Spain's free speech problems laid bare in ECHR ruling and new Amnesty report

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Spain's free speech problems laid bare in ECHR ruling and new Amnesty report
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The European Court of Human Rights ruled on Tuesday 13 March that Spain violated the freedom of expression of two men who were convicted of "incitement to hatred and violence against the king and the monarchy" after burning photographs of the king during a demonstration in Girona in September 2007.

On the same day, Amnesty International published a new report highlighting numerous cases in which Spain's anti-terrorism laws have been used to target "social media users, journalists, lawyers and musicians", breaching the country's human rights obligations and leading to "increasing self-censorship and a broader chilling effect on freedom of expression in Spain."

See: Violation of the freedom of expression of two persons convicted of burning a photograph of the Spanish royal couple in 2007(ECHR press release, pdf):

"The Court found in particular that the act allegedly committed by the applicants 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. It also noted that it was one of those provocative “events” which were increasingly being “staged” to attract media attention and which went no further than the use of a certain permissible degree of provocation in order to transmit a critical message in the framework of freedom of expression. Moreover, the Court observed that the act in question had not constituted incitement to hatred or violence. Lastly, it held that the prison sentence served on the applicants had been neither proportionate to the legitimate aim pursued (protection of the reputation or rights of others) nor necessary in a democratic society."

According to the newspaper Público, on Tuesday night a group of people gathered outside the council house in Banyoles, near Girona, to celebrate the judgment by burning photos of the king and sharing bottles of cava.

The Amnesty report concerns the use of Article 578 of the Spanish Criminal Code, which prohibits "glorifying terrorism" and "humiliating the victims of terrorism".

The report documents numerous cases in which "the authorities have used Article 578 to target political speech, particularly on social media, and the creative community in Spain. This is an especially troubling aspect of the restrictions on freedom of expression under this law."

See: Spain: Counter-terror law used to crush satire and creative expression online (AI, link):

"An exponential increase in the number of people falling foul of a draconian law banning the “glorification of terrorism” or “humiliating victims of terrorism” is part of a sustained attack on freedom of expression in Spain, a new report from Amnesty International has found.

Cases includes the trial and imprisonment of musicians (in particular rappers), journalists and social media users. There has been a significant rise in arrests and prosecutions under this law since 2015, when the government amended the Criminal Code:

"broadening the scope of Article 578 to criminalize “glorification of terrorism” through “the distribution or public dissemination of messages or slogans”; making the commission of such an offence online an aggravating factor; and increasing the maximum penalty from two to three years’ imprisonment."

The "glorification of terrorism" is also now an offence under EU law, having been included in the 2017 Directive on combating terrorism, heavily criticised by human rights groups for its content as much as for the way in which it was agreed by the EU institutions. As EDRi noted after the Directive was passed:

"the Directive criminalises “glorifying terrorism”, without defining what it means, thereby creating the risk of accidental or deliberate imposition of (or threat of) excessive punishment and censorship. In addition, the Directive criminalises consulting “terrorist websites”, which will create an obvious chilling effect as people avoid the risk of viewing anything that might be subsequently decided to be a “terrorist website”."

Further information is available in SEMDOC: Directive on combating terrorism

Another issue not mentioned in the Amnesty report is the use by the Spanish authorities of hate crime charges to try to suppress political speech.

For example, Barcelona's prosecutor opened an investigation on the grounds of possible hate crimes following protests outside hotels being used to acommodate police officers who had been sent to Catalonia as part of the operation to try to halt the 1 October vote on independence.

Judicial complaints on the same grounds have been brought by police unions against satirical magazine El Jueves and against statements made by a character in a radio sketch show.

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