Audiencia Nacional, 3/2018, judgment of 26 June 2018, ROJ: SAN 2756/2018 ECLI: ES: AN:2018:2756
- 2018
- Spain
Topics
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
Right to a fair trial ProportionalityFacts
The case has its origin in an AN oral judgment n° 7/2017 of 6 April 2018 in which Ms. XX was convicted as responsible for the crime of self-indoctrination in terrorism (Art. 577.2 of the Penal Code) to 2 years and 1 day of imprisonment as well as to the disqualification from the exercise of the right to vote during the period of imprisonment, and the absolute and special disqualification from the educative profession in the ambit of teaching, sport and leisure time, for a period of 8 years and probation for 5 years. At the expiration of 2/3 of the imprisonment (16 months) the penalty is substituted for expulsion from Spanish territory with no possibility of return during 5 years following the date of expulsion. Ms. XX is an adult foreign citizen with no previous criminal record who since at least 2014 had been immersed in an intense radicalisation process into Jihadist terrorism and detained as part of the Caronte operation (AN case n° 5/2015). Ms. XX was intensively engaged in the publication and dissemination of DAESH propagandist contents, especially on YouTube, Facebook and Instagram, and using images of the same kinds in her WhatsApp and Telecom profiles. In this process she proclaimed publicly her full allegiance to the DAESH doctrine, stimulating her wish to integrate fully into this terrorist organization and collaborate actively and regularly with the Islamic State through the dissemination of its postulates. She interiorized fully the Jihadist goals propagated by DAESH without critically examining its premises. During months she published messages that were destined to convince others of the Jihad and propagating the goals as legitimate, desirable and laudable. Likewise, she discredited Christians, Jews and Shiites, known enemies of DAESH. She was detained on 5 April 2017. Against the AN judgment n° 7/2017 of Ms. XX formulated a right to appeal for violation of Article 9.3 (prohibition on arbitrariness of public power) and Art. 24 (legality principle) of the Spanish Constitution as well as Art. 89 (undue application) of the Penal Code on the basis that the judgment does not respect the agreement, going beyond the text of the penal law, without any motivation as to why she has to serve imprisonment before being expelled. With respect to conformity judgments (sentencias de conformidad) the AN noted that they are in principle not possible to appeal to the extent that they amount to a renouncement of the part related to the development of an oral judgment by virtue of the conformity of the written accusation and the penal sanction. Such conformity assumes the acceptance of the facts and the waiver of the realization of the proceeding and can depend on different motives, ranging form the absence of interest in its realization, to the acceptance of criminal responsibility with the possible reduction of the sanction that may have been negotiated with the Public Prosecutor to avoid the conduct of criminal proceedings. The judgments in these are generally not possible to appeal if they comply with the formal, material and subjective requirements established by law and respect the terms for this conformity (…).Evidently, the character of the criminal justice system is preferably public and so the conformity is nothing more than the recognition of a certain capacity of disposition in favour of the persons concerned which cannot amount to the violation of the rights of the accused and must respect the established limits by law. In these cases, the judgments include a detailed account of the exact terms of agreement without deviating in any way from what has actually been agreed. In this case, the AN finds that the agreement is a reduction of the period of imprisonment established in Art. 575 of the Penal Code. Finally, the expulsion is in line with Art. 89.1 of the Penal Code since the convicted is a foreign citizen. According to this provision, “prison sentences of more than one year imposed on a foreign citizen will be replaced by their expulsion from Spanish territory. Exceptionally, when it is necessary to ensure the defense of the legal order and restore confidence in the validity of the rule infringed by the offense, the judge or court may agree to execute a part of the sentence that may not exceed two-thirds of the time, its extension, and the replacement of the rest by the expulsion of the convict from Spanish territory. In any case, the rest of the penalty will be substituted for the expulsion of the convicted person from the Spanish territory when the third degree is granted or the conditional freedom is granted”.
Legal grounds
Article 89 (undue application) and Article 577.2 of the Penal Code (self-indoctrination in terrorism); Article 9.3 (prohibition on arbitrariness of public power) and Article 24 (legality principle) of the Spanish Constitution.
Findings
Rejection of the appeal and confirmation of AN’s oral judgment of 6 April 2018.