Spain: New law on justifying terrorism
01 September 2000
The government has approved a number of legal reforms: making the definition and sentencing for apologia harsher; treating people who are under 18 years old as adults when they are involved in "terrorist" activity - with the conversion of any acts of kale borroka (street struggle), regardless of how small they may be, into terrorism; and for the Audiencia Nacional (High Court) to be competent in all such cases.
The Penal Code which is in force defines apologia as an incitement to commit offences. It is not enough to publicly applaud a crime or to praise its author, it is also required that a direct exhortation to commit a crime takes place. This definition of apologia results from the need for its punishment not to constitute a criminalisation of ideas or opinions which are publicly expressed, regardless of how unpleasant or annoying they may be for those in power, or any other sector or group.
The new regulation involves maximum penal intervention in a field which is so relevant to freedom of expression. Penal law should distinguish between guilty and innocent, not between "friends" and "enemies". For someone under 18 years of age to be treated as an adult only for the purpose of fighting terrorism is a simple matter of dispensing with the law.
On the other hand, converting public disorder or damage to property into a terrorist crime could lead to the burning of a tyre to block a road during a demonstration becoming a terrorist offence. The intention to cause "political destabilisation" will be decisive. Critics say this entails an unacceptable arbitrariness and is a shameful assault on judicial safeguards. The sentence for minors who perpetrate terrorist crimes is raised to ten years, with a further five years' probation.
The best way to understand what is being planned is to look at a concrete example: if a minor [under 18] commits a murder, a theft and murder, or a rape, the current maximum sentence is five years detention and, in extremely serious cases, a further five years' probation. But if the same minor throws a molotov cocktail at a cash machine, he can be detained for ten years and five years' probation. Public order and property are protected more than life.
The institution of proceedings for terrorist acts committed by minors will not be the responsibility of an ordinary Minors' Court. A National Court for Minors will be integrated into the Audiencia Nacional, whose exclusive competence in terrorist matters has been extended, as offences which were not previously considered terrorism considered as "terrorist". It will no longer be required that the actions of gangs or groups wishing to alter the constitutional order endanger life, it will suffice that their actions have a "political scope".ste.mobi/b.js>
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