Abstract
According to the doctrine of “hate speech,” any message qualifying as such will imply an abuse of the fundamental right to freedom of speech. This doctrine, elaborated in different stages by the European Court of Human Rights over the last decades, has been followed by Spanish jurisprudence as an interpretive guideline for the so-called “apologetic crimes.” In keeping with this interpretative line, the ratio legis of this group of crimes would consist of the prohibition of hate speech. The vagueness of this idea has led a doctrinal sector to defend the distinction between damage (serious violation of individual interests) and offense (slight annoyance for collective interests). In this paper, the assumptions and effects of the doctrine of “hate speech” will be exposed and critically assessed and the practical efficacy of the “harm-offense” binomial will be relativized, to reach a common conclusion: both conceptions are tautological.
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Notes
- 1.
According to this precept: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article does not prevent States from subjecting broadcasting, cinematographic or television enterprises to a system of prior authorization. The exercise of these freedoms, which entail duties and responsibilities, may be subject to certain formalities, conditions, restrictions, or sanctions, provided for by law, which constitute necessary measures, in a democratic society, for national security, territorial integrity or public safety, the defence of order and the prevention of crime, the protection of health or morals, the protection of reputation or of the rights of others, to prevent the disclosure of confidential information, or to ensure the authority and impartiality of the judiciary.” For its part, the clause prohibiting the abusive exercise of Convention rights, provided for in Article 17 ECHR, reads: “Nothing in this Convention shall be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms set forth in this Convention or at their limitation to a greater extent than is provided for herein.”
- 2.
In the words of the aforementioned STEDH 16-7-09, “the language used by the plaintiff clearly incited discrimination and racial hatred, which cannot be camouflaged by the electoral process. Incitement to hatred does not necessarily require the calling of this or that act of violence or other criminal act. Attacks committed against individuals by insulting, ridiculing, or defaming certain parts of the population and their specific groups, or incitement to discrimination, as in this case, are sufficient for the authorities to privilege the fight against racist discourse over irresponsible freedom of expression that violates the dignity, even the security, of such parts or groups of the population. Political discourses that incite hatred based on religious, ethnic or cultural prejudice represent a danger to social peace and political stability in democratic States.” For all these reasons, the ECHR considers the Belgian sentences against Féret to be in accordance with Article 10 ECHR. Particularly graphic in this regard is F.J. No. 46 of the ECHR 17-12-13 (case of Perinçek v. Switzerland).
- 3.
Decision adopted by the Committee of Ministers on October 30, 1997, at the 607th session of the Ministers’ delegates.
- 4.
The doctrine of hate speech is also found in the jurisprudence of the Provincial Courts (SSAP Barcelona, 5ª, 27-4-18; Santa Cruz de Tenerife 7-3-14) and the Criminal Courts (SSJP n° 2 Manresa 307/11, 11-11; n° 2 Lleida 16-11-06; n° 2 Logroño 2-4-04).
- 5.
Vid. also, on this subject, the SAN 5-12-08 and, in particular, its interesting particular vote. A similar reference is found, previously, in STEDH 8-3-11, which resolved the case of Otegi against Spain, F.J. 1: “Although some of the terms in the plaintiff’s speech paint one of the most negative pictures of the King as an institution, thus acquiring a hostile connotation, they do not call for the use of violence nor is it hate speech, which in the Court’s view is the essential element to be considered (see, a contrario, Sürek v. Turkey (No. 1) [GS], No. 26682/1995, para. 62, ECHR 1999-IV). On the other hand, it points out that neither the domestic courts nor the Government have justified the applicant’s conviction by mentioning incitement to violence or hate speech.”
- 6.
