Like almost all agreements, the regeneration plan approved by the Council of Ministers on Tuesday was finalised at the last minute. The coalition partners had made great progress in recent weeks on the details of the 31 measures included in the text promoted by the Government to “strengthen the right to freedom of expression and guarantee the right to truthful information”. But the negotiation stalled at the last minute on one specific point: the reform of the Penal Code on the types of offences related to freedom of expression and, more specifically, on the offence of insults to the crown.
An old demand from the parliamentary left and a red line for Yolanda Díaz’s party in their conversations with the socialists to agree on the plan, the Sumar and PSOE teams exchanged documents with proposals until late on Monday to polish a wording that proposes “to address a comprehensive reform of the articles of the Penal Code that may affect the right to freedom of expression and artistic creation, among other cases when it refers to state institutions, whether it concerns crimes against religious feelings or public ridicule or other assumptions.” On behalf of the Sumar technical team, the general secretary of the Communist Party of Spain, Enrique Santiago, participated in that drafting.
For Sumar, the agreement reached leaves no room for doubt about the reform of the specific criminal type regarding the Head of State, although during the negotiation with the PSOE they ended up admitting that no express reference was made to it in the text. “What we have agreed is that the articles that are the object of this comprehensive reform are those that refer to defamation of state institutions. For me, as Minister of Culture, it is a great satisfaction that it forms part of the Action Plan for Democracy. The citizens would not have understood if it were not so,” said Ernest Urtasun in a press conference.
The Minister of Justice preferred to be more cautious about the development of this reform. “The opinion of the Minister of Justice will be important or not, but what will be really important is the Bill that is approved by the Council of Ministers when we do so and then having sufficient parliamentary support to reform the Penal Code. Spanish criminal legislation must be adapted to the best criminal legislations of the countries in our European environment and also to the jurisprudence of the European Court of Human Rights,” responded Félix Bolaños after being specifically questioned about whether this reform affected the crime of insults to the crown.
The reform of the Penal Code to soften or repeal more controversial crimes related to freedom of expression is a debate that periodically resurfaces, especially in the groups that are to the left of the PSOE. Both Unidas Podemos and Sumar have presented several parliamentary initiatives this term that have not managed to be approved. Both formations have always defended its total repeal.
However, so far the socialists have shown themselves to be in favour of reforming them to punish only behaviour that “clearly” poses a risk to public order or provokes some kind of violent incident and without prison sentences. This was stated, for example, in the initiative put forward in 2021 by the Ministry of Justice then headed by Pilar Llop in the heat of the protests following the imprisonment of rapper Pablo Hasel after being convicted for 64 tweets and a song in which he criticised the king and the monarchy and censored police actions with very harsh expressions.
Now, the Executive’s plan proposes giving these crimes “a wording comparable” to countries in the European environment and “paying attention to the jurisprudence of the European Court of Human Rights (ECHR), in the matter of defamation and its legal framework.” The reality is that the doctrine of the Strasbourg Court has been pointing towards a very restrictive interpretation of this type of crime.
The ECHR’s case law holds that freedom of expression not only protects ideas that are considered harmless or indifferent, but also especially protects those that shock, disturb or offend the State or any part of the population. The majority view is that the only possibility of restricting this right in these cases is in relation to speech that directly incites violence or deepens the discrimination already suffered by vulnerable groups.
For example, Strasbourg has repeatedly called for “criminal restraint” in the face of insults to national symbols and state institutions, alluding precisely to the “dominant” position of the institutions. Recently, its judges reversed the sentence imposed by the Constitutional Court on a trade unionist who shouted that the “fucking flag” should be burned. In that case, it pointed out that the contradiction between freedom of expression and respect for symbols must be understood “in its context.” In this case, in the midst of protests during a strike over non-payment of wages.
Despite criticism from Europe, in recent years there has been a surge in legal proceedings in Spain on criminal offences such as insults to national symbols, insults to the Crown, glorification of terrorism or crimes against religious sentiments. These cases often end in dismissal, acquittals or convictions that are later revoked, but which leave behind years of charges for the accused, with the public and private repercussions that this entails.
