Sara Rocío López Sosa

University of Las Palmas de Gran Canaria

In recent years, there have been several Spanish law cases in which freedom of expression has been questioned. On 6th of November 2018, the Court of Appeal of Ghent (Belgium) decided to postpone its decision. It is caused by a singer who is in the exile for has sentenced to three years and a half in prison for crimes as glorification and humiliations of victims of terrorism, insults to the King and deaths treats to one politician.

After he escaped to Belgium, Josep Miguel, better known as Valtònyc has sued Spain in the European Court of Humans Rights for breach of freedom of expression, which is proclaimed in Human Rights Convention (article 10) and the Spanish Constitution (article 20).

On February 2018, the singer had been condemned by the Supreme Court (Sentence nº 79/2018 ) for crimes as insults to the previous King (article 490.3 of Criminal Spanish Code), glorification and humiliations of victims of terrorism (articles 578 and 579) and non-conditioned treats (article 169.3). The crimes were seen in a disc from 2012 and 2013 titled: “MICROGLICERINA” where there were phrases like: “Pelayo deserves a power of destruction and death”, “Be fear as a Spanish policeman in Euskadi”, “I want to tell to Spaniards one hopefully message, ETA is a big nation”, “the king has a date in the main square, the rope on his neck and have to bear the consequences”, etc.

On 23rd of May 2018, before he had gone into prison, he decided to run after “terror lyrics” prison sentence under words as: “Tomorrow is the day. Disobedience is legitimate and a duty. Here, no one surrenders”.

On September 2018 a Belgian court ruled that the rapper should not be sent back to Spain, and the judge also discarded all three charges. Josep’s lawyer said that “there is no terrorism involved, there is no incitement of terrorism, so there is no question of a crime according to a Belgian law”, and the singer has told to reporters that he felt good and happy, but he has said that “I am sad for the people in Spain, who unlucky, they don’t have justice like me here”.

The singer also told that “the judge said that royalty had to be exposed to critics and that the insults can be interpreted different to the song”. The rapper thinks that Spanish courts are applying a justice similar than the thought during the Franco’s dictatorship, in other words, Spain has limited the freedom of expression.

On 6th of November 2018, the Appel Court of Ghent decided to delay it, it decided to consult first to the European Court of Justice about the sentence, because these crimes are not typified in Belgium, so without the principle of double criminality, the European Arrest Warren cannot be effective. The Appel Court of Ghent have delayed the case until 22nd of January 2019 but they have to wait to the Court of Justice’s answer, so probably it could be delated any longer.

The Spanish constitutional case law has declared the right to freedom of expression, as an assurance to the formations and existence of a public opinion, which is one of the cornerstones to a free and democratic society, understanding the freedom of the word and openly criticized, although this can disturb the State or an important section of the population. However, the settled case-law of the Spanish Constitutional Court have pointed the limits of the freedom of expression, like that expressions of hatred and violence, discrimination against minorities, etc.

Moreover, the Council of Europe Convention on the Prevention of Terrorism, on 16th of may 2005 in Warsaw, in the article 5.1 set: “public provocation to commit a terrorist offence means the distribution, or otherwise making available of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or much more such offences may be committed”.

In addition to the insults to the King, case law has solved that although the King occupies a neutral position in the political debate, as arbitrate and as a symbol of national unity, it does not mean he cannot be criticized in the exercise of all his functions as representative of Spain. The European Court of Human Rights has testified that when ideas which hurt are showed it is when the freedom of expression has to be specified (Stern and Roura vs Spain nº51168/15 and 51186/15).

Finally, about the non-conditional treats, it does not require a specified intent different of the willful intent, it is enough with who speaks know the intimidating content of his expression and the suitability to produce fear or downfall in another person.

However, the doubt about the Ghent appellation revolve around if the Supreme Court applied to Valtònyc the right punishment in the glorification and humiliation to the terrorism victims, because the songs are from 2012 when the Spanish justice contemplated a lighter penalty to these crimes.

If the negative to his delivery is firm, he shall stay some years in Belgium till the expiration of the penalty to return to Spain. Meanwhile he is working as a computer programmer and continues with his music career. It is remarkable that Valtònyc is ligated to Catalan independence movement from which he is receiving economic support, what it is more, he shares lawyers with the last president of the Generalitat (Carles Puigdemont) and another fugitive.

This is not the first time that Spain is warned for infringe the article 10 of European Rights Convention, the plaintiffs Enric Stern Taulats and Jaume Roura Capellera, they went to this Court in 2015 for being punished in 2008 for the National Audition (ECtHR nº51168/15 and 51186/15).

The claimants driven by the visit of the King of Juan Carlos to Girona, they put a kings’ image upside down during a clustering in the main square, then they burnt it in front of media.

The European Court of Human Rights emphasize that the article 10 of the Convention, remember the tolerance and the respect to freedom of dignity of every human bean which constitute the basis of a democratic and plural society.  In addition to this, the Court told that it is not an attack against the king as person, but it is to him as a Spanish symbol, so it can be observed as a simple provocation to call the media attention.

This court have considered also that the freedom of expression applies to expressions which hurt, offend or importune: so, the pluralism, the tolerance and the spirit of openness without there is not exist a democratic society, and it is convenient to consider this act as a reaction against the Spanish criminal punishment (ECtHR nº51168/15 and 51186/15).

To conclude, although the freedom of expression is a fundamental right, sometimes it can be really problematic with its limitations, even they can be conflictive. Moreover, we find the Manuela Fernandez’s words in an Appellation Court in another case of a singer who was punished for insults to the king: We have to consider that, although a song can infringe the law, the limits are to be more flexible “the provocation, ambiguity, the critic is tolerated because it is about an art representation where the fiction can play”.