Letter to the Commissioner of Human Rights of the Council of Europe

OPEN LETTER TO THE COMMISSIONNER FOR HUMAN RIGHTS OF THE COUNCIL OF EUROPE Dear Ms Commissioner, I have was and displeased to read your letter sent on March 11th to the Spanish Minister of Justice, Mr. Juan Carlos Campo, both for formal and substantive reasons. On the one hand, it is not normal that the Commissioner of Human Rights writes officially to the Government of a member State of the Council of Europe in order to criticize its Criminal Code and suggest its modification. On the other, the arguments exposed by you lack legal substance and border on insolence. I was not be satisfied either by minister Campo´s reply, full of complexes, in which he considers justifiable your unjustified criticisms. I am a humble retired ambassador –I was head of the Legal Department of the Ministry of Foreign Affairs-, who represents no one but myself, though I believe to reflect the opinion of many Spaniards in this letter. You have made strong criticisms against the Spanish courts for having supposedly restricted the rights of some Spanish delinquents to free expression and to the provisions of the Criminal Code relating to the crimes of apology of terrorism, offenses to the Crown and contempt of religious beliefs. As a private citizen, you are fully entitled to criticize the legislation of Spain and the performance of its courts, but as the person responsible for human rights in the Council of Europe, you should not do so. You have failed to fulfill your duty of neutrality and impartiality and unduly meddled in the domestic affairs of a member State of the Council. The fact that the Spanish Government has accepted meekly this interference does not exonerate you of “detournement de pouvor”, and this is why, as a simple citizen, I address this letter to you, with due respect to the institution that you represent. Personnally, I do not think that, as a citizen of Bosnia-Herzegovina –one of the six and a half republics derived from the former Federation of Yugoslavia due to the abuses of a nationalism which caused flagrant acts of genocide- you are particularly qualified, politically or morally, to teach Spaniards a lesson about democracy or the right of free expression. 1.-Freedom of expression You say that you have written to the Minister in connection with several provisions of the Spanish Criminal Code which cause a negative impact in the exercise of the freedom of expression and point out that Spanish courts have condemned artists and activists in social webs with imprisonment for the crimes of apology of terrorism and offenses to the Crown, because of the lyrics of their songs. Although you named no one, it goes beyond doubt that your refer to the rapper Pablo Hasel, whom the “Audiencia Nacional” condemned in 2014 to two years in jail. You are free to consider as an artist a bad musician, a worse song-composer and a humanly despicable person, who said in his tweets that Patxi López deserved to have his car blown-up, that leaving the journalist Federico Jiménez Losantos alive was a mistake, that someone should stick an axe in José Bono´s head, that he dreamed the bullets which reached the napes of fascist judges, that he would shoot Rodríguez Zapatero, that it was unacceptable to consider as criminal the people of GRAPO and condemn them to thirty years imprisonment for giving their lives to fight against a genocide State, that king Juan Carlos was a “mafiossi” and a shit, that the police killed, tortured and caused injuries to innocent people, that… As the Audiencia pointed out, it was not a question of expressing a mere opinion, but of delivering a message clearly inciting to follow the behavior of the members of GRAPO or ETA, praising violent and terrorist activities and extolling armed violence. It was sufficient to provoke abstract risks to consummate the crime of encouragement for terrorism. But, in some Hasel´s comments, the abstract became concrete. Let us remember, for instance, that president López had been threatened with death at a time of extteme terrorist pressure in the Basque Country and that Losantos was abandoned in the mountains after having been shot in the legs by the Catalonian terrorists of “Terra lliure”. With respect to the King, Hasel neither made any political claim, nor demanded a change of regime to replace the Monarchy for a Republic, but he slandered and insulted the King and defamed the royal family. Hasel´s words did not fall under the scope of freedom of expression because –as the court stated- “it was latent in them a hate speech”. The progressive judge, Manuela Fernández Prado cast a dissenting vote because she considered that -though acid, exacerbated and unfair- Hasel´s criticisms were protected by the freedom of expression, and the accusations made against King Juan Carlos and the police were not slanderous. It seems that you share the judge´s opinion, what is acceptable since the right is not an exact science and allows various interpretations, although it is more than clear that Hasel is not a martyr of the freedom of expression. Hasel´s penalty was suspended on condition that he did not repeat his offense, but he relapsed in the same crime and the Court condemned him to two additional years imprisonment, which was later reduced to nine months. . He appealed the sentence and the Supreme Court confirmed the sentence since he could not be covered by the freedom of expression, because ha had sent various messages praising terrorist organizations and their still active members, and he was a backslider. In addition, this peaceful character was condemned by various courts for false testimony, obstruction to justice, resistance to authorities, housebreaking, threats to a witness and injuries to a journalist, sentences that he has appealed and are pending the the Supreme Court´s decision. Hasel is a jewel, Ms. Mijatovic. The Court decided to imprison him, not for his apology of terrorism or his slanders to the King –such crimes deserve a fine, but not imprisonment-, but for being recidivist and breaking his status of conditional freedom. Under the pretext