Hate crime is one of the wild cards most used to judicialize public debate. Since its last modification in the Penal Code in 2015, political parties and associations of all kinds have constantly brought their rivals to court accused of this crime designed to protect vulnerable groups from possible incitements to violence. The last known sentence on this matter acquits the comedian David Suárez for a sexual joke about people with Down syndrome and shows that the prominence that this crime has acquired as a partisan throwing weapon does not correspond to its true objective.
The Prosecutor’s Office calls for a law to fine discrimination that is not a hate crime
The ruling of the Provincial Court of Madrid rejects the prosecution’s accusation of hate crime in the case of the comedian and makes it clear that intolerance, offensive or unpleasant messages, in bad taste or incorrect, are not a hate crime. The hate crime, recalls this sentence that can still be appealed, “requires more than a feeling of rejection” and hatred is, above all, a feeling. “Hate is a feeling and Criminal Law neither protects nor penalizes mere feelings. And if hating is not a crime, some authors wonder why it should be to incite hatred,” adds the sentence by way of questioning.
The magistrates are clear about the distinction that must be made: “You have to know how to distinguish what is bad taste from what is a crime,” they say. And in order to find a hate crime in a message, a speech or even a joke, there must be an “incitement to hatred or violence (…) the presence of a real risk, even in the context of potential danger, for protected legal assets “. In this case, David Suárez’s joke receives all kinds of qualifications from the judges, but it does not cross the border of criminal law to be considered a crime against people with Down syndrome.
The judgment itself cites national and international jurisprudence to justify the non-intervention of judges in matters like this one. From the ruling of the European Court of Human Rights, which declared that burning a photo of the king is protected by freedom of expression, to that of the Constitutional Court, which upheld the conviction of the nationalist leader Tasio Erkizia for praising ETA through several orders and court rulings. Supreme. For example, when the judges in June dismissed a complaint by Vox against Minister Reyes Maroto for associating the party with sending knives to political leaders in the Madrid elections, or when they rejected investigate Albert Rivera for sharing a piece of news about an investigation to some Catalan professors.
In those cases, the different courts made clear the limits of hate crime and the like. In 2018, for example, the Supreme Court confirmed a hate crime conviction for a Twitter user who celebrated and encouraged sexist murders in Spain. That sentence recalled that the hate crime can be applied to a speech, he said, “that provokes, directly or indirectly, feelings of hatred, violence, or discrimination.” A year before, the Supreme Court condemned the singer César Strawberry for exalting terrorism and humiliating the victims and left this reflection: “Between the hatred that incites the commission of crimes, the hatred that sows the seed of confrontation and that erodes essential values of coexistence and hatred that is identified with animosity or resentment, there are nuances that cannot be ruled out by the criminal judge, “concluded that sentence later revoked by the Constitutional Court.
Two years earlier, in 2016, the Constitutional Court confirmed the conviction of the nationalist leader Tasio Erkizia for glorifying ETA terrorism. A sentence that resulted in a conviction for Spain in the Strasbourg court and that called for an analysis of each case with its own characteristics. And the ruling of the European Court of Human Rights that endorsed the burning of a photo of the king as freedom of expression, according to the Madrid Court, “highlights that the border between freedom of expression and hate speech is not clearly defined in our country “.
In that sentence, Judge Adela Asúa issued a private vote: “The foul criticism, the politically incorrect manifestations, the bland gestures or acts, in bad taste or shocking exaggeration, are not expelled from the legitimate field of freedom of expression,” he said. the then magistrate of the court of guarantees. All this, as evidenced by the sentence that now acquits David Suárez, shows that hate speech not only has to offend: it also has to seek discrimination against a group or even violence against it, even if it does not succeed.
The comedian is acquitted because, although the judges recognize that his tweet “has caused pain, has generated gratuitous damage”, they do not consider that black humor can be considered a crime. “We are not facing a typical action of article 510 CP, it is not a hate crime, so it is only possible to dictate an acquittal”, says the Provincial Court of Madrid in a sentence that can still be appealed before two more instances .
