Spain, Provincial Court of Madrid, Fifth Section (Audiencia Provincial de Madrid, Sección Quinta) Judgment No. 98/2022, Nº of Appeal: 1357/2020 (Sentencia núm. 98/2022, Nº Recurso: 1357/2020), 12 December 2022 (SAP M 18461/2022 - ECLI:ES:APM:2022:1846

Country

Spain

Title

Spain, Provincial Court of Madrid, Fifth Section (Audiencia Provincial de Madrid, Sección Quinta) Judgment No. 98/2022, Nº of Appeal: 1357/2020 (Sentencia núm. 98/2022, Nº Recurso: 1357/2020), 12 December 2022 (SAP M 18461/2022 - ECLI:ES:APM:2022:18461)

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Year

2022

Decision/ruling/judgment date

Monday, December 12, 2022

Incident(s) concerned/related

Incitement to violence or hatred

Related Bias motivation

Race/Ethnicity
migrant status, religion

Groups affected

Muslims

Court/Body type

National Court

Court/Body

Provincial Court of Madrid, Fifth Section (Audiencia Provincial de Madrid, Sección Quinta)

Key facts of the case

The Court has acquitted the leader of Hogar Social Madrid and other members of this far-right collective accused of a crime of incitement to hatred and public disorder for the organization and participation in a protest against radical Islamism in front of the Mosque of the M-30 in Madrid on March 22, 2016, the date on which the terrorist attacks took place at Brussels. In addition to appearing in front of the Mosque, the organization’s members placed a banner with the association’s emblem. The image of a mosque is crossed out with two phrases: Today Brussels, tomorrow Madrid. During the protest, they made a video and several photographs published that same day on the association's Twitter account "@HogarSocial_Mad" with the following statement: "Action carried out against radical Islamism in the Mosque of the M30 #TerroristasWelcome". During the following days, the association continued to make publications and statements in the media where they explained that the reason for acting in front of the mosque was that the National Court was investigating a possible Islamist cell that financed jihadists in the context of the activity of the Islamic Cultural Center of Madrid.

Main reasoning/argumentation

The Court has assured that it has not been proven that the action and the publications made by Hogar Social had the objective of provoking some of the comments that after the publication of Hogar Social Madrid was produced in the social networks of Islamophobic, Hispanophobic, anti-fascist, anti-communist, anti-Catholic and anti-American character. The Court states these comments are "an accumulation of heated and uncontrolled conversations between people who come to insult each other with offenses both to Islam and Catholicism but also against communism and fascism.” For the prosecution, however, this action provoked hundreds of Islamophobic comments and requested three years in prison, understanding that, as a whole, the global action of protest supported "a discourse of hatred" and therefore qualified the conduct as a crime of incitement to hatred provided for and punishable under Articles 510.1.a) and 510.3 of the Penal Code. Also, the private prosecution, the Spanish Network of Immigration and Refugee Aid, has qualified the facts in this way, adding the crime of public disorder of Article 557 of the Penal Code.

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

In the opinion of the Court, the fact that the motive of the protest was based on the facts proven in the Judgment of the National Court 25/2016 of September 28, 2016, where it is related that the Cultural Center of the M.30 Mosque was the meeting place of those accused of collecting money, makes it clear that the action in front of the Mosque of the M-30 was aimed at protesting the terrorist attacks committed in Brussels on the occasion of the information about the possible financing of jihadist elements in the same, and in no way to provoke, directly or indirectly, feelings of hatred, violence, or discrimination against Muslims. The Court considers clear that the action in front of the Mosque of the M-30 was aimed at protesting the terrorist attacks committed in Brussels and that the action was not intended to provoke, directly or indirectly, feelings of hatred, violence, or discrimination against Muslims. The Court admits that the motivation for meeting in front of the Mosque is based on the fact that the Cultural Center of the M.30 Mosque could be financing jihadist elements, as stated in the Judgment of the National Court 25/2016 of September 28, 2016. Moreover, according to the Court, the reading of the comments posted on social networks shows that they are an accumulation of "heated and uncontrolled" conversations between people who come to insult each other with offenses both to Islam and Catholicism but also against communism and fascism when some of them qualify as such to other interlocutors, which we understand that these are opinions that their participants publish as they are responding to each other that escapes with the protest of the defendants.

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

The court acquits the leader of the group Hogar Social Madrid and 11 other members of the crimes of incitement to hatred and public disorder. The Court also agrees to declare 50% of the court costs; the other 50% is imposed on the Spanish Network for Immigration and Refugee Aid. This sentence can be appealed to the Civil and Criminal Chamber of the Madrid High Court of Justice. The Prosecutor's Office has filed an appeal requesting the nullity of this sentence, and in the event that this request is not accepted, asks for three years in prison and a fine of 3,000 euros for the spokeswoman of the Hogar Social Madrid organization as the author of a crime of incitement to hatred.

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

“Pero es que además y por los que a los comentarios colgados en las redes sociales (folios 295 a 426) base de las acusaciones para sustentar la comisión del delito de incitación al odio, resulta que tras su lectura se comprueba que se trata de un cúmulo de conversaciones "acaloradas y descontroladas" entre personas que se llegan a insultar entre sí con ofensas tanto al Islam como al Catolicismo pero también en contra del comunismo y del fascismo, cuando alguno de ellos califica de tal a otros interlocutores, que entendemos que se trata de opiniones que sus participantes publican a media que se van respondiendo unos a los otros que se escapa con la protesta de los acusados”. Fundamentos de Derecho, sexto. "But it is that in addition and for the comments posted on social networks (folios 295 to 426) based on the accusations to support the commission of the crime of incitement to hatred, it turns out that after reading them, it is found that it is an accumulation of "heated and uncontrolled" conversations between people who come to insult each other with offenses both to Islam and Catholicism but also against communism and fascism, when some of them describe other interlocutors as such, which we understand to be opinions that their participants publish as they respond to each other, which escapes with the protest of the defendants.” Law basis, Sixth.

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