In Spain, it’s a crime to insult the monarchy and Spanish state, blaspheme the church, burn the state flag and sing songs lauding violent groups such as ETA and GRAPO. The persecution of Spanish rappers for their hard-core violent lyrics against the Spanish state is testing the country’s limits on freedom of expression.
(CN) — One Spanish rapper — Pablo Hasél — sits in prison. His crime? Militant statements and lyrics angrily advocating an end (violent, if necessary) to Spain’s monarchy and corrupt politicians. Another militant Spanish rapper — known as Valtònyc — is in self-exile in Brussels, the capital of the European Union. Why? Spain wants to imprison him too for his politically violent and anti-government lyrics.
These two rappers with their radical left-wing and pro-republican politics are Spain’s most high-profile figures in a debate as old as human civilization: What are the limits on expression?
In Spain, a lot is off limits and the recent jailing of Hasél has turned the Iberian peninsula into a central battleground in Europe over freedom of expression.
Europe’s laws on free speech are more restrictive than in the United States, where the First Amendment provides extensive and near-absolute protections for speech, even for many violently offensive, slanderous, hate-filled and controversial statements.
European law, on the other hand, is based on international standards as spelled out in the 1953 European Convention on Human Rights and the 1966 International Covenant on Civil and Political Rights, a treaty on civil and political rights adopted by the United Nations General Assembly. These international standards allow more restrictions, and consequently people in Europe have been prosecuted for denigrating minorities, denying the Holocaust, displaying Nazi symbols and rapping in support of militants.
“There is a certain understanding of European countries as being very tolerant or really honoring the sort of core republican or liberal values, but in practice this isn’t as true as we sometimes would like to think,” said Emmy Eklundh, an expert on Spanish politics at Cardiff University, in a telephone interview. “If you start digging in Spain or in France, then you will see that there are quite a few restrictions to these freedoms for regular citizens.”
In part, the narrower understanding of free speech is meant to foster tolerant democratic societies by rooting out evils from Europe’s past, such as the horrors perpetrated by Nazi, Fascist, Marxist and religious ideologies. But it’s a delicate balance and often it can seem that Europe is unable to escape a history of repressive statist power.
In Spain, the criminal code is so protective of officialdom that it’s a crime to praise terrorists, insult the Spanish king and state, burn the Spanish flag and desecrate state symbols, blaspheme the church and defame government officials. Civil laws also restrict unauthorized protests.
It’s not only in Spain where concerns are growing over limits on expression. Across Europe, free speech advocates and scholars warn that governments are using old laws and passing new ones to dangerously curtail the right to protest and convey controversial opinions. In response, it’s become common for people in France, the United Kingdom, Germany and elsewhere to take to the streets and decry what they see as attacks on their fundamental rights. Anger and tensions over such restrictions have only grown since lockdowns were imposed to control the coronavirus pandemic.
“Even before the pandemic, there were concerns around freedom of expression,” said Marco Perolini, a researcher for Amnesty International, in a telephone interview. “With the pandemic, there have been even more restrictions that have been adopted for public health reasons, but the problem is that many of these restrictions were disproportionate.”
Spain is where the fight over freedom of expression is particularly intense and the Feb. 16 arrest and jailing of Hasél, a 32-year-old Catalan rapper from an upper-class family whose real name is Pablo Rivadulla Duró, was a pivotal moment.
His arrest sparked nights of violent anti-government protests, mostly involving young people, and put more pressure on Spain’s left-wing coalition government of Socialists and Unidas Podemos, a party with communist sympathies, to overhaul the criminal code.
For years, Hasél had been challenging the limits of Spain’s laws with his hardcore songs and statements against Spain’s ruling class and his support for an armed communist uprising to bring down Spain’s constitutional monarchy.
He was first arrested — and quickly released on bail — in 2011 for a song in which he called for the release of Manuel Pérez Martínez, a Spanish communist leader known as “Comrade Arenas” who was imprisoned in 2000 for his alleged connection to GRAPO, the acronym for a clandestine communist terrorist group whose name translates to the First of October Anti-Fascist Resistance Groups. The group claimed more than 80 victims between 1975 and 2006.
