The Commissioner for Human Rights of the Council of Europe, Dunja Mijatovic, has sent a letter to the Minister of Justice, Juan Carlos Campo, in which he celebrates the Government's plans to reform crimes related to freedom of expression and urges him to limit certain criminal offenses, such as glorification of terrorism and insults to the Crown, to avoid "unnecessary or disproportionate" punishment.

Although not expressly, Mijatovic has alluded to the case of rapper Pablo Hasel by drawing attention to the fact that "in recent years a growing number of criminal sentences, including deprivation of liberty, have been handed down against artists for controversial songs and other 'performance', and against activists on social networks for statements considered offensive, including statements conceived as humor, "based on the crimes of glorifying terrorism and insults to the Crown.

In the letter, dated March 11 but released this Monday, the commissioner has transferred to Campo her concern about certain articles of the Penal Code, arguing that "they have a negative impact, even a deterrent effect, on the exercise of freedom of expression. ".

"Therefore, I welcome the recent information that indicates that your Government intends to reform some aspects of the Penal Code, in particular the crimes of glorification of terrorism," he declared.

In his opinion, "the crime of exalting or justifying terrorism, as defined in article 578 of the Penal Code, appears to be problematic from the point of view of legal certainty due to its ambiguous and imprecise language," emphasizing that this "Lack of clarity" has generated divergent and even contradictory interpretations in Spanish courts, some against international standards.

"I have observed, in particular, that some decisions of the Spanish courts have failed to determine adequately whether the glorification of terrorism really entails the risk of real, concrete and imminent harm."

Mijatovic has argued that "antiterrorist legislation should only apply to content or activities that necessarily and directly imply the use or threat of violence with the intention of spreading fear and provoking terror."

"Any other type of content or activities, despite how controversial, shocking or disturbing they may be, must be addressed in the context of the obligations and responsibilities that the exercise of freedom of expression entails," he defended.

On the contrary, it has warned that the use of concepts that are too vague in the description of the criminal offense, such as expressions that "do not contain elements of the apology of terrorism but incite other forms of violence or that are simply controversial, shocking or politically incorrect "may lead to" unnecessary and disproportionate restrictions "on freedom of expression.

Greater tolerance for political criticism

Secondly, it has focused its attention on the crimes of insults to the Crown contained in articles 490 and 491 of the Penal Code to point out that "a sentence of imprisonment for a crime committed as part of the political debate should be compatible with the freedom of expression only in exceptional circumstances, when the speech contains calls for the use of violence or constitutes hate speech. "

Mijatovic has argued that "the possibilities of imposing restrictions on freedom of expression in the context of political debate are very limited and must be proportionate and necessary in a democratic society," underlining that "the limits of admissible criticism of politicians, politicians, representatives of the authorities and other public figures are broader than those of the average citizen "and, consequently, must have a" greater degree of tolerance ".

Specifically, he referred to the case of Jaume Roura Capellera and Enric Stern Taulats, convicted of burning a photo of the Kings after a demonstration in Girona.

The European Court of Human Rights (ECHR) corrected this ruling by estimating that "criticism of authorities and public figures, however provocative and radical, cannot be considered hate speech or incitement to violence."

"I hope that the implementation of this sentence will be used as a basis to fully align the Penal Code with the jurisprudence of the Court," the commissioner added.

Offenses to religious sentiments

Mijatovic has also expressed concern about the "excessively broad" interpretation that Spanish courts sometimes give to the notion of hate speech, recommending restricting it to cases prohibited by International Law, that is, "expressions of hate based on xenophobia, anti-Semitism and other forms of hatred based on intolerance that constitute incitement to discrimination, hostility or violence. "

In addition, he has invited Campo to study a possible decriminalization of defamation and offenses to religious sentiments.

The sanction of the latter, he warned, "may result in undue limitations on freedom of expression and hinder a plural debate."

According to the ECHR, he stressed, "a religious group must tolerate the denial by others of their religious beliefs and even the propagation of doctrines hostile to their faith as long as they do not incite hatred or religious intolerance."

The commissioner has trusted that a criminal reform in the indicated terms will strengthen freedom of expression and facilitate the work of the Spanish courts.

Likewise, "it will demonstrate the commitment of your Government to the full protection of the right to freedom of expression," he told Campo, while offering to continue with "a constructive dialogue" on these matters.

A reform in progress

Campo has replied, in another letter of March 18, that freedom of expression "has full recognition in the Spanish legal system", although he has emphasized that both the ECHR and the Constitutional Court have established that it has limits and that the TC "has called attention to the need to carry out a restrictive interpretation of certain crimes so as not to endanger freedom of expression."

The minister has recognized that, despite these interpretive efforts, "the regulation of certain crimes related to freedom of expression continues to pose problems, especially due to the imprecision with which criminal conduct is defined," explaining that that is why the Government announced a reform of crimes that "more clearly may conflict with freedom of expression", and highlighting the "harmony" with the Council of Europe in this regard.

Campo has highlighted that he understands the crimes indicated by Mijatovic - hatred, glorification of terrorism and insults to State institutions, among others - and has stated that, although the criminal reform is still under study, the Government's intention is to "delimit more clearly what is the conduct sanctioned in these crimes" and "adjust the penalties to the seriousness of the conduct", to "guarantee greater legal certainty" and avoid the deterrent effect.

"Ultimately, there is no denying the need for there to be crimes that prohibit and punish the manifestation of expressions that injure or endanger individual or collective legal rights. The point is to establish a balance between the right to freedom of expression and the protection of these legal assets, based on the conviction that the mere expression of opinions, no matter how hateful or despicable they may be, cannot be a crime, "summarized Campo.

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  • constitutional Court

  • Juan Carlos Campo

  • European Court of Human Rights

  • Catalonia

  • Girona

  • Madrid

  • Justice

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