Opinion

Article 578 of the Penal Code: Impartiality as a problema

photo_camera Artículo 578 C.P.: El problema, la imparcialidad 

"... Being Basque and writing songs against the police and against what we don't like is not the same as supporting ETA...", Soziedad Alkoholika, acquitted by the Audiencia Nacional in 2006, on the grounds that their lyrics did not glorify terrorism.  

In view of the massive commotion that the sentence against Pablo Rivadullo Duró, alias "Pablo Hasel", has caused, it is necessary to review the sentence and clarify the motivations that led to the ruling.  

Ruling Nº.8 /2014, of the Criminal Chamber, 3rd section of the National High Court, by which the rapper "Hasel" is convicted of the crime of glorifying terrorism, based on the lyrics of his songs uploaded to the social network You Tube since 2009, in which allusion is made to the terrorist group ETA, GRAPO, Al Qaeda, Terra Lliure, RAF and RAF, Terra Lliure, RAF and some of their members, showing clear support for these organisations "extolling and praising their actions, justifying their existence, calling for them to commit their terrorist actions again, even presenting the members of the aforementioned terrorist gangs as victims of the democratic system. ”  

To visualise the references to such songs, some of those presented in the judgement are set out below:   

"You think about whether to plant bombs or go on stage".  

"If by attacking the guilty we are called terrorists"  

"I prefer GRAPO (terrorists) to GUAPOS (the beautiful ones)"  

"The GRAPO acted in self-defence against imperialism and its crimes"  

"If the GRAPO came back I would say po po po po"  

"I wish GRAPO would come and bring you to your knees"  

"My brother enters the PP party headquarters shouting, Gora ETA!" "Don't try to convince me who the bad guys are, because I have witnessed their rallies, I only think about killing them".  

"Somebody will please stick an ice axe in José Bono's head".  

"More commandos are missing. I don't feel sorry to see you get your head shot, you PP politician/banker/millionaire/socialist/fascist/greedy capitalist". 

Taking the above references as an example, we now move on to the sentence, convicting Pablo Rivadullo Duró as the criminally responsible author of a consummated crime of glorification and justification of the crime of terrorism in relation to attempting against the life or physical integrity of persons and property.   

The defendant lodged an appeal in cassation (Art. 847-852 LeCrim), considering that the right to freedom of expression, communication and information, enshrined in Articles 20 EC, Article 10 of the Rome Convention, 19.2 of the International Covenant on Civil and Political Rights, Article 19 of the Universal Declaration of Human Rights and Article 11 of the Charter of Fundamental Rights of the European Union, had been violated. The appeal was challenged and the court in charge of the case argued the charge on the basis of two grounds.  

In order to clarify the doubts regarding the different articles related to the case, the Court explains the differences between the crime of glorification of terrorism in Article 578 and that of apology in Article 18. While the former refers to the direct invitation to commit a specific crime, considering it as a basic type, Article 578 is focused on an extramural crime, a specific type that requires special regulation, such as terrorism (as happens with the crime of homicide and its aggravating circumstance in the case of gender-based violence).   

The article for which the accused is convicted encompasses the justification and glorification of acts between 571 and 577 of the Penal Code, supporting terrorist organisations and their members, as well as disparaging the victims of such acts. This is active behaviour, which constitutes a crime of mere activity and lacks a material result, but of a malicious or intentional nature, exceeding the limits of freedom of expression.  

The protective barrier goes beyond the mere generic justification or praise of terrorism. It does not criminalise mere hatred, something innate and natural in human beings, but external acts that praise it and constitute criminal offences. 

Pablo Rivadullo himself, in his defence before the court, provides us with a clear example of why his creations are criminalised as opposed to those of other artists of the same line.  

The rapper alleged the impunity of the group Soziedad Alkoholika, who were accused of the same offence by the Asociación Víctimas del Terrorismo (Association of Victims of Terrorism), asking for the same sentence imposed on the rapper. However, after being acquitted by the Audiencia Nacional,ii and well founded in their arguments, the group added, "... Being Basque and having songs against the police and against what we don't like is not the same as supporting ETA...", here is a clear example that exemplifies what is and what is not, a glorification of terrorism and freedom of expression.   

As the Court concludes, "We are dealing with a fact that is qualitatively different from the one currently being prosecuted, and for this reason the response is also different. Obviously the music is the wrapping, the shell, it is the lyrics of such songs that are criminally relevant, which contain the message".  

However, there is a turning point that clarifies the reason for so much social uproar and so much anger, without absolving the rapper of responsibility, on the contrary, demonstrating the need to punish both, in the search for justice in the face of intolerance and violence, both physical and verbal. The permission of the celebration of a neo-Nazi demonstration several days ago in Madrid, in which fascist chants, accompanied by the Nazi salute, did not cease in the 21st century; in the open and in broad daylight.   

"It is necessary that you break the curfew, that you meet with your family and friends, that you gather with more than six people, as we are here today; and that you embrace each other, and that you sing and live joyfully. Because fascism is joy",iii this being the mildest of their statements, followed by the string of nonsense that one of their spokespersons, Isabel Medina Peralta, who publicly claims to have Hitler and Primo de Rivera as references, spouted with total impunity before her audience: "It is our supreme obligation to fight for Spain and for a Europe now weak and liquidated by the enemy, the enemy that will always be the same, although with different masks: the Jew. For there is nothing more certain than this statement: the Jew is the guilty one. "iv  

Without going any further, the Holocaust led to the creation of the Universal Declaration of Human Rights in 1948. Something which would be impossible to imagine happening in Germany enjoys total impunity in our country. In addition to the advocacy of violence, hatred or discrimination in Article 510 of the Criminal Code, there are crimes against humanity in Article 607, more specifically in its second paragraph, relating to the justification of crimes of genocide and the fight for the rehabilitation of regimes prone to it, whose maximum penalty would be revisable permanent imprisonment.  

As Austrian philosopher Karl Popper said: "We must claim, in the name of tolerance, the right not to tolerate the intolerant".