Case Summary and Outcome

The Belgian Constitutional Court held that the special crime of insulting the king violated the fundamental right to freedom of expression, and so a Spanish rapper sought on charges of insulting the Spanish king could not be extradited by Belgium. The Spanish rapper had fled to Belgium after being charged with various crimes in Spain related to his criticism of the royal family and support for terror groups. After Spanish authorities sought the rapper’s extradition, a Belgian lower court rejected it on the grounds that most of the crimes the rapper was accused of were not crimes in Belgium and so the conditions for extradition could not be met. However, Belgium does have the crime of insulting the king, and the lower court sought an opinion from the Constitutional Court on whether this crime was consistent with Belgium’s protection of the right to freedom of expression. The Court referred to jurisprudence from the European Court of Human Rights and held that the Belgian crime was an unconstitutional interference with the right to freedom of expression.

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Facts

On February 21, 2017 Jose Miguel Arenas, a Spanish rapper better known under his pseudonym Valtònyc, was convicted by the Spanish National High Court (Audiencia Nacional) for publishing several rap songs on his YouTube channel and personal webpage. In his songs, he joked about previous terrorist attacks by ETA and GRAPO (two Spanish terrorist groups). He also made several insults towards the King and the royal family in general, calling them “corrupt” or a “mafia gang”, and including lyrics such as: “the king has a date in the people’s square, a noose around his neck that will feel like the weight of the law.”

The Spanish Audiencia Nacional convicted Valtònyc of threats under Article 169 Spanish Penal Code (SPC), glorifying terrorism and humiliating its victims under Articles 578 and 579 SPC and slander against the Crown under Article 490.3 SPC. He was sentenced to a total of three and a half years of imprisonment.

Valtònyc was supposed to surrender himself to the authorities to serve his prison sentence, but instead he fled to Belgium in May 2018.

Spanish authorities sought Valtònyc’s extradition. The Ghent Council Chamber in Belgium refused the Spanish Public Prosecutor’s request to extradite Valtònyc on the grounds this would violate Article 5.1 of the “Law of December 19, 2003 regarding the European Arrest Warrant (EAW)”, which states that Belgium will not extradite when the criterion of dual criminality is not met as the offense covered by the EAW is not punishable under Belgian law.

The public prosecutor appealed the Council Chamber’s decision to the Ghent Chamber of Indictment. The Chamber held again that it could not extradite Valtonyc for the crime of glorifying terrorism and humiliating its victims since this crime does not exist in the Belgian legal order (Belg., Cass. P.21.1692.N, para. 23). The crime of Slander against the Crown, however, does exist under the “Law of April 6, 1847 regarding the criminalization of insulting the King”. Article 1 of this Law declares that: “Whoever, whether in public places or meetings, by utterances, cries or threats, or by any writings, publications, illustrations or signs, which are displayed, distributed or sold, before the eyes of the public, is guilty of insulting the person of the King, [and] shall be punished by imprisonment from six months to three years and by a fine from 300 to 3,000 [euros].”

Valtònyc had argued that the Belgian version of the crime of insulting the King violates his right to freedom of expression, as safeguarded by Article 19 of the Belgian Constitution read together with Article 10 of the European Convention of Human Rights (ECHR) (Belgium, BCC 157/2021, p. 3). When a party casts serious doubts about the constitutionality of a law, it falls upon the ordinary courts to send a preliminary question to the Belgian Constitutional Court, who is in charge of deciding whether the law in question violates the constitution or not.

Accordingly, the Ghent Chamber of Indictment send the Belgian Constitutional Court the following prejudicial question (Belg., CC 157/2021, p. 2): “Does Article 1 of the Law of April 6, 1847 regarding the criminalization of insulting the King, which penalizes, among other things, publicly expressed insults to ‘the person of the King’, violate article 19 of the Constitution read in conjunction with article 10 ECHR ?”.

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Decision Overview

The Belgian Constitutional Court delivered a unanimous decision. The central issue for the Court’s determination was whether Article 1 of the Law of April 6, 1847 was unconstitutional.

The Court acknowledged that Article 19 of the Belgian Constitution and Article 10 of the European Convention of Human Rights (ECHR) share the same scope, because they both protect citizen’s right to freedom of expression, and described them as “inseparable”. [para. B.11.2.] The Court stressed that this required it to include jurisprudence from the European Court of Human Rights (ECtHR) in its assessment of the constitutionality of the Belgian crime of insulting the King in Article 1.

