Case Summary and Outcome

The Constitutional Court of Spain struck down part of a provision of the Criminal Code that penalized the denial and justification of the Nazi holocaust. The case was brought to the Constitutional Court by the Third Section of the Provincial Court of Barcelona after an individual was sentenced to an effective five years’ imprisonment for distributing material that denied the Holocaust. The Constitutional Court held that the simple denial of the Holocaust was a legitimate expression of freedom of speech as it did not constitute any threat or incitement to commit genocide and so declared that aspect of the legislation unconstitutional. However, the Court held that the legislation’s criminalization of the justification of the Holocaust was constitutional as expressions of justification constituted an indirect incitement to commit genocide.

---

Facts

Pedro Varela Geis was an owner of a library in Barcelona, Spain who distributed and sold different materials (including books, publications, letters, among others) that denied the Nazi holocaust that had occurred during the Second World War. Most of the documents incited the discrimination and hate against the Jewish community, and the people who visited the library most frequently were youths who believed in the use of violent means to resolve conflict.

On November 16, 1998, the Third Criminal Court of Barcelona sentenced Verla Geis to two years in prison under article 607.2 of the Criminal Code, for “diffusion by any means of ideas or doctrines that deny or justify the crimes in the preceding Section of this Article, or that aim to reinstate regimes or institutions that protect practices that generate these” . It also sentenced him to three additional years under article 510.1 of the Criminal Code for provoking “discrimination, hate or violence against groups or associations due to racist, anti-Semitic reasons or any other related ideology, religion or belief, family situation, belonging to an ethnic group or race, national origin, gender, sexual preference, illness or handicap”.

The Third Section of the Provincial Court of Barcelona appealed the judgment to the Constitutional Court on the grounds that it believed there was a constitutional incompatibility between the punishment of holocaust denial or justification in article 607.2 of the Criminal Code and the right to freedom of expression protected by article 20.1. of the Spanish Constitution.

---

Decision Overview

The central issue before the Constitutional Court was whether article 607.2’s criminalization (with the sanction of imprisonment) of the dissemination of ideas or doctrines denying or justifying the Holocaust was compatible with the constitutionally protected right to freedom of expression.

The appellant Court argued that the article was contrary to the right to freely express ideas and opinions.

The Attorney General and the Prosecution Ministry argued that States are allowed to implement laws which interfere in the exercise of the right to freedom of expression provided that such restrictions aim to achieve a constitutionally legitimate purpose. They submitted that, in the present case, the legislators’ intention had been to prevent conduct “that could potentially generate further acts of racial or ethnic violence” [p.14], and that the limitation of the right to freedom of expression through article 607.2 was therefore permissible.

The Constitutional Court acknowledged that article 607.2 addresses crimes of genocide defined as those who aim “to fully or partially exterminate a national, ethnic, racial, religious or specific group”.

In assessing the nature of the right to freedom of expression, the Court referred to the European Court of Human Rights (ECtHR) jurisprudence which stressed that the right is a fundamental pillar in every democratic society, and recognized that the existence of free public opinion is an essential precondition for the exercise of other rights in the democratic system. The Court noted that, under Spanish law (STC 174-2006), the right to freedom of expression includes the freedom to criticize, even when this can be “unpleasant and can disturb, concern or displease the target” and so the right allows not only the dissemination of harmless ideas, but also those which are contrary to the views of State or any part of the population. Similarly, the Court recognized that the right encompasses the protection of subjective opinions about historic facts and that – irrespective of how erroneous or unfounded they may – the expression of the opinion is valid so long as it does not threaten the dignity of individuals or the peaceful coexistence of all members of society.

The Court held that statements, opinions and doubts about the concentration camps and the Nazi crimes against the Jewish community are protected by the right to freedom of expression, regardless of how reprehensible or misinterpreted they may be. The Court emphasized that these statements must be understood as subjective opinions on historical events.

However, the Court clarified that this does not imply that the free dissemination of ideas is an absolute right as degrading or offensive expressions are excluded from the protection of the right. The Court highlighted that article 20.1 of the Constitution does not protect expressions of a racist or xenophobic nature, and so the right to express and share a certain understanding of history does not extend to the discrimination of a group by virtue of its race or ethnicity. Accordingly, it does not protect offensive statements against the Jewish people that deny the existence of the Nazi genocide.

In addition, the Court held that the right does not protect hate speech, which it defined as the “direct incitement to violence against citizens in general or against certain races or beliefs in particular” [p.20]. Here again the Court referred to the ECtHR jurisprudence and noted that in assessing the legitimacy of limitations to the right it is necessary not only to prove the existence of damage, but also the express intention to destroy the freedom of others.

When applying these principles to the present case, the Court held that article 607.2 criminalized the mere expression of opinion without the additional requirements of the relevant statements including xenophobia or racism or incitement (direct or indirect) to commit genocide. The Court held that the structure of the article therefore did not require the presence of a threat or damage to other constitutionally protected rights in order for a crime to have been committed, and noted that the article criminalizes conduct that does not necessarily create a hostile environment.

The Court held that the criminalization of the denial of the Holocaust article did not constitute a justifiable use of criminal law to limit the right to freedom of expression because the mere denial of the Holocaust does not threaten the enjoyment of other constitutionally protected rights.

However, the Court held that this did not apply to article 607.2’s criminalization of the justification of crimes committed against Jews during the Second World War. The Court held that justifying these atrocities constitutes an “indirect incitement to its perpetration” [p. 27] and so expressions of this nature cannot be protected by article 20.1 of the Constitution. Accordingly, the Court held that to the extent that article 607.2 criminalizes the justification of those atrocities it is a legitimate limitation of the right and therefore constitutional.

The Court declared that the word “deny” in article 607.2 was unconstitutional as it unjustifiably limited the right to freedom of expression, but that the provision’s criminalization of the expression of ideas or doctrines justifying the crimes of genocide was a constitutional limitation of the right to freedom of expression.

There were four dissenting opinions. Judge Roberto García-Calvo y Montiel stated that freedom of expression is not an absolute right and that racist or xenophobic statements are not protected under this right. In addition, he noted that there is a legal obligation to all States to prevent further acts of violence against determined groups and that allowing statements that deny atrocities from the past goes against this mandate. He stated that the Court should have examined the constitutionality of the article as a whole rather than assessing its distinct parts.

Judge Jorge Rodríguez-Zapata Pérez referred to the historical context that addresses laws that punish those who deny or misinterpret the Nazi holocaust. He also referred to the threat against pluralism in the European Union and noted that, so as not to repeat the errors of the last century, European States cannot become a refuge and propaganda centre for new xenophobic and racist groups. He noted that widening the scope of the protection of the right to freedom of expression represents a regression in the guarantees of pluralism that have prevailed in Spain and Europe.

Judge Ramón Rodríguez Arribas stated that denying the Nazi genocide disrespects its victims and that by arguing that the right to freedom of expression protects such statements does, in fact, impair the right itself. He commented that protecting distorted opinions about this historical event encourages forgetting what actually happened. He emphasized that article 607.3 sought to protect society from behavior which could create an environment of violence and racial, ethnic or religious discrimination.

Judge Pascual Sala Sánchez stated that the majority judgment’s interpretation is contrary to Spain’s international legal obligations which require States to take effective measures to punish justification of genocide (including the denial and trivialization of such crimes). He stated that the majority judgment restricts the scope of the legislation to criminalize and punish such reproachable conduct.

---