On March 13, the European Court of Human Rights ruled that burning a picture of Spain’s monarchs amounts to freedom of speech. The ECHR was overruling a 2007 decision by Spain’s National Court, which sentenced two men to pay 2,700 euros for burning a picture of former king Juan Carlos during a protest. The ECHR stated that the sentence violated Article 10 of the European Convention of Human Rights, which says that the right to free speech includes “freedom to hold opinions and to receive and impart information and ideas without interference by public authority.”
Spain will have to compensate the two men with 9,000 euros plus the totality of the original fine. Most importantly, the ruling sets a precedent that will determine the outcome of similar trials in the future. It also provides new guidelines for an ongoing discussion about free speech in Spain, especially when it comes to criticising the crown.
Articles 490.3 and 491 of the Spanish penal code shield the royal family from criticism, and even mockery, and some judges have interpreted them literally in the past. In 2007, for instance, two cartoonists from the satirical magazine El Jueves had to pay 3,000 euros each after issuing a cartoon of current king Felipe, then the prince, having sex with queen Letizia.
“These two precepts are an anomaly and don’t meet European standards,” said Rafael Bustos, a professor in Spanish Constitutional Law at the University of Salamanca who specializes in free speech. Those European standards establish that high officials—including kings—shouldn’t receive special protection regarding their right to honor and privacy, but rather the opposite. “They’re public people, so they ought to accept bigger criticism and a greater invasion of said rights.”
The monarchy’s privileged status in the penal code has had a “chilling effect” on anyone who intended to criticise it. Indeed, for decades after the death of Franco, in 1975, a tacit self-censorship kept journalists, artists and comedians from taking it against the kings. But in recent years, as corruption scandals involving the royal family started pouring in, this began to change.
“The special protection of the monarchy comes from a need felt in the 70s and 80s to protect this institution, given the instability of Spain’s democracy and the little legitimacy that the previous king had,” Bustos said. “But in 2018 it doesn’t make any sense.”
Rappers, portraits and cocaine
The ruling from the ECHR came in a moment of heated debate about the limitations of free speech in Spain. Just last month, four different cases contributed to the perception that there is an ongoing crackdown on such freedoms.
In mid February, the Supreme Court sentenced a rapper known as Valtonyc to three and a half years in prison for “glorification of terrorism, humiliation of its victims, grave insults to the king, and threats.” In lyrics he wrote six years ago, Valtonyc, 24, praised the Basque terrorist group ETA, criticized and insulted the monarchs, and called for violence against conservative politicians and businessmen.
Critics deemed the sentence disproportionate, arguing that the lyrics should be read as artistic work covered by free speech. Besides, these were old YouTube videos which hadn’t reached a large audience—indeed, the channel’s views multiplied after the ruling—and the convict didn’t hold a position of public responsibility. But others had a different reading.
“The sentence for insulting the crown is a serious mistake,” Bustos said. “But there’s this other part about glorifying terrorism, and his lyrics were terrible: there’s an absolute and permanent insult to terrorism victims, an evident incitement to violence and a glorification of terrorists and their actions.”
The professor added that “this amounts to what is known as hate speech or discourse de la haine in Europe, and it isn’t tolerable.” There is no consensus on what constitutes hate speech, but the ECHR generally draws a line when there is incitation to violence or hate.
In early March, the National Court sentenced another rapper, Pablo Hasel, to two years in jail and a fine of 24,300 euros. Similarly to Valtonyc, Hasel was found guilty of glorification of terrorism, plus insults to the crown and state institutions. In his case it was the content of 60 of his tweets (he has 97,500 followers on Twitter) and the lyrics of one of his songs.
Furthermore, in February, a local court ordained the precautionary sequester of the book Fariña, by Spanish journalist Nacho Carretero, about cocaine smuggling in the northwestern region of Galicia in the 80s and 90s. After a local mayor, who appeared in the book as having taken part in the trade, filed a complaint for slander, the judge put a halt to the distribution of the book until the final sentence is delivered in April or May.
Fariña’s publishing house, Libros del KO—a small, independent house specializing in non-fiction—and several booksellers have found ways around what they see as old-fashioned censorship.
The third controversy didn’t come from a court, but from the directors of Madrid’s biggest contemporary art fair, ARCO. The board of the fair decided to take down a piece that featured photos of Catalan politicians and civil leaders who are in pre-trial detention for their role in the separatist bid. The piece was called “Political prisoners in contemporary Spain.”
Religion matters
Shortly after the ECHR backed the men who burned a portrait of the king, a court in Madrid initiated preliminary proceedings against Spanish actor Guillermo Toledo for insulting God and the Virgin Mary in a Facebook post. Toledo was protesting the judicial process against three women who paraded around Sevilla carrying a two-meter plastic vagina. The performance was self-titled “Procession of the Holy Insubordinate Pussy,” and mocked the traditional Holy Week processions, in which devotees typically carry a figure of the Virgin Mary.
“I take a shit on God and have some extra shit to shit on the dogma of sainthood and the virginity of the Virgin Mary. This country is an unbearable shame. I’m disgusted,” Toledo wrote.
As in the case of the women, the lawsuit against Toledo came from the Association of Christian Lawyers. In their complaint they argued that Toledo’s words attack freedom of religion and “constitute libel and slander, call for discrimination, and are against religious feelings, honour and moral integrity.” Toledo has already said he won’t show up in court.
Bustos said that even if some judges are drawn to overprotecting the crown or religious sentiment, this is not representative of the majority of the Spanish courts. He also denied that Spain is particularly harsh when it comes to limiting free speech rights.
“That’s a misleading perception,” he said. “It’s actually quite the opposite; the free speech regime in Spain has been one of the most generous in Europe. But the cases that win in court don’t make it to the mass media.”
However, there could be a trend building up towards the opposite direction.
“This exacerbated protection of the monarchy and religion didn’t exist at all in the Constitutional Court in the past,” Bustos said. “But it has appeared in recent years. That’s the novelty. And to tell the truth, it isn’t very positive.”
PHOTO: Spain’s King Felipe VI and Queen Letizia in Mexico City, June 2015. Photo by Presidencia de la República Mexicana / Flickr
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