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 inherently old in the debates among legal experts: crimes of insults to the Crown, offenses against religious sentiments, insults to national symbols, and the glorification of terrorism, including acts humiliating victims, insults to high State bodies. All these are categorized as “opinion” crimes, and, theoretically, it is considered necessary 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, including myself, advocate for the abolition of such crimes, but only if they genuinely fall under the category of crimes of opinion.
The common justification for all the proposed reforms is that the acts punished by these various classifications are behaviors protected by the constitutional right to freedom of expression (Article 20 of the Constitution). However, accepting this thesis requires a minimum critical examination.
Another issue is the timing of the reform proposal, precisely during these heated days of tension surrounding the possible amnesty and other related issues. Representatives of Sumar, Junts, and ERC have openly labeled certain judges as prevaricators deserving of trial and conviction, and grossly insulted the King, whose latest major sin, according to figures like Aragonés, Junqueras, and the inevitable Puigdemont, was to insult the Catalans (referring to the independence supporters, who are not even half of them). Apparently, they expected a constitutional King to lament the existence of a single Constitution for the entire state, which is perceived in the pro-independence world as if a Muslim were recommended to eat pork. Surprisingly, they felt protected by a broad interpretation of parliamentary immunity and freedom of expression. As for parliamentary immunity, in principle, there is nothing to object to. Rudeness, as displayed by individuals like Rufián, could only be corrected by the President of the Chamber, who won’t do so because that’s what friends are for, especially if they are government supporters.
The spectacle offered by Mrs. Nogueras in Congress deserves separate examination, openly insulting several judges, most of them from the Supreme Court. Their sin was applying the existing criminal law to independence supporters, who, simply by being so, cannot be accused of anything (according to Junts and ERC). Unfortunately, this was not a crude release under the protection of parliamentary immunity but a disqualification of justice that included implicit accusations of continuous prevarication crimes, demanding their expulsion. This can be termed an unconstitutional absurdity, but it is more than that: the disqualification of the Spanish Judiciary because it interferes with independence projects. This is consistent with the denial of Spain as a state that respects the rights and freedoms recognized in supranational documents, laying the groundwork for when the issue of amnesty reaches Europe. All 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 not only to what parliamentarians can express but also to all Spaniards. From this unquestionable fact, we must focus on the different behaviors proposed for decriminalization, evaluating whether they fall under the freedom of expression and opinion. It is essential to bring the focus to the behaviors proposed for decriminalization to assess whether they all fall under freedom of expression. This analysis must begin with the recognition that the exercise of a right neutralizes the apparent unlawfulness of a behavior. Some will argue, rightly, that actions carried out in the exercise of a fundamental right are outside criminal law, while others believe that they are typical actions in criminal law but “justified.” The issue may seem trivial to the layman, but it is not. The abolition of a typification implies that the conduct excluded from the Penal Code lacks any intrinsic unlawfulness that justifies its inclusion in the catalog of crimes. This decision can be accompanied by an “explanation” from the pre-legislator, as is the case this time when it is advanced that the decriminalized acts are all part of freedom of expression, without any opposition from the need to protect any other legal interest, such as the dignity of the offended party or the presence of other respected goods, such as the constitutional structure of the state. None of this matters because, according to the promoters, the goal is to “shield” freedom of expression.
On the other hand, the existence of a typification means that the described conduct is, in principle, harmful to a legally relevant interest or good and of sufficient importance to merit the qualification of a crime, regardless of whether in some cases an exclusion of unlawfulness or a justification cause may be considered.
Translating this approach to the assessment of the proposed legal reform, it is necessary to analyze the behaviors considered that should not be in criminal law, which means that they cannot be considered criminal under any circumstances. The proposed derogations are different, but all fall under the common denominator of being expressions of opinions that cannot be criminalized. It is important to reconsider this idea since the label of “opinion” cannot be derived from the strict “orality of action,” as many crimes (slander, threats, false accusations or testimonies, disclosure of secrets, etc.) can be committed with just words. The classification of “opinion” must be derived from other