Hasél’s arrest in October 2011 came during a year of mass protests in Spain against soaring unemployment and austerity measures following the 2007 financial collapse and the Great Recession, which hit Spain and the rest of southern Europe hard as governments slashed pensions and public services to stay within spending limits imposed by the European Union.
As anger and the so-called Indignados protest movement in Spain grew (it was akin to the Occupy Wall Street protests in the United States) and spread across Europe, more Spaniards found themselves falling foul of their country’s criminal code restricting what can and can’t be said.
In 2013, 18-year-old student Cassandra Vera posted tweets that joked about attacks by Euskadi Ta Askatasuna (the Basque Homeland and Liberty, or ETA), a paramilitary terrorist group seeking independence for the Basque Country. Over the span of four decades, ETA killed more than 800 people before announcing an end to its terrorist campaign in 2011.
Vera was prosecuted and convicted of glorifying terrorism and humiliating victims of terrorism. Spain’s Supreme Court later acquitted her.
In 2016, two puppeteers were jailed for five days in Madrid after they staged a violent children’s Carnival show in which a judge was lynched, a nun raped and they held up a placard that read: “Long live Al Qaeda-ETA.”
In February 2017, singer-songwriter Baltasar Adolfo was convicted of glorifying terrorists through his songs praising ETA and GRAPO and envisioning the then-King Juan Carlos I lynched in a town square. His conviction was upheld by Spain’s Supreme Court a year later.
Then in February 2018, Spain’s Supreme Court upheld a 3 ½ year sentence against another rapper called Valtònyc, whose real name is Jose Miguel Arenas. When he was first arrested in 2012, Valtònyc was found crossing the line by recording songs praising ETA and GRAPO and calling for violence against politicians and the royal family. Instead of serving the sentence, he fled to Belgium. He’s fighting extradition to Spain.
With Spain’s protest movement not letting up, Spain’s right-wing government passed new laws in 2015 further restricting the right to assemble, including a ban on impromptu and unauthorized protests. The new administrative laws also included anti-immigration measures. Disturbingly, they also restricted the filming and photographing of police, though Spain’s Constitutional Court later struck these portions down. The controversial law — dubbed the “ley mordaza,” the gag law — sparked condemnation.
“If you want to be a bit cynical about it, you would say that this law was implemented in order to curb those protests,” Eklundh said. “At least from my perspective, this is not entirely untrue.”
She added: “You can also be fined for drinking outside, which is sort of a common thing in Spanish street culture where you would have a party-slash-protest. That is also illegal since 2015.”
She said the “ley mordaza” was seen as a dangerous return to the kind of repressive laws passed during the dictatorship of General Francisco Franco.
“During the dictatorship, we had a criminal code that was very, very repressive,” said Joan Barata, a Spaniard and expert on human rights law and freedom of expression at the Stanford Center for Internet and Society, in a telephone interview. “It included crimes such as adultery or something called public scandal; doing inappropriate things in public.”
After Spain transitioned from a dictatorship to a democracy following the death of Franco in 1975, its criminal code contained articles making it a crime to insult the government and desecrate state symbols. In a sense, the ghost of Franco still hung over the new Spanish state.
“In many countries, you had a long and deep engagement with the atrocities that were committed by the dictatorship,” Eklundh said. “In Spain, that hasn’t been the case and it has had a very large impact institutionally.”
She said the Spanish police force, the Guardia Civil, was not overhauled or abolished, allowing Franco-era police to remain in power and continue enforcing repressive anti-democratic tactics. Similarly, Spain’s judicial benches continued to be peopled by Franco-era judges. Indeed, a judge called Nicolás Poveda Peñas who convicted Hasél was a member of Franco’s fascist Falange organization and a senate candidate for the party in 1979.
“There hasn’t really been a reckoning with the past or with how the Spanish state hasn’t treated its citizens particularly well in the past,” she said. “There’s isn’t a break, in this sense, from this authoritarian past; there is a lot of continuity that leads up into this day really.”
Generally, conservatives in Spain support a strong police authority and see the laws restricting free speech and protecting the state as good. Seen in this light, the 2015 gag law was an extension of the traditional law-and-order creed exposed by Spain’s conservative politicians.