of the supposed injustice inflicted on Hasel, there were numerous protest marches in the whole of Spain, especially in Catalonia, where commandos of Italian anarchists joined the anti-establishment and separatists of the CDR and the CUP. Do you believe that to close streets and roads, destroy public and private property, sack shops, attack de police and burn their cars –with policemen inside them- form part of the right of free expression? If you were called XXX –place here the worse insults-, if someone said that your head should be struck with an axe or your car blown-up, and if your house was assaulted and burnt, would you consider these actions as a democratic exercise of the freedom of expression? To state that the king Felipe VI is corrupt or that the Bourbon family deserve the guillotine is an exercise of the freedom of expression, but to say that Franco did something well is a crime against humanity? According to the 1996 International Covenant on Civil and Political Rights, everyone, orally or in writing, has the right to freedom of expression, which includes freedom to seek, receive and impart information and ideas of all kind, regardless of frontiers, either orally, in writing or through any other media of his choice. The exercise of this right carries with it specialobligations and responsibilities and may therefore be subject to certain restrictions as provided by law and are necessary “for respect of the rights or reputation of others” (article 19). Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law (article 20) Similar provisions were already included in the 1978 Spanish Constitution. Human dignity, the inviolable and inherent rights, the development of the personality, the respect for the law and for the rights of others are the foundation of political order and social peace (article 10). The right to freely express and disseminate thoughts, ideas and opinions through words, in writing or by any other means of communication is recognized and protected. These freedoms are limited by respect of the rights recognized in the Constitution, in the laws and especially by the right to honor, to privacy and to personal reputation (article 20) You are a fundamentalist of the freedom of expression, to which you give an absolute value, since it prevails over any other right, but such freedom cannot be full because it is limited by the rights of others. If there is a conflict among rights, the law and the judges should determine which of them prevails according to the circumstances. . Freedom of expression is sufficiently regulated by the Spanish legislation and its exercise duly guaranteed. There have been various cases –such as those of Casandra, the singer od Def Con Dos or many artists and actors who have jeered at Christians and their beliefs, in which the persons accused have been absolved by the courts. The case of Hasel –and that of Valtoncyk a few years earlier- exceeded the limit of what is tolerable for their flagrant violation of legitimate rights of the citizen –from the King to any other person-, and both of them ended in jail in full justice. If you are so worried for the safeguard of the freedom of expression in the member States of the Council of Europe, I suppose that you have sent a recriminatory letter to the Minister of Justice of the Federation of Russia, where –I can assure you- the existing :situation is much worse than in Spain: inexistence of a democratic opposition, lack of separation of powers and of judicial independence, imprisonment of protesters, activists, journalists, homosexuals… 2.-Apology of terrorism According to the Spanish Criminal Code, the apology or the justification of terrorism by means of public expression or diffusion of the crime, or of anybody who has participates in its commission thereof or perpetrating acts that involve discredit, disdain or humiliation of the victims of terrorist offenses or their relatives shall be punish with a penalty of imprisonment from one to two years (article 578). It seems that this provision does not please you, since you propose its modification, because its ambiguous and imprecise formulation becomes problematic, because, due to the lack of precision in the definition of some of its terms creates legal incertitude and generates various and, at times, contradictory interpretations by the courts, some of which do not reach international standards regarding freedom of expression. Already in 2018, you highlighted the misuse which was made of antiterrorist legislation and that an inappropriate definition of the crime of terrorism may lead to unnecessary and disproportionate restrictions to the right of freedom of expression, which should be proportionate and very limited. You have pointed out that some decisions of Spanish judges had not adequately determined whether the conduct by the accused persons of the apology of terrorism implied a risk of real, concrete and imminent danger. Against the jurisprudence of the ECHR, some courts have interpreted that the intention of the perpetrator in abstract is sufficient, taking into account only the literal formulation of the provision, without properly considering the context of the declarations incriminated or its aftermath. The antiterrorist legislation should be applied only to declarations and to activities which imply, necessarily and directly, the use or the threat of the use of violence with the purpose of expanding fear or provoking terror. Declarations or activities of any kind –however disturbing or chilling they may be- should fall under the scope of the obligations and responsibilities derived from the exercise of the right of freedom of expression, in accordance with article 10-2 of the 1950 European Convention for the Protection of Human Rights; that is, when they are necessary for the defense of national security, territorial integrity and public order, , crime prevention, the protection of the health, morality, reputation or the rights of others, or the safeguard of the authority and impartiality of the judicial power. What you describe as apology of terrorism is terrorism “tout court”. There is apology