Case Summary and Outcome

The European Court of Human Rights held that a Spanish rapper’s criminal conviction for glorifying terrorism, slander against the Head of State and insulting the State institutions did not violate his right to freedom of expression. The rapper had been given a fine and custodial sentence for writing several insulting tweets and a defaming rap song about King Emeritus Juan Carlos I of Spain. After applying its “incitement to violence” doctrine and considering related case law, the Court declared that the national courts’ financial and imprisonment sentences were not a disproportionate limitation of Article 10 European Convention of Human Rights (the right to freedom of expression).

Facts

On August 26, 2016, a Spanish rapper, Pablo Rivadulla Duró, better known under his stage name “Pablo Hasél”, posted a video on YouTube. The video was titled “Pablo Hasél,,,, Juan Carlos el Bobón” –“el Bobón” meaning “the Idiot” but being a wordplay on “Borbón”, the Spanish royal family’s surname. In the song, Duró accuses King Emeritus Juan Carlos I of being a drunkard, mafia boss, thief and frequent visitor of prostitutes, and of conniving with the Saudi monarchs, of murdering his brother and squandering public money. Between 2015 and 2016 Duró also wrote 19 tweets in which he attacked the King Emeritus and the monarchy in general by referring to the royal family as “parasites”, “enemies of the people” or “mafia-like and medieval”, and 11 tweets in which he showed support for convicted members of the terrorist group GRAPO (“Antifascist Resistance Group October First”). In one of his tweets he said “Demonstrations are necessary, but not enough, let’s support those who have gone further.” A third set of tweets, written between 2014 and 2016, concerned the Spanish police and security forces where Duró criticized some controversial cases of police brutality and claimed that the police were torturers, murders, Nazis, racists and “enemies of democracy”.

On March 2, 2018, Duró was convicted by the Audiencia Nacional (AN) (case number SAN 27/2018) for the publication of the tweets and the rap video. His conviction included three distinct expression crimes. First, he was convicted of glorification of terrorism under Article 578 of the Spanish Penal Code, for which the AN sentenced him to two years imprisonment and imposed a fine of 13,500 euros. His tweets were not considered mere opinion but a message that “clearly contains an invitation to emulate [GRAPO’s] actions, through short violent and terrorist activity” and were thus “a danger to the constitutional order and social peace to the people”. [para. 7] Second, he was found guilty of slander against the Crown under Article 491 of the Spanish Penal Code, for which he was ordered to pay a fine of 10,800 euros. The AN did not consider Duró’s tweets political criticism, finding that they only served to “insult and belittl[e] the monarchy” and to “adopt a position contrary to [the monarchy], even in a violent matter.” [para. 9] Third, Duró was convicted of insulting the State Institutions under Article 504.2 of the Spanish Penal Code, for which he was fined 13,500 euros. Here, the AN invoked the hate speech doctrine and considered Duró’s speech illegal because he had not given further proof of his accusation of torture and murder and had aimed for “provoking a violent response […] against […] State institutions” by making “them appear as murderers, prompting their social rejection”. [para. 10]

On September 14, 2018, the Appellate Chamber of the Audiencia Naciona (case number SAN 3337/2018) reduced Duró’s sentence for the glorification of terrorism to a fine of 5,040 euros and nine months of imprisonment, but his punishment for the other two expression crimes remained the same.

On May 7, 2020, the Supreme Court dismissed Duró’s appeal (STS 1298/2020), finding that “the exercise of freedom of expression and opinion was subject to other constitutional rights and requirements”. [para. 13]

As a last recourse, Duró appealed to the Spanish Constitutional Court, who rejected his amparo appeal. Because he already had a previous conviction for the glorification of terrorism, his suspended sentence was raised which led to his imprisonment.

The implementation of Duró’s imprisonment led to an outcry and violent protests across different Spanish cities (see here or here).

Since all internal legal remedies were exhausted, Pablo Hasél turned to the European Court of Human Rights (ECtHR).

