The Ghent Court of Appeal has rejected this Tuesday the delivery to Spain of rapper Josep Miquel Arenas, known as Valtònyc, for a crime of threats, after having already ruled out the crimes of insults to the Crown and glorification of terrorism for which he also demands the Spanish justice. The ruling of the Ghent Court of Appeal can be appealed by the parties to the Court of Cassation, where the forms of the process are reviewed, not the merits.
The Constitutional of Belgium rules that freedom of expression protects insults to the king
“There is no extradition for any of the three cases,” lawyer Simon Bekaert told the press after hearing the sentence, according to EFE. “A good day for music and freedom of expression,” he congratulated in a message on Twitter.
The Belgian Constitutional Court already moved away the extradition of Valtònyc two months ago. On October 22, the Belgian Constitutional Court decided that insults to the king are protected by freedom of expression; and, therefore, that a Belgian law of 1847 relating to offenses to the king “is contrary to freedom of expression”, so it does not apply to judge the rapper in 2021.
On September 15, 2020, the Court of Appeal of Ghent (Belgium) decided to refer a preliminary question to the Belgian Constitutional Court on the extradition for terrorism carried out by Spain after the rapper left for Belgium in June 2018. What the court of Ghent asked to the Constitutional is if the crimes of libel for which Valtònyc has been sentenced in Spain are protected by a fundamental right such as freedom of expression. And the Constitutional Court considered that the crime of offenses is contrary to freedom of expression.
Simon Bekaert, Valtònyc’s lawyer, explained: “Of the three crimes for which he was convicted by the Supreme Court, the threats and the glorification of terrorism have already been dismissed in the courts of first instance.” And now the Constitutional has knocked down de facto that nineteenth-century Belgian law, insofar as it has been considered “contrary to freedom of expression”, insofar as it “does not satisfy an urgent social need and is disproportionate to the objective of protecting the reputation of the king’s person.”
“Article 19 of the Constitution prohibits freedom of expression from being subject to preventive restrictions,” stated the judgment of the Belgian Constitutional Court, which adds: “By sanctioning crimes publicly expressed against the person of the king, article 1 of the law of April 6, 1847 constitutes an interference in the right to freedom of expression. ”
The European Court of Human Rights in Strasbourg has already ruled by prioritizing freedom of expression over insults, as in the case of Arnaldo Otegi in 2011.
The Belgian justice rejected in the first instance the delivery of Valtònyc in September 2018, alleging that there was no double criminality, that is, that the charges for which he was convicted in Spain are not classified as a crime in Belgium, a decision that was appealed by the Public Prosecutor’s Office of Ghent.
In addition, there has also been a preliminary ruling from the Court of Justice of the EU, in March 2020, in which it ruled that Spain did wrong by applying the 2015 Penal Code to Valtònyc. The thesis of Spain defended that the Spanish criminal law of 2015 be applied to it, when the sentence against Valtònyc was passed – but not when the facts were committed -, and that it punishes more severely the apology of terrorism, instead of that of 2012, more beneficial to the interests of the Mallorcan rapper and which implies an insufficient a priori sentence to be extradited.
Valtònyc’s defense, played by Paul and Simon Bekaert, whom Gonzalo Boye accompanied in the courtroom, argued that the judicial authorities “misled” in the process by not having communicated that there had been a change in the Spanish Penal Code between the commission of the facts, in 2012, and the aggravation of the sentences foreseen when the surrender was requested, in 2018.
The ruling of the Ghent Court of Appeal can be appealed by the parties to the Court of Cassation, where the forms of the process are reviewed, not the merits.