Spain's ruling Popular Party and the opposition Socialist Party are currently working together on a National Agreement that will include a series of legislative measures, supposedly to combat jihadist terrorism. The agreement is based upon the inclusion of two amendments regarding the crimes of terrorism in the penal code. Rights International Spain has analyzed these amendments and, alarmed by what might constitute an illegitimate blow to the fundamental rights of the entire citizenry and the basic principles of the rule of law, the organization has approached the justice and interior ministers, as well as the spokesperson of the Socialist Party, to make known its concerns in this regard, hoping that the measures they finally agree upon respect the norms and principles of international human rights law. Some of the concerns are the following:
Absence of a genuine review process of the definitions of terrorism: The UN special rapporteur for the promotion and protection of human rights and fundamental liberties in the struggle against terrorism, after his visit to Spain in 2008, recommended that the government "establish a process through which independent experts might review the suitability of the definitions in use. Specialists in human rights and penal law at national and international levels should participate in this review process." This was never undertaken.
International standards that govern the restrictions of rights: Any measure that repeals or suspends civil rights and liberties should strictly fulfill certain requirements: that the rules be accessible, predictable and precise; that the restriction of rights be justified; that the restriction be necessary in a democratic society; that restrictions be proportional to the objectives they pursue and the reasons which impel these; and that they not be discriminatory. The proposed reforms do not respect any of these standards: they deepen the already existing imprecision in the law, they do not justify all measures (or the justification is insufficient), and some of the regulations are disproportionate.
Lack of precision in the definition of terrorism: The reform proposed by the Popular Party disproportionately broadens the catalog of crimes that may be considered terrorism, without providing any justification.
Presence of indeterminate and vague concepts, in conflict with principles of legality: Throughout the amendments proposed by the Popular Party, excessively vague and imprecise concepts are used, in conflict with the requirements of predictability, clarity and proportionality.
Lack of an element of terrorist intention: The amendments propose, broadly and imprecisely, that acts be prosecuted as crimes of terrorism even without the necessary link to terrorist intention. They even explicitly include some crimes committed in recklessness, which conflicts directly with the fact that intentionality is one of the essential elements in defining crimes of terrorism. These measures are justified on the basis of the supposed "difficulty of proof." This constitutes a violation of essential principles of the rule of law. We must ask ourselves: how could a crime of terrorism be committed without the intention to do so, or worse yet, by recklessness? These are therefore disproportionate definitions.
Consulting websites and the right to freedom of information: Prison sentences of one to eight years will be applied for "consulting one or various communication services available to the online public" which contain information that might "incite others" to commit crimes of terrorism. Punishing this conduct is totally disproportionate and unjustified, and moreover violates the right to liberty of information.
Possible threat to the freedom of expression: The amendments propose punishing (even more severely than at present) crimes of "glorification of terrorism." However, the special rapporteur for the protection and promotion of human rights and fundamental liberties in the struggle against terrorism already warned Spain of the problems derived from the imprecision of the term "glorification," especially with regard to freedom of expression. To this end, he recommended revising the text such that "it applies exclusively to those acts intended to incite the committing of a terrorist crime, with the risk that this crime indeed be committed," a revision which has never been undertaken. The amendments also prosecute the distribution or diffusion of messages or slogans through any media or other outlet, "whether or not they directly promote or not the committing" of terrorist crimes, when "they have the goal of inciting others to commit" such crimes, "or else reinforce the determination to commit them," or, due to their content, might be suitable for inciting others to commit crimes. In addition to being broad and imprecise, this ruling conflicts directly with the freedom of expression. As the rapporteur pointed out, for something to be considered incitement, it must entail a real risk that the terrorist crime indeed be committed; the proposed reform does not specify this.
It is very troubling that actions that should not be considered "crimes of terrorism" are categorized as such. In addition to threatening fundamental rights in some cases (such as the freedoms of expression and information), all of these measures constitute, by virtue of their imprecision and vagueness, a violation of principles of legality and therefore an erosion of the rule of law. If rights and liberties are not respected, a democratic society cannot be considered secure, and rights and liberties cannot be considered, under any circumstances, to constitute terrorism.
