Spanish Constitutional Court, TC-112/2016, Judgment of 20 June 2016
- 2016
- Spain
Topics
Terrorism propagandaLegal bases
European Convention on Human Rights Council of Europe Convention on the Prevention of Terrorism (CECPT), CETS No. 196 Spain: Penal Code (Organic Law No. 10/1995 of November 23, 1995, as amended up to Law No. 4/2015 of April 27, 2015) Spain: Constitution of 1978Courts
Constitutional Court, SpainLaws
Freedom of Expression Freedom of religion or beliefFacts
On 21 December 2008, Mr XX participated as speaker in a public act celebrated in memory of XX (alias “Argala”), former leader of ETA, on the day of the thirtieth anniversary of his assassination. The act was given publicity through leaflets that were distributed in the streets with a text attributed to Argala: “The armed struggle we do not like anybody, the armed struggle is unpleasant, it is hard, as a result of them one goes to jail, to exile, one is tortured; as a result of it one can die, one is forced to kill, hardens the person, hurts him, but armed struggle is essential to move forward”. In his discourse, XX asked for “a reflection [to] choose the most suitable path, the path that harms the State the most, that leads this people to a new democratic scenario” and ended with the shouts Gora Euskal Herria askatuta, Gora Euskal Herria euskalduna and Gora Argala - Viva Euskal Herria libre! Long live Euskal Herria vasca! Viva Argala!, cries that were answered by the public. On 13 May 2013, the Audiencia Nacional convicted Mr XX for the crime of exaltation of terrorism to serve one year of imprisonment and seven years of absolute disqualification. The judgment was appealed to the Supreme Court that dismissed the case. The convicted formulated an amparo claim before the Constitutional Court alleging that the judgment of the Audiencia Nacional and of the Supreme Court violate his fundamental rights to freedom of expression.
Legal grounds
Article 578 of the Spanish Penal Code (crime of exaltation of terrorism); Article 5 of the CECPT (public provocation to commit a terrorist offence); Article 16.1 of the Spanish Constitution (ideological liberty); Article 20.1 of the Spanish Constitution (freedom of expression); Article 10 of the ECHR (freedom of expression).
Findings
The Constitutional Court dismissed the case (4 in favour, 1 dissenting). Acknowledging the potential conflict generated by the interpretation and application of the crime of exaltation of terrorism with the right to freedom of expression, it found no such conflict in the present case and, therefore, that there had been no violation of fundamental rights. In support of its findings, it reasoned as follows. 1) As a point of departure, it affirmed that the right to freedom of expression is not absolute but has limits. To determine these limits, its task is to “elucidate whether the events that occurred are an expression of a legitimate political opinion that could stimulate the debate aimed at transforming the political system, or, if on the contrary, they seek to unleash an emotional reflex of hostility, inciting and promoting hatred and intolerance incompatible with the value system of democracy. Also, the proportionality principle must be taken into account and applied (FJ 2). 2) Regarding the possible conflict between the crime of exaltation of terrorism and freedom of expression, it relies on the doctrine it developed with respect to the constitutionality of the crime consisting of the denial and dissemination of ideas that justify genocide, and which places limits on this freedom. It furthermore holds that criminally sanction demonstrations in support of terrorist phenomena or their perpetrators is consistent with ECHR case law (Hogefeld v. Germany) and the EU in favour of criminally sanctioning demonstrations in support of terrorist phenomena or their perpetrators. It is also consistent with article 5 of the European Convention on the Prevention of Terrorism, which obliges states parties to take the necessary measures to criminalize the crime of public provocation to commit crimes of terrorism as well as article 3.1.a. of the EU Framework Decision on the fight against terrorism, adopted in 2002, and amended in 2008 (FJ3). 3) In support of its holding related to the compatibility between criminal sanctions of conducts of incitement or apology of terrorism, it invokes ECHR case law in support of its findings, including XX v. France, XX v. Turkey, XX v. Turkey, etc (FJ4).