The protagonism of the hate crime
The arguments constantly presented by the Spanish courts on this matter contrast with the prominence of hate crime in public debate. In recent years, for example, the criminal chamber of the Supreme Court has had to examine and file various complaints filed by and against politicians for public statements. For example, the one that Vox filed against Minister Ione Belarra for assuring that they were “Nazis with bare faces.” Or the one he presented against Minister Maroto for the episode of the razor. Or the one presented against the leader of Vox, Javier Ortega Smith, for stating that the ‘Thirteen Roses’ were murderers and torturers.
There are dozens of examples. The last, the one carried out by the Catalan Government when announcing a complaint for, among others, a hate crime against Pablo Casado for stating that children who do not speak Catalan do not have permission to go to the bathroom in Catalan schools. Last February the Seville Court ratified the acquittal of the feminists who in 2014 participated in the so-called “insubordinate pussy” procession, accused by Christian Lawyers of a crime against religious feelings and another of hatred.
For the Madrid court, the racist Vox poster on foreign minors was not a hate crime: two of those three magistrates were the ones who, as elDiario.es explained yesterday, did force David Suárez to be brought to trial for his tweet after a first case file. Rapper Pablo Hasél has recently been acquitted of a hate crime attributed to him against Real Betis Balompié after wishing that the team’s plane would crash for his support of player Roman Zozulya.
Going to the prosecution of a hate crime to settle an ideological dispute is therefore common but rarely successful in court. The Supreme Court made it clear in 2020 that in order to talk about hate crime, there must be a message aimed directly at discriminating against groups. He said this in the sentence in which he confirmed the conviction of the singer of the Nazi music group ‘Battalion of Punishment’ for the supremacist nature of his lyrics and songs of his concerts.
That ruling of the Supreme Court analyzed his letters and messages and concluded that there was a “potential danger that is inherent in his radicalism that increases exponentially.” The dissemination of these messages, added the criminal chamber of the Supreme Court, “given their discriminatory sense, in no way can they be protected by the right to ideological or expression freedom, since they carry strong supremacist expressions of contempt and / or of hostility against individuals of certain groups, for the mere fact of being part of a community that is not tolerated. ”
Criticism of hate crime
Now the Provincial Court of Madrid is clear in criticizing even the basis of the hate crime. “If hating is not a crime, some authors wonder why it should be to incite hatred,” explains the sentence before adding that the European ruling on the burning of flags “highlights that the border between freedom of expression and hate speech is not clearly defined in our country. ” And it is not the only one to reflect, in some way, this criticism: the Prosecutor’s Office has already asked for a reform of the legal precepts that address discrimination as a crime or as an aggravation of another crime.
The 2020 Report of the Prosecutor’s Office recalls that it has been calling for a reform in this regard for several years. For example, it requested that reasons such as aporophobia, language, physical appearance or anti-Gypsyism be included in the aggravating circumstance of article 22.4 of the Penal Code. Also, that the discriminatory motives that include hate crimes and this aggravation be unified, separated by almost 500 articles in the Law. The Prosecutor’s Office has also asked several times that the sentences for this type of hate crimes be more proportionate and that they be promote, for example, work for the community in the face of prison sentences.
The figures are also a point of conflict. The statistics of convictions and convicts of the Ministry of Justice, collected by the General Council of the Judiciary, do not record how many convictions there are per year for this type of hate crime. Neither the compendiums of the Prosecutor’s Office. In fact, it is common for the Public Ministry to complain in its Annual Report about the lack of a record of affairs to be able to know how many processes are going on for hate crimes. This situation, which the Office of the Prosecutor defines as “deficient”, does not allow an adequate record of the procedures.
The data from the last year of the territorial prosecutor’s offices show a decrease in hate crimes, a figure clearly affected by the pandemic, but a good part of these crimes were transferred to the internet and social networks. The General Prosecutor’s Office received in 2020 a total of 34 complaints for possible hate crimes and filed 15 of them for lack of criminal relevance. In total, the general prosecutors’ offices kept 139 cases related to hate crimes open compared to 261 open in different courts. At the level of trials and sentences, the Office of the Prosecutor presented qualification briefs in 67 trials and 41 resolutions were issued. The statistics do not reflect whether they were convictions or acquittals.