Rights International Spain has published a report assessing Spain’s jurisprudence relating to the crime of glorification of terrorism (Article 578 of the Spanish Criminal Code). The report analyses court decisions from when the reform of the Criminal Code chapter on terrorism offences came into effect in 2015. There are two reasons the report focuses on this time period. Firstly, because prosecutions of the crime of glorification of terrorism sharply increased from 2016-2018 and, secondly because in 2015 amendments broadening the reach of Article 578 took effect in Spain.

It has been five years since the amendments took effect on 1 July 2015, making an assessment of their impact timely. It has also been more than three years since the EU issued Directive 2017/541 on combating terrorism. This directive contains a provision on glorification of terrorism and requires the European Commission to assess it in 2021. This study will also be relevant for the European Commission’s assessment report.

The findings of the report show major problems but suggest a way forward

Since 2015, Spain has seen a sharp rise in the number of prosecutions for the crime of “glorification or justification” of terrorism under Article 578 of the Spanish Criminal Code.

Many twitter and Facebook users, rappers, poets, journalists and lawyers have been targeted under this provision, which was expanded in 2015 to encompass online “glorification or justification” of terrorism. The RIS report assesses this trend, and the associated jurisprudence of Spanish courts, from a human rights perspective. It finds that several Spanish court decisions are inconsistent with international human rights law governing the right to free expression. However, some of the court decisions that do conform to human rights standards suggest avenues for reform.

Article 578 of the Spanish Criminal Code, which was amended in 2015, does not conform to international legal standards. It makes no mention of intent or causation of any danger of violence. The decisions analyzed in the report vary widely in the interpretation of the elements of the offence of glorification. This is not surprising given the vague language and nature of Article 578. However, there are some decisions that hew closer to international legal standards (intent, clear and imminent danger) than others.

Ambiguity and backsliding

The first finding is that the terrorist offences are too open and ambiguous. In court the same fact patterns can suggest membership or collaborating with a terrorist organisation, recruitment, indoctrination, self-indoctrination or glorification or justification of terrorism. These multiple legal qualifications and accusations often appear in the context of international terrorism case.

The same facts being used to make multiple accusations jeopardises the principle of criminal legality and the right to a fair trial.

In mid-2017, in their reasoning, courts started introducing the two elements necessary to establish whether the offence of glorification can be applied, namely: the need to objectively evaluate the existence of a risk and the intention of the perpetrator to incite violence.

However, in 2018 we observed that these concepts were being interpreted in restrictively. For example, what started as the corroboration of an objective risk being required, courts moved to requiring mere “suitability” for creating a situation of risk. This interpretation of risk falls far short of the standard required by the Directive.

Motivation defined by clarity of message, and courts restricting protections

Another part of the case law, in what represents a clear backward step, insists that the intention of the perpetrator is set by the content of the message, meaning that, if the message is clear, intention exists. This renders motivation and any kind of subsequent explanation irrelevant.

Another finding is that the Appeals Chamber of the National Court implements the broadest interpretation of the offence of glorification as well as the most restrictive and least protective interpretation of the rights of freedom of expression and opinion in all the decisions examined for this study. The Chamber relies on outdated case-law criteria in relation particularly to the elements of incitement and risk.

To sum up, the case law is so erratic, with such contradictory and unpredictable decisions, that it generates great legal uncertainty in violation of the principle of legality. Spanish courts, unlike the the ECtHR, which follows the line of real, concrete and imminent danger, opt for the application of an “abstract” risk concept that disturbingly advances the barrier of criminal protection. This could seriously affect the right to freedom of expression.