The Council of Europe asks Spain for legal changes on insults to the Monarchy and glorification of terrorism

The harsh Spanish sentences in cases related to freedom of expression, such as the recent prison sentence imposed on rapper Pablo Hasél for exalting terrorism or insulting the monarchy, are once again in the sights of Strasbourg.

This time, it is the Commissioner for Human Rights of the Council of Europe, Dunja Mijatovic, who expresses her concern about the “deterrent effect” in terms of freedom of expression that these types of sentences have, which she clearly considers excessive, as well as goes a step further and asks the Government of Pedro Sánchez to also consider decriminalizing defamation and religious insults.

Mijatovic has been informed of the intention of the Spanish Government, which wants to modify the Penal Code so that crimes related to freedom of expression, such as Hasél's, do not entail a prison sentence.

Even so, this Monday he published the letter he sent to the Spanish Minister of Justice, Juan Carlos Campo, on March 11, where he warned of the "negative impact, including a deterrent effect" that various articles of the Spanish Penal Code have on freedom of expression, "a right of crucial importance for a free and plural public debate," he recalls.

According to Mijatovic, the “ambiguous and imprecise” formulation of what constitutes praise or justification of terrorism in article 578 of the Penal Code is “problematic”, since it can lead to “unnecessary or disproportionate restrictions” on freedom of expression.

The person in charge of human rights of the Council of Europe emphasizes in this sense that "some decisions" of the Spanish courts - which it does not specify, although it evokes cases against "artists for controversial letters and other actions, as well as against social network activists" - " they have not been able to determine whether the glorification of terrorism really carried a risk of a real, concrete and imminent danger ”and that even on some occasions the judges have interpreted the notion of“ intention ”of the accused in an“ abstract way ”.

"Antiterrorist legislation should only apply to content or activities that necessarily and directly imply the use or threat of violence with the intention of provoking fear and terror," Mijatovic points out in this regard.

"Any other type of content or activities, no matter how non-consensual, shocking or disturbing they may be," are covered by freedom of expression, he adds.

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The commissioner also returns to the crime of insults to the Crown that almost just three years ago caused a sentence of the European Court of Human Rights (ECHR), which condemned Spain for imposing a prison sentence on two protesters who burned a photo of the Reyes during a protest in Girona in 2007. “A sentence of deprivation of liberty for an offense committed as part of the political debate would be compatible with freedom of expression only in exceptional circumstances, when the speech in question calls for the use of violence or constitutes a hate speech ”, Mijatovic underlines in this regard, while recalling that Spain has been condemned several times by Strasbourg in this matter for violations of article 10 on freedom of expression of the European Convention on Human Rights.

In his response to Mijatovic's letter, Minister Campo recalled, on March 18 in another letter, that the Government announced on February 8 its intention to “review and, when appropriate, reform the way of dealing with offenses that, in our opinion, they more clash with freedom of expression, specifically the glorification of terrorism, hate crimes (article 510) and defamation of State institutions, among others ”.

The objective of the reform is "to define more clearly the type of sanctioned behavior" and "to match the penalties to the seriousness of the conduct", he states in the letter, published by the Council of Europe together with that of the commissioner.

The head of human rights of the Council of Europe encourages Madrid to go further in this regard and "also consider the decriminalization of offenses to religious sentiments" provided for in article 525 of the Spanish Penal Code, since, she points out, "they may result in excessive limitations on freedom of expression and hinder a plural debate ”.

Mijatovic recalls that the ECHR has already established that "a religious group must tolerate the denial of their religious beliefs by others and even the propagation of other doctrines hostile to their faith, as long as this does not incite hatred or religious intolerance."

Finally, Mijatovic also urges Spain to take advantage of the promised reforms to “decriminalize defamation”, since it can also have a “deterrent effect on the exercise of freedom of expression”. As he recalls, the ECHR considers that not only the imposition of criminal sanctions for defamation, but "the mere fact that such sanctions can be applied", has in itself a "dissuasive effect" on freedom of expression. The commissioner concludes her letter stating that some "broad" reforms in this sense of Spanish legislation will not only "reinforce" the safeguards of freedom of expression and "facilitate" the work of the courts, but also "would demonstrate the will of the Government to fully protect the right to freedom of expression ”.