Along the same lines, and very graphically, the SAP Barcelona, 6ª, 12-12-18, F.J. 2°: “It is necessary to restrict the scope of the concept to its original core: the fight against inequality to protect groups that may be described as historically vulnerable in the framework of the production of the event, which does not allow for the inclusion of State institutions, which may be susceptible to protection by other means, where appropriate”. The resolution continues: “(…) it seems a complete institutional contradiction to affirm (as do the ECtHR and the Constitutional Court) that freedom of expression has a particularly preferential position when it contributes to the public debate on matters of general relevance, in which subjects exercising public functions are involved, and then to point out that such subjects may form part of some of the groups susceptible to discrimination through the discourse of hate, since there is no doubt about the tremendous discouraging effect that this recognition has on the exercise of the right. Therefore, not any group or social group of persons can be subject to the protection provided by the prohibition of the so-called ‘hate speech’, which must be limited to vulnerable and historically discriminated groups in the specific context in which the speech is issued.” In the same sense, the STEDH 28-8-18 has recently been pronounced, which in the case of Savva Terentyev against Russia considered that the police forces cannot be considered a group or collective that needs special protection under the umbrella of hate speech. On the contrary, it would be a public institution, which like others of its kind, must have a greater degree of tolerance for offensive words. In the same vein, but in a broader context in relation to freedom of expression and the crime of slander, STEDH 20-11-18 was issued, relating to the case of Toranzo Gómez against Spain.
- 7.
In a similar vein, Section 5 of the Barcelona Provincial Court handed down its ruling 787/12, 6-9, which revoked the sentence imposed in the case of the Plataforma per Catalunya pamphlet by the SJP no. 2 Manresa 11-11-11. It also warns of the risk of abuse of the regulatory model that we are dealing with in the Recommendation on General Policy No. 15, on the fight against hate speech, of 8 December 2015.
- 8.
Particularly revealing are the cases of Cassandra Vera and Cesar Strawberry. The facts of the Cassandra Vera case consisted of the continued publication on the social network Twitter of thirteen jokes about the so-called “Operation Ogre,” that is, the attack perpetrated by ETA on December 20, 1973 against Admiral Luis Carrero Blanco, the then president of the government of Spain during Franco’s dictatorship. The jokes alluded to the way in which the damaged vehicle flew over an adjacent wall as if it were some kind of space trip. The SAN, 4ª, 9/17, 29-3, condemned Cassandra Vera to a first instance sentence of 1 year in prison and 7 years of absolute disqualification for the commission of a continuous crime of exaltation of terrorism with humiliation of its victims. However, this decision was overturned by STS 95/18, 29-2, which held that the reference messages prosecuted could not be subsumed under Article 578 of the Criminal Code. For his part, Augusto Montaña Lehman, known artistically as “César Strawberry,” was tried as the alleged perpetrator of a crime of glorification of terrorism for the publication on Facebook of six jokes with different content relating to certain terrorist attacks and their victims, as well as the Royal House. SAN 1, 20/16, 19-7, analyzed each of Strawberry’s messages in detail, to conclude that none of them really praised terrorism in general, or the ETA terrorist organization in particular. Nor did the Audiencia Nacional observe in them any humiliation or discredit of the victims of terrorism. The National Court’s decision was overturned by STS 4/17, 18-1, which therefore revoked the acquittal and sentenced César Strawberry to a year’s imprisonment and six and a half years’ absolute disqualification as the author of a continuing crime of glorifying terrorism with humiliation of its victims. This sentence was recently annulled by STC 25-2-2020, which considered that the convicted person’s expressions would be covered by the fundamental right to freedom of expression.
- 9.
This criterion is followed, for example, the most recent SAN 4ª, 9/17, 29-3.
- 10.
Through STC 112/16, the Constitutional Court extended the criteria set out in STC 235/07 for the denial and justification of genocide set out in the now-defunct Article 607.2 CP, integrated from LO 1/2015 into the current Article 510 CP, to cases of the exaltation of terrorism under Article 578 CP, in a manner that is fully compatible with the criteria set out in that article.
- 11.
This argument can also be found in another recent private vote issued by Judge Manuela Fernández Prado in relation to SAN 3/18, 2-3, in which Pablo Hasel was convicted of the crime set out in Article 578 of the Criminal Code for tweets extolling the terrorist group Grapo against the King and the Guardia Civil, among other institutions. In the same direction, see, STS 646/18, 14-12 and SAN 6/18, 1-3.
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Gomez Martin, V. (2023). Harm, Offense, and Hate Speech. In: Demetrio Crespo, E., García Figueroa, A., Marcilla Córdoba, G. (eds) Crisis of the Criminal Law in the Democratic Constitutional State. Legal Studies in International, European and Comparative Criminal Law, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-031-13413-5_7
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