As the year 2023 came to a close, the legislative activity of the majority or ruling coalition continued relentlessly until its last days. This time, a significant part of the chosen topic, driven by Sumar, is an age-old issue in penal debates: offenses such as defamation against the Crown, offenses against religious sentiments, insults to national symbols, and the glorification of terrorism and acts that humiliate victims, along with insults to high State officials. All these are classified as “opinion” crimes and, theoretically, the proposal suggests the need to eliminate articles 490.3, 491, 504, 525, 543, and 578, modify articles 22 and 538 of the Penal Code, and add a new article 536 bis. In Spanish penal doctrine, many argue for the abolition of such crimes, myself included, as long as they genuinely qualify as crimes of opinion.
The common justification for all proposed reforms is that the acts penalized under these different categories are behaviors protected by the constitutional right to freedom of expression (Art. 20 of the Spanish Constitution). However, accepting this thesis requires a critical examination.
Another issue is the timing of the reform proposal, particularly during these heated days of tension surrounding the possible amnesty and other related issues. During this time, representatives of Sumar, Junts, and ERC have openly labeled certain judges as corrupt, deserving of trial and condemnation, including specific names. They have also crudely criticized the King, accusing him of insulting Catalans, merely because he emphasized the importance of respecting the Constitution as a common framework for all defenders of the Rule of Law in his Christmas message. Apparently, they expected a constitutional King to lament the existence of a single Constitution for the entire country, which they perceive as analogous to recommending a Muslim to eat pork. It seems this entire group feels protected by a broad interpretation of parliamentary immunity and freedom of expression. As for parliamentary immunity, there is generally no objection in principle. Unfortunately, the lack of manners displayed by figures like Rufián can only be corrected by the President of the Chamber, who is unlikely to do so, especially when dealing with government allies.
A separate examination is warranted for the performance of Mrs. Nogueras in Congress, openly insulting several judges, most of whom are from the Supreme Court. Their sin was applying existing criminal law to independence advocates, who, according to Junts and ERC, cannot be accused of anything simply because of their independence stance. Unfortunately, this wasn’t a crude expression of frustration protected by parliamentary immunity; it was a disqualification of the judiciary, including tacit accusations of continuous prevarication, demanding their expulsion. This can be termed an unconstitutional absurdity, but it goes further: it is a disqualification of the Spanish Judiciary because it obstructs independence projects. This is consistent with the denial of Spain as a state that respects the rights and freedoms recognized in supranational documents, setting the stage for when the issue of amnesty reaches Europe. All of this is orchestrated and staged with the shameful and agreed-upon passivity of the government and the PSOE.
The coverage derived from the fundamental right to freedom of expression and opinion naturally extends beyond what parliamentarians can express; it encompasses all Spaniards. From this unquestionable fact, it is necessary to focus on the different behaviors being decriminalized to assess if they fall under the umbrella of freedom of expression. It’s important to note, as a first step, that at no point in Spain has there been a proposal to abolish defamation offenses, arguing that they fall under the right to freedom of expression.
With that in mind, let’s examine the list of criminal offenses proposed for decriminalization. The analysis should start with some preliminary ideas.
a) The exercise of a right neutralizes the apparent unlawfulness of any conduct. Some argue, rightly so, that acts performed in the exercise of a fundamental right are outside criminal law, while others believe that they are typical actions under criminal law but “justified.” The suppression of a criminal classification implies that the excluded conduct lacks any intrinsic unlawfulness justifying its inclusion in the catalog of crimes. This decision may be accompanied by an “explanation” from the pre-legislator, as is the case this time, asserting that the acts being decriminalized are all part of freedom of expression. According to the promoters, this is about “safeguarding” freedom of expression, with no need to consider the protection of any other legal interest, such as the dignity of the offended party or the presence of other deserving respects, such as the constitutional structure of the State. None of these matters because the objective is to “shield” freedom of expression.
b) Conversely, the existence of a criminal classification means that the described conduct is, in principle, harmful to a legally relevant interest or good and of sufficient importance to warrant the classification of a crime, notwithstanding the possibility that, in some cases, a justification or exclusion of unlawfulness may apply.
Applying this framework to the evaluation of the proposed legal reform, it is necessary to analyze the behaviors considered inappropriate for criminal law, meaning they cannot be considered criminal in any case. The proposed repeals vary, but all fall under the common denominator of being expressions of opinions that should not be criminalized. It is crucial to reevaluate this notion, as the label of “opinion” cannot be derived solely from the “oral nature of the action.” Many crimes, such as defamation, threats, false accusations, or testimonies, can be committed through words alone. Therefore, the classification of an act as an “opinion” must be based on other arguments, as the Spanish Penal Code deems many acts as criminal offenses that could be characterized as “abuses of freedom of expression.”
Critics argue that it is unacceptable for the mere act of writing a text and posting it on social media to lead to a crime. Simultaneously, there is an advocacy for the need to prosecute incitement to hatred or violence, the glorification of serious crimes, or defamation. None of these acts are considered crimes of opinion, even though they may involve an opinion component from the author. Furthermore, there is no proposal for their abolition. This indicates that the crimes of opinion targeted for repeal are selective, influenced by the ideology of those making the selection and directly connected to immediate concerns. This explains the choice of crimes slated for elimination: defamation and insults against the King and his family, denigratory use of the Head of State’s image, offenses and insults against Spain or the Autonomous Communities or their symbols. There is also a proposal to eliminate the crime of glorifying and publicly justifying terrorism or those who have participated in terrorist acts or those humiliating the victims. The repeal extends to serious offenses of defamation and calumny against the Government, the General Council of the Judiciary, the Constitutional Court, the Supreme Court, or the Governments and Superior Courts of Justice of the Autonomous Communities. The decriminalization extends to the use of violence to prevent members of Congress, Senate, or Legislative Assembly of Autonomous Communities from attending their meetings or restricting their voting freedom (currently described in Article 498 of the Penal Code and will still be a crime of coercion). The catalog is completed with the abolition of offenses against a religious confession, mockery of its beliefs, or public humiliation of its practitioners, whose repeal could pave the way for offenses against moral integrity.