even when no violence or threat of violence has been produced, being sufficient the incitement of its production. Thus, there is apology of terrorism when members of the security forces –and their partners- are attacked, called “txacurras” –dogs- or threatened in order to force them to leave the Basque Country, when public acts of homage take placer to honor members of ETA leaving their prisons, when ETA´s convicts benefit from penitentiary advantages not due to them because they are nor repentant of their crimes or do nor cooperate with the Justice, when people cry “ETA, kill them “or exercise pressure on non-nationalists to prevent them to submit their candidacy for elections in the small villages ruled by BILDU, the inheritors of ETA. The worst is that the present Government condones these facts, whitewashes the pro-ETA members of BILDU, and considers them as respectable allies as the members of any other democratic party, despite having traces of innocent blood on their hands.. Article 578 is perfectly in keeping with the law and , instead of being modified, should be reinforced and fully applied. 3.-Offenses against the Crown and the institutions of the State In accordance with the Spanish Criminal Code, those who slander or defame the King or his direct relations –outside their official duties- or use their image in any way that may damage the prestige of the Crown shall be punished with the penalty of a fine from four to twenty months (article 491). A fine of from twelve to twenty months shall be incurred by those who slander, defame or threaten the Government of the Nation or of the Autonomous Communities, the Parliament or the Regional Assemblies, the General Council of the Judiciary, the Constitutional Court, the Supreme Court or the Governing Council of the High Courts of Justice of the Autonomous communities, the Armed Forces, the Police or the Security Forces (article 504). Defamation is the action or expression that harms the dignity of another person, detracting from his reputation or attacking his self-esteem (article 208). The 1948 Universal Declaration of Human Rights establishes that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor or reputation. Anyone has the right to the protection of the law against such interferences or attacks (article 12). The 1996 International Covenant on Civil and Political Rights contains similar provisions (article 17) and the Spanish Constitution also guarantees the right to honor, to personal and family privacy, and to its own image (article 18). How can those rights be guaranteed? Simply by adopting legal measures to protect against slander and defamation, as Spain and other members of the Council of Europe have done. It seems that the Spanish norms to protect the honor and the reputation of the Crown and of the executive, legislative and judicial organs of the State bother you and that is why you propose to change them. You stress with special satisfaction that, in 2018, the ECHR invalidated a sentence of the Spanish Supreme Court, which indorsed the penalty applied by the Audiencia Nacional to Jaume Roura and Enric Stern f or having publicly burnt the effigy of the King in Girona in 2007. The European Court stated that a sentence depriving a person of freedom for the commission of an offense as the result of a political debate would be compatible with the freedom of expression only in exceptional circumstances, when the speech incited to violence or constituted a hate-speech. Was not that what Veltoncyk and Hasel did with their attacks defaming the King and the highest authorities in the State? In which political debate have these crazy people participated? You maintain that criticising personalities and high authorities –however provocative or radical may be- cannot be be considered as a hate-speech or of incitement to violence , and have shown your concern for the interpretation of the concept of “hate-speech” which has been made by some Spanish courts, which implied an unnecessary and disproportionate restriction of the freedom of expression. In your view, it is essential to limit the restrictions to the cases prohibited by by the international rules on human rights, according to which the hate expression should be based only in xenophobia, antisemitism and other forms of intolerance, hostility or violence. Don´t you include among them the fatal effects of radical nationalisms? It is incredible that a citizen from Bosnia-Herzegovina seems to forget or overlook the terrible aftermath of this type of nationalism in former Yugoslavia. You have stated that the limits to criticisms which may be addressed to politicians, authorities and public officers should be wider than those addressed to normal citizen, an generate a higher degree of tolerance toward its authors. In the Spanish parliamentary democracy, however, the King is not a politician, but Head of the State, “the symbol of its unity and permanence” (article 56 of the Constitution). He has no executive powers and his acts should always be countersigned by the Government. Therefore, he is vulnerable and defenseless and requires more –rather than less- protection. The Government not only does not offer him adequate protection –as should be the case-, but from its inside- vice-president Pablo Iglesias and the ministers members of Podemos have publicly and repeatedly stated that their aim is to abolish de monarchy and establish the III Republic, and have continually defamed the King. Can you imagine what would happen if some activists burnt an effigy of Vladimir Putin in the Red Square of Moscow? I can, because I have been ambassador in Russia and know well the old soviet rocker. They would be sent for some time to a penitentiary asylum in the tundra of Siberia to keep company with Alexei Navalny, if they were not poisoned on their way.. Do you have any criticism to make in this respect? You have suggested to the Spanish Government not to penalize the offense of slander to the King and the authorities of the State, and remarked that such a modification would strengthen the safeguards of the right of free expression and make the tasks of the