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Qualitative Info |
In Spain there is no specific legislation against racism and hate crimes. Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law has not been expressly implemented in the Spanish legal system. Nonetheless, the acts contemplated by the Decision are regulated in the Organic Law 10/1995 (Criminal Code). In the Sixth Final Provision of the reformed in June 2010 Spanish Criminal Code, reformed in June 2010, which refers to the “Incorporation of European Union law”, all the EU rules are listed which are incorporated into Spanish law by means of this legal reform. The list does not contain Decision 2008/913/JHA.
As far as the national legislation in the field of racist and other hate crimes is concerned, the acts contemplated by the Decision are currently regulated in the Criminal Code. The Criminal Code generally qualifies as circumstances aggravating criminal liability “the perpetration of an offence out of racist, antisemitic or other kinds of discriminatory motives related to the victim’s ideology, religion or beliefs, the ethnic group, race or nation to which the victim belongs, gender, sexual orientation or identity, illness or handicap of the victims". The Article 510 of the Criminal Code specifically penalizes incitement to "discrimination, hate or violence against groups or associations out of racist, antisemitic or other kinds of discriminatory motives related to the victim’s ideology, religion or beliefs, family situation, the ethnic group, race or nation to which the victims belongs, gender, sexual orientation or identity, illness or handicap of the victims". The same article penalizes those who, aware of its falsehood or in wanton contempt for the truth, disseminate injurious information about these groups for the mentioned reasons. The implementation problems with respect to art. 510 arise because the article talks about "provoke", which is the need to prove the cause / effect, and not "incite".
Punishable are further illicit associations, being those which promote discrimination, hate or violence against individuals, groups or associations out of racist, antisemitic or other kinds of discriminatory motives related to the victim’s ideology, religion or beliefs, family situation, the ethnic group, race or nation to which the victims belongs, gender, sexual orientation or identity, illness or handicap of the victims, or which incite to these acts (art. 515.5 Criminal Code).
Moreover, article 525 of the Criminal Code penalizes those who, with the intent to offend the feelings of the members of a religious confession, publicly mock their dogma’s, beliefs, rites or ceremonies, be it orally, in writing or by means of any kind of document, or publicly harass those who profess or practise them. The same penalties apply to those who act in this way against those who do not profess any religion or creed.
Article 607, included in Chapter II on offences related to genocide, penalizes those who, with the intent of fully or partially destroying a national, ethnic, racial or religious group, disseminate by any means ideas or doctrines justifying crimes of genocide or seek the rehabilitation of regimes or institutions which support practices leading to crimes of genocide. It should be pointed out that the Constitutional Court in Judgement 235/2007 of 7 November 2007 declared unconstitutional the provision contained in article 607.2 of the Criminal Code, which penalizes as an offence the denial of genocide, considering that this conduct, if not expressed by way of insult, is protected by the freedom of speech. The Court indicated that the declarations should contain elements that incite hatred against a specific racial group or at least represent a clear contempt.
On 17 September 2010 Spain published the ratification of the Convention on Cybercrime and its Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, done in Budapest on 23 November 2001. The Convention entered into force in Spain on 1 October 2010. The text of the ratification does not contain any reservations to the Convention. It does however contain a declaration regarding the application of the Protocol to Gibraltar as a dependent territory of the United Kingdom. |