The Court set out the basic established principles of the ECtHR’s jurisprudence, in Handyside v. U.K, Lehideux en Isorni v. France, Öztürk v. Turkey, and Mouvement raëlien suisse v. Switzerland, that freedom of expression is one of the pillars of democratic society and the principles of pluralism and tolerance apply “not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. With reference to Gündüz v. Turkey, De Haes en Gijsels v. Belgium and Fressoz en Roire v. France, the Court added that the ECtHR has accepted that the exercise of the right to freedom of expression, however, can be subjected to certain “duties and responsibilities” such as “respect of the reputation and rights of others” and so there are certain permissible limitations to the exercise of the right to freedom of expression. The Court stressed that the ECtHR has held, in Pentikäinen v. Finland, that these limitations must be interpreted strictly.

Accordingly, the Court held that “by criminalizing publicly expressed insults to the person of the King, Article 1 of the law of April 6, 1847 constitutes an interference with the right to freedom of expression.” [para. B.13.1]

The Court then examined whether the limitation was permissible under the ECtHR’s regime of Article 10(2) of the ECHR which requires that the limitation pass the three-part test. This test involves the questions of legality –  “the interference must be provided for by law”; legitimacy – the limitation “must pursue one or more of the objectives listed in [Article 10, paragraph 2 ECHR]”; and proportionality – the limitation “must be necessary in a democratic society, which presupposes that it meets a compelling social need and is proportionate to the objectives pursued”. [para. B.13.2.]

The Court held that the interference was “determined by a sufficiently accessible and precise law” and pursued one of the listed objectives in Article 10.2 namely “the protection of the reputation or rights of others”.  It added that another legitimate goal of the interference can be deducted from the parliamentary documents, because the 1847 legislator also wanted to guarantee the “inviolability of the King and the stability of the constitutional system”. [para. B.15.2] Taking the historical context into account, the Court held that these objectives fit within the Article 10(2) framework, specially the “interests of national security” and the “prevention of disorder or crime”. [para. B.15.2.]

The Court, acknowledged that “this historical context is fundamentally different from the current context” and that it was required to investigate if the interference is still “necessary in a democratic society”. [para. B.15.2.]

The Court noted that the ECtHR had stressed, in Otegi Mondragon v. Spain and Stern Taulats and Roura Capellera v. Spain, that “contracting States have a certain margin of appreciation in assessing whether such a need exists”, but that there is, however, “little scope under Article 10(2) for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance – or in matters of public interest”. [para. B.16.1]  The Court included “critical expressions about public institutions or personalities, such as the King” as part of the “political debate or matters of public interest”, even when “they are shocking, disturbing or offensive” as long as they do not “incite to violence or constitute hate speech”. [para. B.16.2] It reiterated the ECtHR definition of hate speech in Stern Taulats and Roura Capellera – “all forms of expression that [promote, incite or justify] racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance”.

In examining the ECtHR jurisprudence on criminal sanctions for insulting a head of state, the Court referred to Otegi Mondragon in noting that “the imposition of a prison sentence for an offence in the area of political speech will be compatible with freedom of expression […] only in exceptional circumstances, […] as, for example, in the case of hate speech or incitement to violence” and that “providing increased protection by means of a special law on insults will not, as a rule, be in keeping with the spirit of the Convention”. [para. B.16.2 and B.18.1] This means that a head of state is entitled to the protection of his reputation like any other person, but it is not justifiable to “provide for that head of state protection beyond that provided for other persons”. [para. B.18.1] With reference to the cases of Pakdemirli v. Turkey and Otegi Mondragon and Stern Taulats and Roura Capellera, the Court explained that this applies to heads of states of republics and monarchs.

Accordingly, again with reference to Otegi Mondragon, the Court concluded that although the “inviolability of the King” and his “symbolic function as Head of State” may justify different penal procedural rules, they “do not justify giving the King a broader protection than ordinary citizens”. [para. B.18.3.] It held that Article 1 did create that special regime of protection as the maximum prison sentences and fines are heavier for insulting the King as opposed to the regular system of slander and defamation set out in Articles 275, 276, 277, 444, 445, 448 and 449 of the Belgian Penal Code). In addition, it noted that the King receives increased protection as the crime of insulting the King has a different mens rea in the form of a dolus generalis compared to the dolus specialis required for slander and defamation. [para. B.19]

The Court held that this special crime of insulting the King violates the right to freedom of expression, as guaranteed by Article 19 of the Constitution, read in conjunction with Article 10 ECHR.

The unconstitutionality of this crime meant that the dual incrimination requirement of the European Arrest Warrant was no longer met. Accordingly, the ordinary courts refused to extradite the Spanish rapper, who remained in exile on Belgian territories until his Spanish prison sentence expired.

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