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SPAIN: Manifesto in defence of freedom of expression, creativity, and the right to protest

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– Unofficial translation of manifesto from Plataforma en Defensa de la Libertad de Información, accessible here

The Plataforma en Defensa de la Libertad de Información (PDLI), No Somos Delito, Defender a Quien Defiende and the Asociación Pro Derechos Humanos de Andalucía (APDHA) consider the imminent imprisonment of Pablo Hasel to be extremely serious after being convicted, among other things, for the content of the lyrics of his songs and some of his messages on Twitter.

Just as we raised our voices against the sentencing of other singers, we once again make an urgent call for jurists, citizens and civil society organisations to express their rejection.

For the PDLI, No Somos Delito, Defender a Quien Defiende and APDHA, without going into the judicial decision on the suspension of the sentence, these sentences constitute a clear violation of Fundamental Rights and are contrary to the international principles on freedom of expression to which Spain is subject to.

Regardless of the opinions that each person may have about the rapper’s lyrics, the PDLI, No Somos Delito, Defender a Quien Defiende and APDHA consider that a democratic society cannot remain impassive in the face of this attack on an essential and inalienable right such as freedom of expression.

MANIFESTO IN DEFENCE OF FREEDOM OF EXPRESSION, CREATIVITY AND THE RIGHT TO PROTEST

The undersigned individuals and organisations:

We consider that the sentencing of Pablo Hasel for the content of the lyrics of his songs and tweets constitutes a clear violation of Fundamental Rights and is contrary to the international principles on freedom of expression to which Spain is subject to.

We recall that on countless occasions bodies such as the UN and the OSCE, as well as the jurisprudence of the European Court of Human Rights, have established how limits to freedom of expression should be set: restrictively (with the least possible intervention) and proportionally, and always linked to the intentionality of the messages and the risk they may pose to people.

We defend that freedom of expression includes, according to international jurisprudence, the right to shock, disturb and offend.

We defend that in the world of artistic creation and political activism, extreme, unpleasant and highly offensive provocation can be a legitimate form of political criticism. Criticism which, by the way, deserves the maximum possible protection, even in cases where it is presented in a crude, unsavoury and extremist discourse, in accordance with European human rights jurisprudence.

We reject the use of anti-terrorist legislation to censor extreme political speech. In particular, it is essential to remember that the Court of Human Rights has a very clear and solid jurisprudence, according to which legal systems cannot grant special and qualified protection to their most important offices and institutions (including the Crown), but rather, on the contrary, allow a greater degree of criticism and even attack as they are public institutions that should be subject to questioning and scrutiny by citizens in the framework of a democracy.

We insist that, in line with what the European Court of Human Rights has established in relation to so-called ‘crimes of expression’, what matters is not only what is said, but also who says it, to whom it is addressed and in what context it is said.

We recall that the limits that international law allows in relation to freedom of expression are fixed: only in those cases in which freedom of expression invades in an unjustifiable way the exercise or effectiveness of a right or involves incitement to commit crimes or the serious infringement of the rights of others will these limits be legitimate. In all other cases, citizens have the right to express themselves, even if what they may say is shocking or offensive to others. There is, in short, no right not to be offended.

The conviction of Hasel once again demonstrates the need for urgent reform of terrorism-related crimes, especially with regard to the public expression of certain opinions or criticisms, in order to avoid criminalising the free activity and opinion of people who have nothing to do with these types of organisations.

We consider that, on the contrary, with this conviction, the judiciary has placed itself in an extremely dangerous position, as it considers that citizens must be protected, through the use of custodial sentences, against content that may be offensive to them.

We denounce the disastrous action of all public authorities that has led to this conviction, which is contrary to the jurisprudence of the European Court of Human Rights and international standards on freedom of expression.

For all these reasons:

We urge the legislative powers to reform the Penal Code to bring it into line with international human rights standards. Anything short of a complete repeal of so-called ‘speech offences’ will be insufficient. At the same time, and following the announcement made by the Ministry of Justice to promote this revision, we call for maximum transparency in this reform process.

We urge the government to keep its actions within the framework of these standards, both on the part of the Ministry of the Interior – refraining from pursuing cultural content or messages on social networks that are not dangerous and, even less so, through prospective techniques – and on the part of the Attorney General’s Office, sustaining accusations and calling for disproportionate sentences.

We urge the judiciary to interpret crimes of opinion in accordance with international human rights texts and to take into account, in particular, the jurisprudence of the European Court of Human Rights.

MADRID, 11 FEBRUARY 2021

Signed:

PLATAFORMA EN DEFENSA DE LA LIBERTAD DE INFORMACIÓN (PDLI)

PLATAFORMA ‘NO SOMOS DELITO’

Asociación Pro Derechos Humanos de Andalucía (APDHA)

DEFENDER A QUIEN DEFIENDE (DqD)

VIRGINIA PÉREZ ALONSO (Periodista, presidenta de la PDLI)

CARLOS SÁNCHEZ ALMEIDA (Abogado, director legal de la PDLI)

LORENZO COTINO (Catedrático de Derecho Constitucional, miembro de la PDLI)

JOAN BARATA (Jurista experto en libertad de expresión en U. Standford, miembro de la PDLI)

DAVID BRAVO (Abogado, miembro de la PDLI)

JACOBO DOPICO (Catedrático de Derecho Penal, director de Libex.es, miembro de la PDLI)

MARISA CUERDA (Catedrática de Derecho Penal y miembro del GEPC y de la PDLI)

MANUEL SÁNCHEZ DE DIEGO (Profesor de Derecho de la Información de la UCM, miembro de la PDLI)

MARTA TIMÓN HERRERO (Jurista, miembro de la PDLI)

MIGUEL PRESNO LINERA (Catedrático de Derecho Constitucional)