Spain / Barcelona Provincial High Court Decision, Section 10 / Rec 314/2013

Country

Spain

Title

Spain / Barcelona Provincial High Court Decision, Section 10 / Rec 314/2013

View full Case

Year

2014

Decision/ruling/judgment date

Thursday, March 20, 2014

Incident(s) concerned/related

Incitement to violence or hatred

Related Bias motivation

Nationality

Groups affected

Migrants

Court/Body type

National Court

Court/Body

Barcelona Provincial High Court Decision (Audiencia Provincial de Barcelona)

Key facts of the case

The Barcelona Provincial Court upheld a decision of Criminal Court No. 1 of Vilanova i la Geltrú July 13, 2013 convicting members of the skinhead group Association Young Worker Front of a crime of illegal association. The association website had published many photographs that reflect the Nazi ideology, rejecting immigration and multiculturalism, and blaming immigrants for taking housing and jobs away from young Spaniards. They also displayed posters with slogans against immigration and capitalism and certain videos and messages were broadcasted with its logo using songs and images that incite hatred and violence against immigrants.

Main reasoning/argumentation

It was irrelevant if all videos were or not done by association members, since the display of such images promoted discrimination, hate or violence regardless of the author´s identity.

The criteria applied for the penalty were the two years that the Association lasted and the publicity achieved, which reached a national level based on the participation on the website Forum.

The punishable conduct was the illegal association understood as an effective participation on the violation of the legally protected right under the article 510 together with the articles 515 and 517 of the CC.

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

It distinguishes between hate speech and offensive or unpopular speech.
The Art. 20 of the Spanish Constitution does not guarantee the right to express and disseminate a particular understanding of history and any perception of the world with the deliberate aim to disparage and discriminate any persons or groups on grounds of a personal condition, ethnic or social circumstances (STC 214/1991, 11 Dec.).
The Positions that underscore the Nazi genocide represent a racist incitement (STC 214/1991, 11 Nov. and 13/2001, 29 Jan.).
The Association which incites to discrimination, is not only illegal but also the one which simply promotes it (STS 12/04/2011).

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

It does confirm the condemnatory judgement of the Criminal Court No. 1 of Vilanova i la Geltrú July 13, 2013

The sentence condemned the members of the group but no the association itself:

- 2 years and 6 months in prison,
- 18 months with a 3 euros daily fee fine,
- a subsidiary responsibility of 1 day in prison for each two unpaid fees,
- no possible access and/or exercise of public position during 9 years,
- payment of the 3/14 of the legal costs.

One of the accused did just maintain contact with other members, but he also was condemned as an illegal/illicit association founder (article 517.1 of the CC), based on his signature on the Association Constitution Act.

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

“…és evident que la discriminació racial i provocació de l'odi previst en l' art. 510 CP no requereix imperativament l'existència d'una xarxa o associació , puix és un delicte que pot cometre qualsevol persona individual…”
“... ambdues normes són aplicables en els termes que recull l'art. 77 del Codi, si bé la pena privativa de llibertat a imposar serà única…”

"... it is clear that the racial discrimination and incitement to hatred in the art. 510 CC does not require necessarily of the existence of a network or association, since it is a crime that can be committed by any individual person... "
"... both rules are applicable in the terms as stated in the art. 77 of the code, while the sentence of imprisonment to be imposed only... "

Article 510 punishes those who incite discrimination, hate or violence against groups or associations, based on race, anti-Semitic or other based on ideology, religion, national origin, sex, sexual orientation, illness or disability, as well as those who, with knowledge of its falsity or reckless disregard to the truth, disseminating insulting information on groups or associations for the same reasons (ideology, religion, beliefs, etc.).

Article 515 refers to the unlawful associations and

Article 517 refers to the founders, directors, presidents, and active members of those unlawful associations.

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