Supreme Court judgment 354/2017 of 17 May 2017, Roj: STS 1883/2017 - ECLI: ES:TS:2017:1883
- 2017
- 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)Courts
Supreme Court, SpainLaws
Freedom of Expression Freedom of religion or beliefFacts
The case concerns a Moroccan, living in Spain who since August 2015 was detained, until, in April 2016, he had been come increasingly radicalized. His radicalisation was manifested in his Facebook profile where he published messages, photos, images and videos to further the cause of the Islamic State. When he was detained his mobile phone was confiscated. In it many of these materials had been saved, including messages. On 16 November 2016, the Audiencia Nacional convicted him for the crime of self-indoctrination for terrorist purposes to serve an imprisonment of 2 years and 6 months as well as absolute disqualification for 9 years, replacing the deprivation of liberty, once two thirds of it have expired, also expelling him for six years from Spanish territory, as well as a measure of probation for a period of 5 years, once he obtains his freedom if he returns to Spain. All this with express imposition of the payment of the procedural costs caused in the proceeding. In its judgment the Audiencia Nacional changed the determination of the crime to a graver one than the Public Prosecutor had charged the convicted with, namely, the crime of exaltation of terrorism. The convicted formulated a cassation appeal to the Supreme Court.
Legal grounds
Article 575.2 of the Penal Code (crime of indoctrination); Article 578 of the Penal Code (crime of exaltation of terrorism).
Findings
The Supreme Court decides to absolve the convicted (claimant in the case) for the crime of indoctrination and instead convict him for the crime of exaltation (glorification or justification) of terrorism. Crime of self-indoctrination: 1) As a point of departure, the Court notes that unlike other reforms of the Penal Code in 2015 in the light of international legal developments, the offence of indoctrination is not included in any provision of relevant UN Security Council resolutions, among them Res. 2178 of 2014. Neither is the offence mentioned in EU regulations or in the Council of Europe Convention on the Prevention of Terrorism. In fact, the Council of Europe rejects explicitly the idea of criminalizing self-indoctrination for terrorist purposes (FJ1). 2) The new crime deviates from what is traditionally understood as delinquent behaviour in this context whereby the active subject indoctrinating and training new members of terrorist organizations was prosecuted criminally. Because of the new forms of recruitment of militants of jihadist terrorist organizations, where the internet plays a fundamental role, the 2015 reform criminalizes passive behaviour, that is, those who receive such indoctrination or training. The Court distances itself from this new crime when noting that it is strange to equate punitive behaviour with such differential risks, from the conduct of those who receive training in practical military or combat skills, or in the development of chemical or biological weapons, or for the manufacture of explosives, on the one hand, with those who receive mere ideological formation (FJ1.5). 3) The Court notes that the objective element of the new crime requires either habitual access to the internet or acquisition or possession of documents. In relation to the latter the requisite “habitual” is absent and there is no indication that the person accused of the crime have actually read the documents in his possession. 4) The subjective element of the crime relates to the specific intent required by law. Accessing documents in the Internet may be done not only to prepare the commission of terrorist acts included in the Spanish Penal Code, but also for investigative purposes or out of mere curiosity or to commit other crimes. There is no clarity in the law as to the evidence required in this regard. The Court concludes that in any event the mere content of the internet pages examined or of the documents possesses is not sufficient since it would come into conflict with ideological freedom and the right to information (FJ2). 5) In the light of these considerations and the fact that “the feeble personal contribution of the accused determines a special detachment of the videos and photographs incorporated into his Facebook page” and associated with Islamic terrorism, also including other content related to religious teachings or doctrines that do not involve the violent defence of terrorism (FJ4). Crime of exaltation of terrorism: 1) In its interpretation of the meaning and scope of this crime, the Supreme Court reiterates what was upheld by the Constitutional Court, in its judgment 112/2016 that the crime in focus only “supposes a legitimate interference in the scope of the freedom of expression of its authors insofar as they can be considered as a manifestation of the speech of hatred for encouraging or encouraging, even indirectly, a situation of risk for the persons or rights of third parties or for the system of liberties“. 2) As stated in the explanatory report to Article 5 of the European Convention on the Prevention of Terrorism, the crime refers to public provocation to commit terrorist crimes (defined as the dissemination or any other form of making messages available to the public with the intention of inciting terrorist crimes), when that behaviour, whether or not directly advocating the commission of terrorist crimes, creates a danger that one or several crimes of terrorism will be perpetrated. According to the same explanatory report, the opinion of the Parliamentary Assembly of the Council of Europe suggested that this norm should cover “the dissemination of messages of praise of the perpetrator of an attack, the denigration of the victims, the call to finance terrorist organizations or other similar behaviours” that could constitute acts of indirect incitement to terrorist violence. Moreover, the recent Directive (EU) 2017/541 also typifies in its Article 5 the public provocation to the commission of a terrorist offence that according to its recitals 10, includes, among other acts, “the apology and justification of terrorism or the dissemination of messages or images, whether online or not, among them those related to the victims of terrorism, in order to obtain support for terrorist causes or to seriously intimidate the population". As held by the Court, the European standard requires the existence of a risk that these acts incite terrorist violence (FJ4). 3) The Court finds that the evidence in the present case shows that the claimant has not merely made available mere information about terrorism on Facebook neither does it simply consist of the mere public dissemination of its messages and slogans. Rather, he transcends it into a sophisticated and refined interrelation of iconographic, filmic and even supposedly lyrical languages, becoming approved and justified by the war of the Islamic State and its expansion through terror and weapons against all infidels in any place. Hence, the application of Art. 578 to the present case (FJ5).