Spanish courts easier in order to allow them to take their decisions in accordance with the provisions of the 1950 Rome Convention. “Contrario sensu”, this means that the legislation of Spain does not –in your opinion- cover sufficiently the freedom of expression and that its courts do not comply with the provisions of the said Convention. Don´t you go too far with these assertions or intimations given your position as Commissioner of Human Rights? It could be considered an attenuating circumstance in your attitude, the fact that the vice-president of the Government Iglesias shares the opinion of the minister of Foreign Affair of Russia, Sergei Lavrov, that Spain is not a full democracy, because she has political prisoners and persons in exile because of their ideas, and that Navalny´s situation is similar to that of the imprisoned Catalonian leaders, which provoked the reaction of his Spanish colleague, Arancha González Laya, who stated that Spain was in all the rankings among the twenty democracies in the world, whereas Russia occupied the 124th position. Have you written any letter to Mr. Lavrov in order to ask him about the situation of Navalny and of the numerous activists and journalists in Russian prisons? Are you in favor that Spain modifies her laws to allow the foul-mouthed rappers to slander the King and the high Spanish authorities with impunity? 4.-Offenses to religious feelings and beliefs According to the Spanish Criminal Code, whoever, in order to offend the religious feelings of the members of a religious confession publicly disparage their dogmas, beliefs, rites or ceremonies in public, verbally or by writing, or insult -also publicly- those who profess or practice these shall incur in the penalty of fine from eighth to twelve months (article 525). You have proposed to depenalize this offense because it may result in an excessive limitation of the freedom of expression or prevent a plural debate. You have reminded us that the ECHR stated that religious groups should tolerate for other persons to refuse their beliefs, provided they do not promote religious hate or intolerance. But this is just what the enemies of Christianity intend to do, as is shown with the destruction of crosses and other religious symbols in Spain by mayors belonging to Podemos or the PSOE, under the shelter of the pitiful Law of Historical Memory and the amount of exhibitions of so-called artist who sneers at Jesus Christ or the Virgin Mary. You have pointed out that the mere fact hat these conducts may be punished by criminal law has a dissuasive effect on the exercise of the freedom of expression. The depenalization of these offenses will –in your view- strengthen the safeguards for the freedom of expression and make the work of the courts easier. You are right in this last assertion because, if the crime is deleted, the judges will have no work to do in this respect, since –according to the Castillian saying- “once the dog has died, the rabies is over”. Do you intend to send a letter to the authorities of Turkey, Albania or Azerbaiyan to ask them to depenalize the offense of slander to Islam or to the prophet Mohamed? The Turkish president, Tayip Erdogan –the one who said that “the mosques are our barracks, the minarets our bayonets, the domes our helmets and the believers our soldiers”- has just denounced the 2011 Istambul Convention Preventing and Combating Violence against Women, and Turkey holds the record of imprisoned journalists.. I think that you will not dare to do such a thing and I understand your attitude, because -unlike the Christians who offer the other cheek after a slap in the face in accordance with the Gospel- the Moslems prefer to resort to the “yihad”, as has been suffered by the cartoonists of “Charlie-Hebdo” or by professor Samuel Paty. There is no reason for either being scared by Islamic threats, or overdo Christian meekness. Article 525 should be applied and not modified. 5.-Modification of the Criminal Code On February 8th, one party of Pedro Sánchez´s Government announced its intention to revise, and eventually modify, the way to deal with most chilling provisions of the Criminal Code concerning freedom of expression. Their goal was to clearly define the type of conducts to be punished and to adequate penalties to the seriousness of the offense. At the same time, the other part of the Government represented by Iglesias submitted a proposal of modification consisting in depenalizing the provisions related to apology of terrorism, slander against the King and the authorities of the State and offenses to the religious feelings. In his reply, minister Campo has stated that the Spanish Government shared the concerns shown by you in your letter and was in tune with them. Therefore, it was preparing the reform of the Code in order to prevent any negative impact on the exercise by persons of their rights of free expression., because opinions –however hideous or despicable may be- should not be considered as crimes. It was necessary to find a balance between such a freedom and the rights of citizen and communities to defend themselves from slander. I agree with your view that we have to find a proper balance between the rights of one and the other, but this does not necessarily imply the depenalization of hate crimes, because both the international norms and the Spanish legislation recognize the rights of all citizens to the respect of their honor and their privacy, and –in the case of terrorism- it is fair to punish its apology or justification, and that the rights of the victims be safeguarded. The freedom of expression is fully guaranteed in Spain and –unlike you- I do not agree that it is necessary to dismantle the existing legislation. At the most, some of the imprisonment penalties may be eliminated or replaced by fines. I beg you, Ms. Commissioner, that, as the highest authority responsible for human rights in the Council of Europe, you defend all of them, and not only a few, and do so in all countries, and not only in some of them. Yours faithfully José Antonio de Yturriaga Ph.D. Ambassador of Spain Professor of Diplomatic Law