Gag law and official secrets
The regeneration plan also addresses other recurring demands for the left and for the majority of Pedro Sánchez’s parliamentary partners. After first committing to repeal the Citizen Security Law, known as the ‘gag law’, and failing to reform it last term due to a lack of consensus in Congress, the Government is now proposing changes “on the qualification of the sanction for the use of images of the State Security Forces and Corps”.
This declaration of intentions is insufficient for the Government’s usual partners in Congress, who have specifically described this point as “ridiculous.” These are the words used by the Basque Nationalist Party to evaluate a reform proposal that only refers to one point, especially, say sources from the group, when during the last legislature an agreement was on the verge of being reached that dismantled more than 90% of that text that Mariano Rajoy’s Government approved to curtail the right to protest.
In the last legislature, work was done on a text by the Basque Nationalist Party to try to move forward with the repeal of the law. The negotiations were thrown into disarray by the clash between the PSOE on the one hand and EH Bildu and Esquerra Republicana (ERC) on the other over four specific points. These two groups find the announcements on this reform clearly insufficient.
“We do not see any relevant news in the announcements regarding the reform of the Gag Law. It is insufficient. If this were the case, the most damaging articles for which the reform did not prosper in the last legislature would remain intact, so it is time to continue pushing to eliminate them,” say sources from EH Bildu.
ERC, which describes the package announced by the Government as “pure disappointment”, believes that the reform of the “gag law” is based solely on “applying a ruling by the Constitutional Court”. “However, fundamental aspects are left out, such as a comprehensive reform of this law, which must address key aspects such as the prohibition of rubber bullets, the review/elimination of sanctions for lack of respect and disobedience, and the so-called hot returns, which we have so often demanded”, they maintain, in line with the arguments that led them last year to vote against the reform that was being processed in Congress and never saw the light of day.
The Government’s proposal to address the reform of the Official Secrets Act has left a similar aftertaste. A historic demand from groups such as the PNV or the left wing of the PSOE, the Government argues in its regeneration plan that the time has come to change a law that dates back to 1968. “It is difficult to explain that Spain maintains a law on such a sensitive matter that dates back to 1968. We believe that our democracy deserves a law on official secrets that is contemporary, that embraces the best of the legislation of countries in our environment,” said Minister Bolaños after the Council of Ministers.
The PNV, which describes the entire package as “vague” and prefers to wait for more details to be available to make an in-depth assessment, warns that a reform such as the one the Government tried to push through last term would be insufficient. “If it is based on the 2022 Draft Bill, it would imply that the deadlines for declassifying documents would even double those proposed in the Basque Group’s Bill that is being processed in Congress,” say sources from the nationalists.
An idea shared by Basque separatists. EH Bildu warns that, pending further details, “if it means recovering the deadlines and the proposal made by the Government two years ago” it will not have their support.
ERC also criticises the lack of details regarding this law. “When we have the specific texts, we will take a decision on each measure, but for now what we have seen is a declaration of intentions and a very lukewarm one. The PSOE acting like the PSOE. Pure disappointment. We will see how everything is specified in the parliamentary process, but we are observing it with concern,” they maintain, regretting that “the sewers of the State” are not being cleaned up with measures to punish those “responsible and responsible” for illegal or illicit actions or to remove them from positions susceptible to reoffending in the event of the statute of limitations for the crime.
The Basque separatists are somewhat more optimistic when it comes to assessing the package of measures as a whole, with the exception of these last two. They consider that it is going in the right direction because it includes some of the issues that they put to the Government in the meetings they held in the summer: “tackling hoaxes and misinformation, increasing transparency and implementing measures to support media outlets that are entirely in official languages other than Spanish.”
Podemos has been much more sceptical, warning that it will not support any package for democratic regeneration that does not include one of its main demands: a media law that puts an end to media concentration and democratises the radio spectrum, with a three-thirds division, with one space for public media, another for private media and another for collective media.
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