Spain/ Catalunya High Court (Tribunal Superior de Justicia de Cataluña)/ Judgment no. 128/24 of 23 April 2024. Criminal Appeal Chamber of the Civil and Criminal Chamber. High Court of Justice of Catalonia. Appeal against Judgment Chamber Roll 216/2023 (S

Country

Spain

Title

Spain/ Catalunya High Court (Tribunal Superior de Justicia de Cataluña)/ Judgment no. 128/24 of 23 April 2024. Criminal Appeal Chamber of the Civil and Criminal Chamber. High Court of Justice of Catalonia. Appeal against Judgment Chamber Roll 216/2023 (Sentencia nº 128/24 de 23 de abril de 2024. Sala de Apelación Penal de la Sala Civil y Penal. Tribunal Superior de Justicia de Cataluña. Recurso de Apelación contra Sentencia Rollo de Sala 216/2023), 23 April 2024.

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Year

2024

Decision/ruling/judgment date

Tuesday, April 23, 2024

Incident(s) concerned/related

Other forms of hate speech

Related Bias motivation

Religion
Racial or ethnic origin

Groups affected

Muslims

Court/Body type

National Court

Court/Body

Catalunya High Court (Tribunal Superior de Justicia de Cataluña)

Key facts of the case

The victim, along with her three young children, boarded a bus in Barcelona on May 2020, and when one of the cards was not properly validated, she approached the driver, who yelled, "You come here to live from the story." The driver made remarks about her ethnic origin because she was dressed in Maghreb-style clothing, including a veil over her hair. The victim chose to use her cell phone to take a picture of the license plate after she and her kids got off the bus. The defendant then abruptly halted his march by exiting and yelling obscenities such "whore," "slut," "fucking Moors," or "go to your country" while gesturing to take off her head covering and taking a picture of her with his cell phone. As a result of her three children standing by her side to defend her, the defendant grabbed them by the arms and pushed them away. He even grabbed one of them by the hair and inflict minor injuries on them.

Main reasoning/argumentation

Religion ("anti-Muslim hatred") and nation ("xenophobia") are the bias motivation of the driver's discriminatory acts. The ruling emphasizes that the accused's words were not isolated and decontextualized; rather, they were part of a sequence of events that included repeated displays of contempt and a blatant attempt to physically harm the victim, which had a negative impact on the victim's three young children. The victim and her three children experienced severe humiliation and debasement as a result of the defendant's actions, which must be made up for as moral harm.

Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?

Key issues (concepts, interpretations) clarified by the case

The legal interest protected was the Human dignity as defined in Criminal Code article 510.2 a). The judgment highlighted the defendant's attempt to lift the victim's veil, which he was unable to accomplish due to the victim's response, his children's intervention, and some bystanders' denunciation. It also considered the appellant's position as a public servant, anyone with a rudimentary understanding of the subject knows that the headscarf is an obvious symbol of Muslim culture and that removing it from a woman who is Muslim and obviously of Maghreb descent is an especially offensive act. The attacks targeted national sentiments and the cultural and religious practices of those impacted took place during the exercise.

Results (sanctions, outcome) and key consequences or implications of the case

According to article 510.2 a) of the Criminal Code, it is mandated to pay 1000 euros to each person impacted by the crime. The decision dismissed the appeal against the conviction of February 20, 2023, fully upholding the Third Section of the Barcelona Provincial Court's decision to convict the defendant of violating article 510.2 a) of the Criminal Code, which relates to the exercise of public rights and freedoms. It also upheld the subsequent Order of March 7, which clarified the aforementioned judgment and found the defendant responsible for three minor crimes of injury under article 147.2 of the Criminal Code. A fine of 10 euros per day was imposed on the defendant, along with subsidiary personal liability under article 53 of the Criminal Code.

Key quotation in original language and its unofficial translation into English with reference details

… (la testigo a la que ningún interés se le supone en la causa apostilló con total claridad los tres pilares fácticos del testimonio de la víctima y sobre los que en definitiva se asienta la condena, los insultos de carácter xenófobo o racista, la agresión física y el intento de quitarle el pañuelo que portaba) "the witness who is supposed to have no interest in the case clearly stated the three factual pillars of the victim's testimony and on which the conviction is ultimately based, the insults of a xenophobic or racist nature, the physical aggression and the attempt to take away the headscarf she was wearing"

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