“It is something that should be cherished because you have to keep citizens in check ultimately,” she said about conservatives’ views. “It’s not politically strange, it’s not out of the blue, but it’s in line with how much of the center-right and right-wing politicians have presented law-and-order issues for many decades.”
Nonetheless, Barata said Spain’s relatively recent past as a fascist dictatorship doesn’t entirely explain why the country’s criminal code is so regressive.
“In truth, we can’t blame history for what we have in the criminal code because the criminal code has undergone several reforms,” he said. “Some of the crimes that are so controversial have been introduced in the course of the last ten years.”
He said lawmakers from both the right and left of the political spectrum have made Spain more repressive as they passed laws to fight terrorism, broaden the definition of hate speech, control hurtful activity on social media and protect the monarchy as an institution.
“Left- and right-wing majorities have had the opportunity to change the criminal code and when they have changed it, they have changed it for worse,” he said. “They haven’t used the opportunity to introduce let’s say more liberal provisions or to align the provisions with international standards.”
Spain has long resisted demands from Europe’s human rights court and organizations to do away with its suppressive free speech laws.
As far back as 1992, the European Court of Human Rights issued a landmark ruling against Spain over its prosecution of a Basque Country lawyer and politician called Miguel Castells.
In June 1979, Castells, a member of the pro-independence Basque party Herri Batasuna, wrote an article in the “Punto y Hora de Euskalherria” weekly magazine alleging Spanish officials were unwilling to prosecute perpetrators of deadly terror attacks in the Basque Country and suggested they were even complicit in the attacks.
After the article was published, Castells was charged with insulting the government and sentenced to a year in prison. Castells turned to the European Court of Human Rights and in 1992 the Strasbourg-based tribunal ruled that Spain violated his right to free expression.
Similarly, in 2011 the human rights court ruled that Spain violated the free speech rights of a Basque politician, Arnaldo Otegi Mondragon, when it prosecuted and convicted him for holding a news conference in 2003 in San Sebastián where he accused the then-King Carlos, as the commander-in-chief of the Spanish army, of being in charge of “torturers” and imposing “his monarchical regime on our people through torture and violence.” The Supreme Court found him guilty of insulting the king.
Otegi Mondragon’s tirade against the king took place after a Basque newspaper was raided by police for alleged ties to ETA and on the same day that the king was visiting the Basque Country for a ribbon-cutting ceremony at a power station.
More recently in 2018, the human rights court ruled that Spain violated the free speech rights of two men who were fined for burning a large photograph placed upside down of the king and Queen Sofia as part of protests during an official royal visit to Girona in 2007. The protesters were advocating Catalan independence.
Despite these rulings, insulting the crown and the state remain a crime in Spain.
Barata said international pressure is building on Spain to reform its laws. In March, the Council of Europe, a judicial body that set up the European Court of Human Rights, called on Spain to decriminalize defamation and religious insults and to modify its laws against insulting the state. Last year, the United Nations Human Rights Council also found fault with Spain’s restrictive laws.
With a left-wing government in power, there is a chance for reform. Recently, the ruling center-left Socialist party said it would propose amending laws that criminalize the glorification of terrorism, insulting the state and offending religious sentiment. Their coalition partners, the far-left Unidas Podemos, wants to repeal those laws altogether.
But Barata was doubtful the center-left government, with such a slim majority in parliament, will be able to carry out changes to the criminal code, even though both the Socialists and Podemos are keen to be seen as the champions of free speech.
“I see there is a kind of competition between the two of them in order to look progressive,” he said. “But we still haven’t seen any clear project in this sense.”
He suspects the issue will slip off the radar as the furor over Hasél’s jailing quiets down. Hasél’s supporters are still holding protests, but they are on a small scale now.
“This is very common in Spain, unfortunately,” Barata said. “All of a sudden, there’s a spike , everybody is talking about something and the government is saying: ‘No, we’re preparing a law, this will change it.’ But then, of course, the priorities change and then we start talking about something completely different.”
Courthouse News reporter Cain Burdeau is based in the European Union.