Audiencia Nacional. 15/2018. Judgment of 11 May 2018. ROJ: SAN 1559/2018 ECLI: ES: AN:2018:1559
- 2018
- Spain
Topics
Terrorist recruitment Terrorism propagandaLegal bases
Spain: Penal Code (Organic Law No. 10/1995 of November 23, 1995, as amended up to Law No. 4/2015 of April 27, 2015) Spain: Constitution of 1978Courts
Audiencia Nacional (special and exceptional high court), SpainLaws
Freedom of Expression Security and public order Freedom of religion or beliefFacts
The case concerns two Moroccan adults (Mr. XX and Mr. XX2), without any previous criminal record. Mr.XX used the Internet (Facebook and YouTube) to publish and disseminate propaganda (message and videos) to incite the radicalisation to commit violent crime against certain persons or collectives. The disseminated material was anti-democratic, anti-Western, anti-Semitic, incitement to hate and violence that justify and provoke combative Jihadist Islamism that despises the victims. The activities of Mr. XX are brought to the attention of the Spanish police as a result of knowledge of two young women who have become radicalized and as it turns out had a relationship with the accused, and who are offered money to travel to Syria via Turkey to integrate into DAESH. In one of the cases the parents contacted the police. Mr. XX2 sends money (7.271,50€) to a person in Turkey to prepare the trips to Syria.
Legal grounds
Article 577.2 (indoctrination in terrorism), Article 575.2 (self-indoctrination) and Article 578 (exaltation of terrorism) of the Penal Code; Article 20 (freedom of expression) and Article 16 (ideological freedom) of the Spanish Constitution.
Findings
The AN finds that the two accused have been realizing conducts that must be qualified as active indoctrination in line with Article 577.2 of the Penal Code. It also finds that the accused are responsible for passive indoctrination according to Article 575.2 of the Penal Code. In support of this finding it alludes to relevant jurisprudence of the Supreme Court (STS 13/2018 and STS 354/2017). As regards the exaltation of terrorism criminalized in art. 578 of the Penal Code, it also relies on the jurisprudence of the Supreme Court (STS 354/2017). In this context, it notes that the punishment of the glorification of terrorism reflects the prohibition of hate speech in line with the jurisprudence of the ECHR (e.g. SSTEDH, XX vs. Turkey, 8 July, 1999, and XX vs. Turkey, 4 December 2003); the Spanish Constitutional Court (STC 235/2007, 7 November 2007) and the AN (STS 812/2011, 21 July 2001) in that such behaviour does not deserve the protection of fundamental rights, such as freedom of expression (Art. 20) or ideological freedom (Art. 16) of the Spanish Constitution. This is so since terrorism constitutes the most serious violation of the human rights of the community that suffers from it and since the discourse is aimed at the extermination of the different, the most absolute intolerance, the loss of political pluralism and, ultimately, generating a collective terror, which is the means by which these purposes are pursued (STS 224/2010, 3 March 2010). Thus, the ample space that is endowed with ideological freedom has "no more limitation, in its manifestations, than that necessary for the maintenance of public order protected by the Law" (Article 16.1 Spanish Constitution) (FJ3). However, the AN then also recalls that passive indoctrination and exaltation of terrorism are crimes subordinated to active indoctrination. The present case concerns conducts that are not limited to passive indoctrination or exaltation of terrorism since, as regards exaltation, the acts in the present case also manifest humiliation of the victims, anti-Semitism leading one of the young women to wish the death of Jews. Exaltation is thus understood as a phase of the crime of active indoctrination (FJ7). Both accused are convicted for the crime of active indoctrination to serve 8 years of imprisonment, absolute disqualification from educative profession for a period of 10 years and probation following the completion of the period of imprisonment.