Article 10 of the European Convention on Human Rights states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Decision Overview

The three-judge bench of the European Court of Human Rights delivered a unanimous decision. The central issue for the Court’s determination was whether Duró’s rights to freedom of expression had been unjustifiably infringed by his criminal conviction and imprisonment.

The Court accepted that there had been an interference with Article 10, but that the interference had been prescribed by law, in terms of Article 491, 504.2 and 578 of the Penal Code, and that it “pursued a legitimate aim, namely national security and public safety”. It therefore had to determine whether the interference was proportionate, or “necessary in a democratic society” in respect of all three crimes.

On the conviction of glorification of terrorism, the Court applied its “incitement to violence” doctrine which has three factors to consider: “regarding statements that may constitute a call to violence: […] (i) whether the statements were made against a tense political or social background; (ii) whether the statements […] could be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance; and (iii) the manner in which the statements were made, and their capacity – direct or indirect – to lead to harmful consequences.” [para. 32] The Court referenced its cases of Jorge Lopez v. Spain, Perinçek v. Switzerland, and Erkizia Almandoz v. Spain. Regarding the first criteria, the Court stated that the violent terrorist attacks by GRAPO had happened not so long ago and were “therefore still fresh in the country’s collective mind”. [para. 34] For the second test, the Court noted that Duró’s tweets “communicated the general idea that recourse to violence and terrorism was justified” and therefore went “far beyond what could be perceived as protest messages [or] beyond the acceptable limits of criticism”. [para. 35] On the third and last criteria, the Court put special emphasis on the fact that Duró’s tweets were “targeted at young people, and that they had been conveyed to a wide audience through Twitter.” [para. 36] The Court found “a clear precedent for the present case”, in Jorge Lopez v. Spain where the Court dismissed another Spanish rapper’s free speech complaint and the Court did not consider the rapper’s conviction to a prison sentence for justifying terrorism contrary to the spirit of Article 10. [para. 28] Accordingly, the Court applied the same reasoning and dismissed Duró’s claim that his right to freedom of expression had been infringed by the Spanish courts’ conviction for glorification of terrorism.

Regarding Duró’s conviction for slander against the Crown, the Court also referred to a similar case, Mondragon v. Spain. In Mondragon, a political representative had been sentenced to one year imprisonment for slander against the Crown for calling the King Emeritus “in charge of the torturers” [referring to the police forces] at a press conference. The Court had held this penal sanction a disproportionate breach of the right to freedom of expression. In the present case, however, the Court distinguished the two cases, noting that “the circumstances are different, thus leading to a different conclusion”. [para. 47] The Court identified that the capacity of the speaker was different – Mondragon was a political representative, whereas Duró was a singer – and that Mondragon had made his statement orally at a press conference with “no possibility of reformulating, refining or retracting them before they were made public” whereas Duró had put his insults in writing (via Twitter) or written and recorded his song before publishing it, “which presupposes that they were the result of a thought process”. [para. 47] It also noted that the nature of the punishment was different as Mondragon was given a prison sentence, where Duró’s sanction was “only of a financial nature”. [para. 47]

On the conviction for insults against State institutions, the Court emphasized that Duró “repeatedly and without any evidence accused members of the police force, whom he called Nazis, of crimes such as torture and the murder of immigrants.” [para. 48 The Court again distinguished the present case from a previous similar one, Toranzo Gomez v. Spain, where the Court had found that it was within the legitimate exercise of Article 10 to describe the police actions at a press conference as torture, “given the colloquial nature used by the applicant to criticise that action”. [para. 49] The Court stressed that Duró had called the police torturers and Nazis “without providing any evidence for his assertions”, and that Duró had made his accusations on Twitter; “which allowed him to reflect on their content and on which his large number of sympathisers were able to access his messages free of charge”. [para. 50]

Accordingly, the Court held that Duró’s criminal conviction was not “disproportionate to the legitimate aim pursued” and that his “complaints under Article 10 of the Convention were manifestly ill-founded” and that there had not been a violation of the right to freedom of expression. [paras. 51-52]