Case Summary and Outcome

The Constitutional Court of Spain, in a divided decision, confirmed the sentence appealed by Jaume Roura and Eric Stern, who were criminally convicted on charges of slander against the Crown. The STC held that their actions fell within the restrictions on freedom of expression for inciting violence and promoting hate speech.

Facts

In 2007, during the visit of King Juan Carlos I and Queen Sofia to the town of Gerona, amid an anti-monarchy protest, Jaume Roura and Enric Stern publicly burnt an image of the royals. They were criminally convicted for their actions, charged of slander against the Crown, art. 490.3 of the Penal Code, and were sentenced to 15 months of imprisonment, which was substituted for a 2700 euros fine.

Roura and Stern appealed the sentence until it reached the STC. The Court’s majority decision upheld the lower court’s sentence, understanding that their actions were not protected by their rights to ideological freedom (Spanish Constitution, art. 16.1) and freedom of expression (art. 20.1 a); highlighting that those rights have restrictions in cases of incitement to violence and hate speech, which the justices viewed present in this case.

Decision Overview

The STC, in its majority vote, held that the burning of the King and Queen’s image was not within the legitimate scope of the right to freedom of expression or the materialization of the right to ideological freedom of Roura and Stern. As a basis, the justices highlighted the fact that the appellants’ actions were premeditated and were conducted under disguise, and not accompanied by any discourse, text, message or opinion. Thus, the Court denied their claim that this type of expression was a legitimate exercise of their right to criticism of monarchical institutions.

The Court concluded that the burning of the image must be understood, not as a legitimate form of freedom of expression, but as an incitement to violence against the person and institution of the Crown, a way of exclusion of those who are adept to it, as a promotion of aggression and a threat.

Several justices dissented and presented individual votes.

Justice Adela Asua Batarrita, and justice Fernando Valdés Dal-Ré in adherence, argued that the burning of an image of the royal couple in the midst of a political protest is protected by the rights of freedom of expression and ideological freedom. They further express that the right to freedom of expression has limits when violence or hate speech are present. In regards to violence, Asua Batarrita, emphasized that the right should be restricted when there is a clear and imminent danger, following the doctrine of the U.S. Supreme Court. In terms of hate speech, the justice held that it is a term historically based and intended to refer to incitement to hatred against races, xenophobia, and other forms of segregation based on intolerance. She fears the term as used by the majority is being trivialized and dangerously broadened as a restriction.

Asua Batarrita also highlighted that the right to freedom of expression is the key to the development of public opinion and pluralism even when that expression is taken to be offensive or disturbing. The justice finished her vote by pointing out that, apart from her dissent with the majority’s view on the preceding points, the issue of whether Roura and Stern’s actions were in fact slander to the institution of the Crown was left unanswered, and thus the object of the appeal remains pending.

Justice Encarnación Roca Trías highlighted that the appellants’ conduct was within the scope of the right to ideological freedom and the right to manifest it, which could only be restricted under clear and present danger, which was not present in the case at hand. Justice Juan Antonio Xiol Ríos started his vote by underlining that the burning of an image of political representatives or symbols is internationally recognized as an innocuous form of freedom of expression.

Xiol Rios continued to differ in three points with the majority vote. First, he argued that they have incurred in a trivialization of the term hate speech. The justice cited the ECHR to affirm that there are two distinctive notes to hate speech, that is: (1) the direct incitement to violence, and (2) its aim towards citizens in general or against certain races, beliefs or forms of living in particular. The justice presented different cases in which criticism against one individual was not accepted as hate speech and cited different instances in which the profanation of symbols was interpreted as within the scope of freedom of expression by the ECHR and other Constitutional tribunals. Xiol Rios voiced that the burning of the image generated no violence and that there was no threat to the King and Queen, but merely a manifestation of discontent. Additionally, the justice rejected that the fact that the action was not accompanied by a message is not definitive of an alienation between the appellants and the protest, and that the fact that they were under disguise did not signify their intent in knowingly committing a crime. Finally, Xiol Rios affirmed, as Asua Batarrita, that the object of the criminal conviction has not been answered.