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ARE WE PUNISHING DEMOCRACY? The Supreme Court and the Constitutional Court speak...

The crime of incitement to hatred / the fundamental right to freedom of expression.

We are nowadays going through convulsed times and it is necessary to know how to measure our words in order not to commit any crime. Also the safeguard of our Democracy, allowing and exercising the right to freedom of expression is mandatory. Some people commonly call it respect.

Freedom of expression

Today we bring you a ruling that is not really a brand-new one, but one that was much debated in the current affairs circles at the end of 2020, when the Supreme Court determined that a member of the Spanish Congress could say certain expressions alluding to his freedom of expression, insofar as the requirements of the criminal offence were not met. Moreover, it brought up the 2016 Constitutional Court ruling that limited the punishment of freedom of expression.

What is a crime of incitement to hatred?

First of all, let us have a glance on the meaning of CRIME OF HATE, of art. 510.1.

- The basic type punishes three criminal conducts:

  1. Encouraging, stirring up or inciting hatred, hostility, discrimination or violence against certain groups.

  2. Producing, elaborating or possessing with the aim of distributing, facilitating access, distribution, dissemination or sale to third parties, material inciting, directly or indirectly, hatred, hostility, discrimination or violence.

  3. Denial or enhancement favouring a climate of hatred, hostility, discrimination or violence.

The LEGAL PROPERTY PROTECTED is the correct exercise of fundamental political rights, i.e. FREEDOM OF EXPRESSION (among them).

What is the judicial function

The JUDICIAL FUNCTION will therefore be to assess, on a case-by-case basis, the ideas expressed, the circumstances, the legitimate exercise of that right, or its misuse, and the protection of the dignity of the persons to whom they refer. Therefore, in each case it will be necessary to study whether or not the right to freedom is violated, or whether it transcends the criminal sphere.

Finally yet importantly, we would like to conclude with the literal text of the Supreme Court when its ruling states:

According to our previous report, "the existence of this danger depends both on the content of what is disseminated and on the way in which it is disseminated, without overlooking the society or social sphere to which the questioned expressions are addressed”. It is not a question of requiring the concurrence of a context of crisis in which legal assets were already in danger, additionally increased by the questioned conduct, but of examining the potential of the conduct to create danger, and in today's Spanish society - more than 80 years after the events - there is already a clear reject of it".

We should not punish Democracy with new crimes, but respect other people's ideas. That is why we call for consensus and social peace, in spite of the current circumstances. In fact, the law is there to be complied with, as the Anglo-Saxons A.D. used to say "rule of law".

Let us learn to differentiate between rights and crimes, Carrillo Asesores. Insights.

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