The Case of Kairat Bektenov and others
On Appeal Contracts Expression
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The Spanish Supreme Court found a Spanish singer and songwriter guilty of glorifying terrorism and sentenced him to one years’ imprisonment (suspended) after the singer published a series of tweets seeming to support two terrorist groups. The lower court had acquitted the singer, but on appeal the Supreme Court held that the right to freedom of expression did not extend to support for terrorism as that infringed the enjoyment of other citizens’ rights and forced victims of terrorism to relive their traumatic experiences.
As of February 2019, Strawberry has challenged the decision before the Spanish Constitutional Court and has stated that he is considering filing a claim before the European Court of Human Rights.
Between November 2013 and January 2014, César Montaña Lehman, known as “César Strawberry”, a Spanish singer and song writer of the groups Def Con Dos and Strawberry Hardcore, published six controversial messages on Twitter. César Strawberry, who has also published five novels and worked as a scriptwriter, actor, director and producer in various films and in television, is critical in his writing and his lyrics are characterized by his provocative, ironic and sarcastic tone where he uses action and horror stories to get the attention of the audience.
The tweets related to the armed group GRAPO (First of October Anti-Fascist Resistance Groups) and the former prison guard José Antonio Ortega Lara, who was kidnapped by the ETA (Basque Homeland and Liberty). Both GRAPO and the ETA are deemed terrorist groups by the European Union and César Strawberry’s tweets appeared to support the groups: one of the tweets expressed approval of Ortega Lara’s kidnapping as it read “Ortega Lara should be kidnapped now”.
As a result of the tweets, César Strawberry was charged with glorifying terrorism and humiliating its victims under article 578 of the Spanish Criminal Code. He was acquitted by the First Criminal Chamber of the National Audience (Sección Primera de la Sala de lo Penal de la Audiencia Nacional) but the Prosecution Ministry filed a cassation appeal to the Supreme Court of Spain.
The central issue before the Supreme Court of Spain was whether César Strawberry was guilty under article 578 of glorifying terrorism and humiliating its victims.
César Strawberry argued that he did not intend to humiliate the victims of terrorist groups or to promote or justify terrorism.
The Attorney General submitted that the tweets by César Strawberry diminished the significance of acts of terrorism which, in turn, jeopardized peaceful coexistence of citizens.
The Court acknowledged that not every instance of excessive speech and not every expression that is deemed unacceptable by the majority of citizens should constitute a criminal offence. The Court recognized the different forms of reparation for excessive speech under the Spanish legal system and held that a penal sanction must be reserved for only the most serious or harmful exercises of freedom of expression. The Court explicitly noted that even expression that is excluded from the protection of the right to freedom of expression need not be punished criminally.
The Court examined the impact of modern technology and how the dissemination of messages of hate and violence through this new technology can increase the impact and potential damage of the message “through successive and renewed acts of transmission” [p.11]. The Court said that this impact, along with the fact that the messages can be transmitted across international borders, must be considered when assessing the lawfulness of the speech.
In examining the lawfulness of the tweets, the Court made reference to an earlier decision, STC 235/2007, in which hate speech in this context was defined as “the praise or justification of terrorist actions, which cannot be included within the protection granted by the right to freedom of expression or ideological freedom to the extent that terrorism constitutes the most serious violation of human rights”. The Court added that the purpose of terrorism is to eliminate those who are different, and it is based on the most absolute intolerance and on the lack of recognition of political pluralism.
The Court analyzed other cases in which article 578 has been used to criminalize individuals’ expression, including the case, STS 846/2015, where the statement “Gora ETA freedom political prisoners, Miguel Angel Blanco better dead” was found to constitute a criminal offence and the case, STS 984/2016, where a picture of a policeman burning in flames with the comment “how well the wood burns” also led to a criminal sanction.
The Court emphasized that freedom of expression does not protect expression that humiliates or holds in contempt victims of terrorist attacks. It noted that in its determination it had to take into account whether César Strawberry’s tweets would be offensive to those who have suffered from terrorism. The Court held that the right to freedom of expression does not extend to threats against citizens because such expression infringes the freedom of others and does not contribute to the construction of a free and informed public opinion.
Accordingly, the Court held that César Strawberry’s tweets met the requirements for criminal sanction under article 578 of the Penal Code. The Court noted that the fact that he is known as a singer and song writer whose lyrics are characterized by his provocative, ironic and sarcastic tone does not discharge him of liability. The Court held that “affirmations such as those disseminated in the network by César Montaña feed hate speech, legitimize terrorism as means of resolving social conflicts and, more importantly, force the victims to remember the lacerating experience of the threat, the kidnapping or the murder of a close relative” [p. 22].
The Court sentenced him to one year of imprisonment (suspended) for the glorification of terrorist acts and the humiliation of its victims and six years and six months to absolute barring under article 579.2 of the Criminal Code. Absolute barring “leads to definitive deprivation of all honours, public employments and posts the convict has, including those to which he has been elected. It also causes incapacity to obtain these or any other honour, posts or public employment, and to be elected to public office, during the term of the sentence.”
Judge Perfecto Andrés Ibáñez delivered a dissenting judgment. The Judge held that although César Strawberry’s tweets were defiant and scandalous they should not be criminalized. In addition, he noted that César Strawberry did not have any connection to any actor or act which could be considered terrorist.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment has a chilling effect on the right to freedom of expression in Spain as it applies criminal sanction to sarcastic and metaphoric expression on Twitter. In this decision, the Spanish Supreme Court contradicts its own jurisprudence that had ensured that mocking and off-color jokes did not attract criminal sanctions.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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