Prosecutors must assess the "intentionality" with which a person has broadcast a message that can be considered discriminatory before making an accusation against it, as ordered by the State's Attorney General, María José Segarra, in a circular in which they indicate the guidelines for interpreting hate crimes.
In that document, dated yesterday, Segarra recalls that the latest indicators "point to an increase" in these crimes due to the increasing use of information and communication technologies. "The Public Prosecutor could not remain oblivious to this reality," he says.
The Attorney General met at the end of last November with the prosecutors specializing in hate crimes to study the response criteria on this matter, which have now been released. At that time, he urged them to promote a "proportionate, guarantee and dissuasive" criminal response to this type of conduct, as well as to a "peaceful reflection", reports Ep.
All this comes after known cases such as that of the tweeter Cassandra Vera, who posted on Twitter a joke about Luis Carrero Blanco, killed by ETA in 1993, and who was acquitted by the Supreme Court; or the file of the case against the humorist Dani Mateo, whom the prosecution accused of a hate crime by pretending to blow his nose with a Spanish flag. But also, the sentence of one year of prison imposed by the high court to the singer César Strawberry for a tweet about the death of the admiral or the two sentences against the rapper Pablo Hasel for glorification of terrorism.
The circular, 88 pages, explains that hate speech is not covered by freedom of expression and this can not be placed "on a plane of superiority" when it comes to "a behavior oriented towards sectarian discrimination against a certain group or its members ». He adds that with this criminal conduct "mere ideas or opinions are not sanctioned, but the manifestations of hatred that denote a contempt towards another human being, for the simple fact of being different".
Even so, the Public Prosecutor considers that it is necessary that the "discriminatory motive" have a "cause-effect relationship with the conduct carried out", that is, it must be "proved not only the criminal act and the participation of the accused, but also the intentionality of the author "before presenting an accusation for behaviors reflected in article 510 of the Penal Code, such as humiliation, contempt or exaltation, which can be punished with up to four years in prison.
Jurisprudence of the TS and TC
And, as stated in the document, there is jurisprudence of the Supreme Court and the Constitutional Court on the assessment of such crimes that indicate that it is "important not only the literal meaning of the words spoken, but also the meaning or the intention with which they have been used, since it is evident that the language ordinarily admits diverse interpretations ».
This doctrine also recognizes that "the context and circumstances that concur in each case must be taken into account", because "freedom of expression is at stake". For this reason, it is required "an individualized investigation work, with a rigorous analysis, that case by case, will have to examine both the concrete phrases or expressions produced as the occasion and the scenario in which they were pronounced".
On the other hand, among the guidelines it is indicated that "extreme caution should be exercised in the face of certain behaviors" in the event that the purpose is distribution, since in this case it will be necessary to assess whether the analyzed behaviors are capable of "generating a climate of hatred, hostility, discrimination or violence against certain groups ».