FREEDOM OF SPEECH

After rapper Pablo Hasél gets jail for tweets, Spain plans to end prison terms for crimes involving freedom of speech

The promised reform of the criminal code will affect cases of glorifying terrorism and offending religious sentiment, according to the Justice Ministry

A crowd protesting the High Court's decision to send rapper Pablo Hasél to prison over violent speech on social media.
A crowd protesting the High Court's decision to send rapper Pablo Hasél to prison over violent speech on social media.Rodrigo Jiménez / EFE

The imminent imprisonment of a musician to serve a sentence for praising terrorism and insulting Spanish institutions on social media has become a new source of friction within Spain’s center-left governing coalition.

In late January the rapper Pablo Hasél was ordered to report to prison to serve nine months and one day, after the Supreme Court confirmed a conviction finding him guilty of glorifying terrorism and insulting the Crown and state institutions.

After over 200 artists – including the filmmaker Pedro Almodóvar – signed a petition defending the rapper, the government on Monday announced that it is planning a reform to the criminal code that would eliminate prison terms for crimes involving freedom of expression.

The petition says that “the imprisonment of Pablo Hasél makes the sword hanging over the heads of all public figures who dare to openly criticize the actions of state institutions all the more evident. We are aware that if we allow Pablo to be jailed, tomorrow they could come after any one of us, until they have managed to stifle any whisper of dissidence.”

Twitter messages

Hásel’s conviction is based on 64 messages he published on Twitter between 2014 and 2016 and a song he shared on YouTube. In one message from March 2016, he posted a photograph of Victoria Gómez, a member of a left-wing terrorist group named GRAPO, with the message: “Demonstrations are necessary but not enough. Let us support those who took things further.”

He also accused King Felipe VI and his father Juan Carlos of several crimes, including homicide and embezzlement. He was sentenced in March 2018 to a prison term of two years and one day, but an appeals judge later reduced the sentence to nine months and one day because his messages did “not pose a real risk” to anyone. This decision was ultimately upheld by the Supreme Court in May 2020.

Before this most recent conviction, Hasél had been previously sentenced to prison on several occasions for crimes that include assaulting a journalist in 2016. In March 2015, he received another two-year prison sentence for writing and sharing songs that praised attacks carried out by terrorist groups such as the now-defunct Basque group ETA and Al-Qaeda, although he never served the jail term. This led judges to dismiss his petition to have the new prison term suspended as well. “Neither the convict’s personal circumstances, nor the nature of the facts, nor his behavior make him deserving of such a benefit,” said the High Court judges.

Legal reform

The Justice Ministry has not provided any details about its reform plans and a spokesperson said that there is no date yet for a draft document. Yet almost simultaneously, the governing coalition’s junior partner, the leftist Unidas Podemos, was completing its own “bill for the protection of freedom of expression,” which it registered in the lower house of parliament on Tuesday. According to a source in Unidas Podemos, the party informed its partner, the Socialist Party (PSOE), about this initiative on Monday afternoon.

Unidas Podemos’ proposal probably goes further than what the PSOE has in mind. The leftist group wants to eliminate several crimes altogether: insulting the Crown and state institutions, offending religious feelings, and glorifying terrorism would no longer be punishable by law.

The Justice Ministry, which is headed by Juan Carlos Campo of the PSOE, said instead that the reform would affect the crimes of glorifying terrorism and offending religious sentiment, but did not talk about repealing them outright. Instead, it noted that because they affect fundamental rights, the executive must be “especially careful with the reform proposals.”

The ministry admitted that the broad definition of these crimes “creates insecurity” and said it is difficult to determine where to draw the line between the exercise of a fundamental right such as freedom of expression and allowing criminal behavior.

In its two-paragraph statement, the government said that “the Justice Ministry will propose a review of crimes involving excesses in the exercise of freedom of expression, so that only acts that clearly create a risk to public order or encourage some kind of violent conduct will be punishable through measures that deter but do not deprive individuals of their freedom.”

The text does not expressly mention Pablo Hasél, whose real name is Pablo Rivadulla Duro, or other musicians caught up in similar legal proceedings in the recent past. But the connection is obvious. “The ministry’s proposal will consider that verbal excesses made as part of artistic, cultural or intellectual manifestations should remain outside the scope of criminal punishment,” reads the note.

Criminalizing speech

Unidas Podemos’ proposal to the Congress of Deputies on Tuesday introduces the subject by stating that several articles of Spain’s penal code are being used to “criminalize behavior such as sending messages through social media, singing rap, using an image of Jesus Christ and publishing it on social media, staging a performance to ask for equal rights for women in society, criticizing the king or drowning out the national anthem in a soccer stadium where the king and queen of Spain were present. These are articles of the penal code whose influence stems from the [Franco] dictatorship, and thus have no place in a democratic and plural system.”

The statement alludes to several cases that made media headlines in recent years, including another rapper named Valtonyc who was convicted of similar crimes, a young woman who tweeted jokes about a 1973 terrorist attack, or a religious-style street procession that featured a large representation of female genitalia instead of the usual depiction of the Virgin Mary.

Catalan election

The inner battle within the executive to lead a reform project that resonates with progressive voters is taking place as Catalonia enters the last week of campaigning ahead of a regional election on February 14. The PSOE is hoping to make significant gains in the nationalist-dominated parliament with its candidate, former health minister Salvador Illa.

The executive’s proposal is part of a broader plan to reform the Spanish criminal code that also includes a review of the crime of sedition. Such a move could end up reducing the prison terms for convicted leaders of the 2017 unilateral secession attempt in Catalonia.

English version by Susana Urra.

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