun at a press conference.
At his side, the Minister of Justice preferred to be more cautious about the evolution of this reform. “The opinion of the Minister of Justice will be important or not, but what will really be important is the bill that will be approved by the Council of Ministers when we do so and then we have sufficient parliamentary support to reform the Penal Code. “Spanish criminal legislation must adapt to the best criminal legislation of neighboring European countries as well as to the jurisprudence of the European Court of Human Rights,” replied Félix Bolaños after being specifically asked whether this reform affected the crime of insulting the crown.
The reform of the Penal Code to mitigate or repeal the most controversial crimes related to freedom of expression is a debate that periodically resurfaces. Especially in the groups that are to the left of the PSOE. Unidas Podemos Primero and Sumar, this legislature, have presented several parliamentary initiatives that have not been approved. Both parties have always defended its total repeal.
However, so far, the socialists have been in favor of reforming these measures to punish only behaviors that “clearly” pose a risk to public order or the provocation of some type of violent incident and without prison sentences. This is what is affirmed, for example, by the initiative proposed in 2021 by the Ministry of Justice, then led by Pilar Llop in the heat of the protests that followed the imprisonment of rapper Pablo Hasel after being convicted for 64 tweets and a song in which he criticized the king, the monarchy and censorship through very severe police actions.
Now, the Executive’s project proposes to give these crimes “a formulation comparable” to the countries of the European environment and “to pay attention to the jurisprudence of the European Court of Human Rights (ECHR) in matters of defamation and its legal framework.” The reality is that the doctrine of the Strasbourg Court points to a very restrictive interpretation of this type of crime.
The case law of the ECHR is that freedom of expression protects not only ideas considered harmless or indifferent, but above all protects those that shock, disturb or offend the State or a section of the population. The majority theses suggest that the only possibility of restricting this right in these cases concerns speeches that involve direct incitement to violence or that deepen the discrimination already suffered by vulnerable groups.
For example, Strasbourg has repeatedly called for “restraint in criminal proceedings” in the face of insults to national symbols and state institutions, referring precisely to the “dominant” position of the institutions. Recently, its magistrates annulled the sentence handed down by the Constitutional Court against a trade unionist who had shouted that “the fucking flag should be burned”. In this case, it stressed that the contradiction between freedom of expression and respect for symbols must be understood “in context”. In this case, in the midst of demonstrations against a strike over non-payment of wages.
Despite criticism from Europe, in recent years there has been an increase in judicial proceedings in Spain for criminal offences such as attacks on national symbols, insults to the Crown, glorification of terrorism or crimes against religious feelings. These are cases that often end with archives, acquittals or convictions that are later revoked, but which leave behind years of accusations for the accused, with the public and private repercussions that this implies.
Gag law and official secrets
The regeneration plan also responds to other recurring demands of the left and the majority of Pedro Sánchez’s parliamentary partners. After initially committing to repeal the Citizen Security Law, known as the “gag law”, and failing to reform it in the last legislature due to lack of consensus in Congress, the government is now proposing changes “on the qualification of the sanction by the use of images of the State security forces and bodies.
This declaration of intent is insufficient for the government’s usual partners in Congress, who have precisely described this point as “ridiculous.” These are the words that the Basque Nationalist Party has used to evaluate a reform proposal that only refers to one point, especially, according to sources from the group, when in the last legislature an agreement was about to be reached that dismantled more than 90% of this text that the government of Mariano Rajoy approved to restrict the right to demonstrate.
During the last legislature, we worked specifically on a text from the Jeltzale party to try to advance the repeal of the law. The negotiations were boosted by the clash between the PSOE on one side and EH Bildu and Esquerra Republicana (ERC) on the other on four specific points. Both groups find the announcements on this reform clearly insufficient.
“We do not see any relevant news in the announcements regarding the reform of the Gag law. This is insufficient. If this were the case, the most harmful articles, because of which the reform did not prosper in the last legislature, would remain intact, so it is necessary to continue pushing to eliminate them,” EH Bildu sources say.
ERC, which describes the package announced by the government as “pure disappointment”, believes that the reform of the “gag law” is based solely on “the application of a ruling by the Constitutional Court”. “On the other hand, fundamental aspects are left aside, such as a comprehensive reform of this law, which must address key aspects such as the ban on rubber bullets, the revision/elimination of sanctions for disrespect and disobedience, and the so-called hot returns, which we have demanded so many times,” they say, in line with the arguments that led them last year to vote against the reform that was being developed in Congress and that never saw the light of day.
The government’s proposal to reform the Official Secrets Law has left a similar taste in the mouth. A historic request from groups such as the PNV or the left of the PSOE, the government defends in its regeneration plan that the time has come to modify a law that dates back to 1968. “It is difficult to explain that Spain maintains a law on such groups. a sensitive issue that “dates back to 1968, we believe that our democracy deserves a law on official secrets that is contemporary, that embraces the best of the legislation of the countries that surround us,” said Minister Bolaños after the Council of Ministers.
The PNV, which describes the entire package as “inconcrete” and prefers to wait for more details to carry out a thorough assessment, warns that a reform like the one the government tried to implement in the last legislature would be insufficient. “If it is based on the 2022 project, this would imply that the deadlines for declassifying documents would even double those proposed in the Basque Group’s bill currently being examined in Congress,” nationalist sources say.
An idea shared by the Basque independentists. EH Bildu warns that while waiting to know more details, “in the event that it is a question of recovering the deadlines and the proposal that the Government made two years ago”, it will not have their support.
ERC also criticises the lack of precision in this law. “When we have the precise texts, we will pronounce ourselves measure by measure, but for now what we have seen is a declaration of intentions and very lukewarm. The PSOE is acting as the PSOE. Pure disappointment. We will see how everything unfolds in the parliamentary process, but we are watching it with concern”, they say, regretting that “the sewers of the State” are not purified with measures to punish those “responsible and executors” of illegal or illicit actions or to separate them from accusations that could lead to recidivism in the event of the statute of limitations for the offence.
Supporters of Basque independence are a little more optimistic when it comes to assessing the entire package of measures, with the exception of these last two. They believe that this project goes in the right direction because it includes some of the themes that they raised with the government during the meetings they held this summer: “confronting hoaxes and disinformation, increasing transparency and implementing support measures for media that are entirely in official languages other than Spanish.”
Much more skeptical has been shown in Podemos, which warns that it will not support any democratic regeneration package that does not include one of its main demands: a media law that puts an end to media concentration and democratizes the radio space, with a reduction of three thirds, with one space for public media, another for private media and another for collective media.
