BY: BEATRIZ BLASCO-AGUASCA
On April 19, 2018 the National Police sent six vans to detain the activist Roberto Mesa for insults to the Crown just six weeks after he posted on his Facebook wall: “[throw] the Bourbons to the sharks.” The days before the 2018 King’s Cup final, held on April 21, the Minister of Interior Juan Ignacio Zoido branded the potential booing against the Spanish national anthem as “violence” that needed to be rooted out. The question that the student activist Pedro Cordero posed to the Popular Party’s city councilors during a plenary session in Cáceres city hall on December 2015, “Can you sleep at night?” cost him a fine of 601€ based on article 36.1 of the Citizen Security Law (LOPSC). These are just three recent cases in Spain in the last few years amongst a long list of allegations against people expressing dissent on social media or through songs, puppet shows, art exhibit, etc. Within such a scenario, some Spaniards are left wondering whether one of their fundamental rights –freedom of expression—is still fully protected and guaranteed in their country.
Some in Spain argue that the starting point of such a repressive drift goes back to September 2007. While the King was on an official visit to Girona, northeastern Spain, J. Roura and E. Stern burned a large photograph of the royal couple during a public demonstration. They were sentenced to pay a fine of 2700€ each for insults to the Crown; else they would have had to serve a 15-month long sentence. In response to their appeal on the grounds of unconstitutionality, the Spanish Constitutional Court concluded that their offense fell outside the scope of freedom of expression and constituted incitement of hatred and violence against the Monarchy and the King. In March 2018, the European Court of Human Rights held, unanimously, that there had been a “violation of Article 10 (freedom of expression) of the European Convention of Human Rights,” for “the act allegedly committed (…) had been part of a political, rather than personal, critique of the institution of Monarchy in general, and in particular of the Kingdom of Spain as a nation.” Despite the European Court’s decision, the main parties in Spain affirmed that they would not modify the offences of injuries to the Crown.
According to Freedom House’s report, Freedom in the World 2017, “civil liberties are generally respected” in Spain, although “restrictive legislation adopted in recent years poses a threat to otherwise robust freedoms of expression and assembly.” This statement refers to the LOPSC –also nicknamed “the Gag Law” by its critics– and the modified Criminal Code, which entered into force on July 1, 2015. Under the premise of improving the legal framework to protect citizens and to include new antisocial behaviors, the LOPSC’s preamble addresses a common goal: “to protect people and goods and to maintain public order.” However, the LOPSC has been very controversial since the Spanish government started its legislative initiative in November 2013 until now. Not only do some of its articles pose a threat to fundamentals rights, including freedom of expression, freedom of peaceful assembly, right to protest, and right to a fair trial, but some of them also contain an excessive generalization or lack of conciseness to define some concepts and punishable actions, which could lead to a discretionary application of the law or to arbitrary and non-proportional rulings. Such actions would directly contradict the principle of legal security.
Among other restrictions, the LOPSC forbids unauthorized gatherings around the Cortes Generales, regional legislative assemblies, and other important buildings (Art. 36.2); the obstruction of any public authority, public employee, or official corporation enforcing compliance with agreements or administrative or judicial resolutions (Art. 36.4); the video footage of any police officer in the exercise of his or her duties during a protest (Art. 36.26); and the lack of respect and consideration against Security Forces and Corps in the exercise of their duties (Art. 37.4). The new infractions included in the LOPSC are intended to dissuade people from protesting, even peacefully. They further aim to take demonstrations against the government and politicians in general out of context in order to stop actions of collective organized resistance against public authorities which defend banks’ interests. The European Court has aptly stated in different cases that freedom of expression is also applicable to information or ideas “that offend, shock or disturb the State or any sector of the population,” a legal principle that is extremely applicable in this situation.
In 2015, the Spanish government also transferred a series of misdemeanors historically considered criminal actions to the LOPSC and introduced amendments to the Criminal Code. Among these amendments, Art. 578 has been one of the most polemic articles in the last three years. Since its reform, Art. 578 has had its scope broadened and now criminalizes “glorification of terrorism” and the humiliation of “the victims of terrorism or their relatives” through “the distribution or public dissemination of messages or slogans”. It also makes the commission of such an offence online an aggravating factor, including bans from public sector jobs to any convicted under this article, and increasing the maximum penalty from two to three years’ imprisonment.
In this regard, the Amnesty International’s 2017/2018 report criticizes Spanish authorities for pressing excessively “criminal charges against people who had expressed opinions that did not constitute incitement to a terrorism-related offence and fell within the permissible forms of expression under international human rights law”. The cases that prove this argument are numerous. Just to name a few: in 2016 two puppeteers were detained in pre-trial custody for five days suspected of supporting terrorism and inciting hate during a performance in Madrid. In January 2017, the singer César Strawberry was sentenced to a year in prison for tweeting jokes about the ETA. In March 2017, Cassandra Vera was sentenced to two and half years in jail –thrown out by the Supreme Court in 2018—after tweeting some jokes about the assassination of Luis Carrero Blanco by ETA in 1973 while he was prime minister during the Franco dictatorship. Another Amnesty International report, “Tweet… if you dare,” also highlights that the exponential increment in prosecutions for glorification of terrorism and humiliation of victims (from 3 in 2011 to 39 in 2017) is having a chilling effect on dissent, crushing satire and creative expression online, and pushing regular citizens, artists, musicians, and journalists to censor themselves.
It may be true that some of us can consider certain expressions or jokes to be coarse or even condemnable. However, within a democracy, the government should not censor those opinions or behaviors that seem to go against the prevailing opinion or even against the society’s survival. On the contrary, the government should understand what the population, or a part of it, is expressing in order to open a public debate and dialogue, deal with the underlying problems, and consider the possibility of addressing the situation. That is because democracy is a dynamic system, which breathes and evolves through freedom of expression and the right to dissent.
Beatriz Blasco-Aguasca is a researcher in democratic governance and human rights with a background in Political Science and International Relations. She received her M.S. in Ethics and Public Policy from Suffolk University. Beatriz is currently working on a research project on the use of fear in advanced democracies.
Please note that opinions expressed in this article are solely those of our contributors, not of Political Insights, which takes no institutional positions.
Photo Credit: CNN
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