Supreme Court judgment 39/2018 of 16 January 2018, Roj: STS 39/2018 – ECLI: ES: TS: 2018:39
- 2018
- Spain
Topics
Terrorism 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
Supreme Court, SpainLaws
Right to a fair trial Right to respect for private and family lifeFacts
The case concerns a Moroccan student, with legal residence in Spain, who since the beginning of 2015, became increasingly radicalized, making public in DAESH-related social networks her conviction to do the Jihad. At that point she began to consider moving to an armed conflict zone controlled by the Islamic State (IS), to marry a mujahidin, and in in this way realize her own Jihad. In May and June 2015 she visited family in Morocco where she entered into contact with persons who strengthened her extremist convictions and commitment to emigrate to the IS. Once back in Spain she continued, now with more intensity, to disseminate IS propaganda through Facebook, Twitter, Youtube and Google +. She also maintained contact, including by phone, with persons in Morocco, Algeria and Syria. In these conversations she expressed her interest in travelling to an IS-controlled armed conflict zone and also encouraged her interlocutors to do the same. She facilitated information on how to make the trip and on some occasion even offered to facilitate money for the ticket. In July she accessed a chat forum called PALTALK managed by DAESH members. In August she renewed her passport and began to write farewell messages in her Facebook profile. On 5 September 2015, she was detained in her home in Gandía. On 17 March 2017, she was convicted by the Audiencia Nacional for the crime of collaboration with terrorism that carries the penalty of 5 years in prison, with absolute disqualification up to 6 years after the custodial sentence and probation for 5 years, and the payment of a quarter of the costs. However, she was absolved from the crimes of integration into a terrorist organization, self-indoctrination, and attempt to move to a foreign territory controlled by a terrorist organization. The Public Prosecutor and the convicted made a cassation appeal to the Supreme Court. The Public Prosecutor argued undue non-application of the crimes of recruitment and indoctrination as well as the crimes of self-recruitment and self-indoctrination. The convicted alleged violations of her rights to be presumed innocent, due process, among others.
Legal grounds
Article 572.2 of the Penal Code (recruitment and indoctrination, including self-recruitment and self-indoctrination); Article 572.3 of the Penal Code (transfer and establishment in foreign territory); Article 577 of the Penal Code (collaboration with terrorism); Article 24 of the Constitution (rights to presumption of innocence and due process with all guarantees).
Findings
The Supreme Court dismissed the claims of the parties on the following grounds: 1) In relation to the non-application of articles 575.2 y 575.3 of the Penal Code in the present case, the Court held that the two provisions which related to more specific crimes may be absorbed by the wider crime (article 577) depending on the facts of the case and that this follows from the principles of “unity of facts” and of absorption (FJ.II.2). 2) The Court stressed that with the introduction of the new crimes included in Article 572.2, Spanish criminal law has gone beyond sanctioning those who proselytize terrorist activity (Article 575) to “condemn also those who are placed as recipients of activities aimed at expanding the violent postulates of the terrorist group or conceived to train anyone in methods that facilitate the commission of attacks, provided that participation as a receiver of these teachings responds to a willingness to facilitate terrorism, and regardless of whether the instruction is directly sought or acquired by the active subject, or has been arranged and is provided by others” (Article 572.2). However, these new crimes share the same objective as the crime of collaboration with terrorism (Article 577), that is, “to prevent terrorist organizations from having a substratum of people who share their creed and who posses the aptitude to sustain in time, in an effective way, the criminal actions that characterize them” (FJ.II.4). 3) According to the Court, article 572.3 related to the transfer to foreign territory controlled by a terrorist organization sanctions an action that is preparatory to passive indoctrination, collaboration with a terrorist organization or the integration into such an organization, provided the behaviour consists of locating oneself in the place where that behaviour is attainable (to move or establish oneself in a foreign territory controlled by a terrorist organization). As a preparatory act, the behaviour must have relevance to the legal good that is protected. This requires “the displacement and settlement of the active subject in that territory with the intention of providing a collaboration with the terrorist organization that facilitates or enables it to carry out, improve or enhance its criminal activity, favoring its actions with information acts, surveillance, execution of attacks, concealment of its members, of training or even financially supporting their activity”. However, since it has only been established that the convicted wanted to transfer to marry, which is not the same as helping materially a member of a terrorist organization, and that her transfer was in the planning stage, this crime is not applicable to the present case (FJ.II.5). 4) In response to the alleged violation of the presumption of innocence due to insufficient evidence, the Court holds that for collaboration with terrorism it is sufficient that the legal good sought to be protected is threatened without having to be consummated and thus that all conduct that is oriented towards a result that is beneficial to terrorist aims as long as it has a content that shows capacity and efficacy in achieving the goal. For this there is sufficient evidence (FJ.III). 5) Concerning the alleged violation of due process with all guarantees due to the identification and investigation of a Facebook profile, the Court acknowledges that criminal investigations can enter into conflict with the rights to intimacy and secrecy of communications (article 18 of the Constitution). In line with its previous case law it stresses that the mere belonging to a terrorist organization, even if no concrete delinquent act has been perpetrated, or the mere possibility of collaborating with such an organization, legitimises the initiation of criminal investigation of the State since the police function extends to the preventative domain. In support of its claim it refers to Article 11 of the Law on Security Forces and Bodies (1986) according to which the police function is not limited to investigating crimes that have already taken place, but also to compiling, receiving and analysing data of interest for public order and security. The Court is “aware that the investigation of facts of this nature is very complex, because of the way in which they are generated, and because of the wide possibilities that the number of people who may be seduced by the preaching of religious fanatics may be unpredictable and totally random”. Such investigation is especially complex when the activity detected by the police and judicial proceedings “is embryonic without materializing, fortunately, in catastrophic results”. Therefore, “it is not reprehensible that the intelligence services or the police units, extend their investigations to a wide spectrum of people who could feel attracted by practices that incite violence in the name of religious beliefs” (FJ.IV).