Freedom of expression, imprisoned
On December 6, 41 years have passed since the ratification of the current Spanish Constitution, a milestone that allowed an end to one of the darkest chapters of Spanish history. This period, also known as "Francoism" or the "Francoist dictatorship", meant the implementation of a totalitarian state characterized, above all, by the great setback in the field of fundamental rights. One of the most punished fundamental rights was that of freedom of expression since the authorities, using instruments such as criminal law, prior censorship and the 1938 press law repressed any opinion that opposed the principles of the regime led by Frank.
At present, freedom of expression is covered in the first section of article 20 of the Spanish Constitution, in which the right is recognized “to freely express and disseminate thoughts, ideas and opinions through the word, the writing or any other reproduction medium " . However, the Constitution, in none of its precepts, specifies what is understood by the term "freedom of expression". That is why it is convenient to explain the meaning of this fundamental right before deepening the matter. Therefore such freedom is considered "a principle that supports the freedom of an individual or a community to articulate its opinions and ideas" without being processed. It is also a human right recognized in article 19 of the Universal Declaration of Human Rights in which “every individual has the right to freedom of opinion and expression; This right includes not being disturbed because of his opinions, investigating and receiving information and opinions, and that of disseminating them, without border limitation, by any means of expression ” .
Although this fundamental right is protected and recognized in several legal texts of great relevance, it is increasingly noticeable that Spain is the great protagonist of a process of decline in that matter. Colloquially, it is affirmed that freedom of expression is not living its "better times" and that Spanish society is closer, in this area, to the ancient and retrograde Franco regime than to the most desirable democracy. That is why Amnesty International has decided to publicly denounce this situation, since without freedom of expression, there would be no fundamental element that allows us to speak of "democracy".
When talking about the right covered by article 20 of the Spanish Magna Carta, we must bear in mind that this is not absolute. That is, it has certain limits collected in its fourth section in which it is determined that “these freedoms have their limit in respect for the rights recognized in this title, in the precepts of the laws that develop it and, especially, in law to honor, to privacy, to one’s image and the protection of youth and childhood ” . Regardless of the fact that the Spanish Constitution provides for certain limitations, we must not forget the second and fifth sections of the same article in which the prohibition of any type of prior censorship is required and that “only the kidnapping of publications can be agreed […] by virtue of Judicial Resolution " . In recent years, the use and creation of legislative tools, such as the Citizen Security Law (also known as the Gag Law) and the crime of hate, considered as the great oppressors to freedom of expression, together with the law, together with the law National Security.
The "hate crime" was the antecedent that initiated the process of cutting freedom of expression in Spanish society. Through this instrument, it was intended to help constitutional protection to "certain cases of different but grouped features […] for the hatred they try to convey to the recipient of the message" . These behaviors are typified in the Criminal Code, but due to the low jurisprudence and its ambiguous writing, the sense of the term "crime of hatred" has been expanded to areas in which its application can mean a violation of fundamental rights.
The colloquially known as the Gag Law, Organic Law 4/2015, whose objective consists in “the protection of the free exercise of fundamental rights and public freedoms and other rights recognized and protected by the legal system”, caused national and national International, an unequivocal rejection. The New York Times expressed: "This law brings memories of the worst days of Franco’s regime and does not proceed in a democratic nation" and "the law implies a direct threat to the rights of peaceful meeting and freedom of expression in Spain" .
Finally, analyzing the jurisprudence of the Spanish Constitutional Court that specifies that "freedom of expression finds a limit on the internal and external security of the State, which can be at risk when there is a destruction of the prestige of democratic institutions […]", The National Security Law can also be interpreted as a limit to freedom of expression.
There are many cases in which freedom of expression has been limited due to the use of these coercive tools. Among them, the censorship of a photographic exhibition entitled "Political prisoners in contemporary Spain" at the Arco Fair, supported by public funds, stands out. Although the Constitution does not need anything about censorship, it exists, and involves the implementation of actions to silence citizens and, in this case, to hide the opinion that shares much of the population, the existence of political prisoners or , according to others, of prisoners.
Of great notoriety was the precautionary kidnapping, that is, the judicial retention, of the work "Fariña". According to the plaintiff, the former mayor of O Grove, said book violated his right to honor. As mentioned above, freedom of expression “has its limit […] regarding the right to honor” of another person, but can it be considered as a violation of the right to honor the description of the direct link that the plaintiff had with Galician drug trafficking?
Another of the instruments used by the Judiciary to limit the right to freedom of expression is article 578 of the Criminal Code and its 2015 modification. Said article "Punishes with between one and three years in prison the exaltation or public justification of terrorism or the realization of acts that involve discredit, contempt or humiliation of the victims of terrorist crimes or their relatives" . And its modification includes "crimes committed through social networks" . At present, due to this law, more people have been condemned for the exalting of terrorism than at the time when ETA carried out terrorist actions. This law has served to prosecute people who have written, on social networks, jokes on the White Carrero attack and the like. But, without a doubt, the most popular case was that of the "puppeteers", in which in one of their shows they showed a poster in which they wrote "Gora Alka-Eta". The aforementioned precept and its subsequent modification assumed that any act, without the intention of any, could be considered as apology for terrorism.
Although many artists have been punished for having tried to express their opinions, the rap singers have been the most persecuted for their lyrics. Rap is a musical style created in the most depressed areas of the United States by the African population that denounced their situation through rhymes. Therefore, why does Spanish legislation on freedom of expression do not allow "rappers" to follow the origins of their musical style?
One of the most popular cases was Valtonyc, a rapper who fled to Belgium when he was prosecuted for his lyrics. The Constitution recognizes the right to freedom of opinion, as long as no one is insulted through this. According to the Constitutional Court "when opinion includes unnecessary vexation expressions for the issuance of the message or when the mood of insulting or vexing in its issuer is appreciated" we are facing an insult, but "sometimes, from that doctrine, terms that, although objectively vexatious, they are necessary to contribute to the democratic public debate ” . Therefore, when should insult in one sense or another be considered? And why were the letters of Valtonyc as "insult" and not as "contributions to the democratic public debate" ?
As mentioned in the initial paragraphs, Amnesty International has decided to publicly announce the serious setback in terms of freedom of expression in Spain. Even the prestigious American newspaper The New York Times has published various writings accusing the same situation. Personally, I appreciate that limiting responses to freedom of expression have been given by the Judiciary, as in the cases mentioned above. In them, arguments have been used that denote a clear democratic decline towards past times and an involution in the development of the fundamental freedoms and rights of citizens. Analyzing these cases, and many others, the use of these legislative tools whose sole objective is to silence and ignore the reality of Spanish society can be considered abusive.
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