defending rights and civil liberties

#WithoutJustice

Criminal Code

* Video: interview with Elisa Veiga, Magistrate at the Chamber for Contentious administrative matters of the National Court on the disappearance of minor offences in the Criminal Code Draft Bill and administrative infractions in the Public Safety Act. (sp)

 


* Recommendations to Spanish Congress on the Criminal Code reform. (sp)

* RIS Legal Brief. "The Criminal Code Draft Bill: security measures, probation" (sp)

* RIS Legal Brief. "International Crimes are not addressed in the Criminal Code reform" (sp)

* RIS Legal Brief. "The criminalization of protest in the Criminal Code reform: restrictions to freedom of expression and peaceful assembly" (sp)

* Post in Agenda Pública: La "The Criminal Code reform: more punishment without reinsertion measures" (sp)

* Op-ed in El País: "Strengthening justice: the reform of the Criminal Code" (sp)

RIS Blog: "Observations of the UN Rapporteur on Freedom of Assembly to the Criminal Code reform and the Public Safety Law" (sp)

* Submissions to UN: "Joint Submission to the Universal Periodic Review of Spain" (sp)
 

The Criminal Code reform proposed by the Government is highly controversial. Firstly, there is no pressing need that justifies a criminal reform right at this moment. Secondly, the changes included in the reform will have a direct negative impact on citizens, restricting their rights and liberties. Thirdly, those crimes that should be included or modified are, in fact, missing.

The State can legitimately restrict some rights in order to protect security or public order. But restrictions should be proportional and truly necessary. Otherwise, they are no longer legitimate and admissible in a democratic society.

The reform includes several modifications concerning “crimes against public order”. This has been one of the most questioned aspects of the bill, as it is a means to criminalize social protest and puts at risk the rights to freedom of expression and peaceful assembly, afforded by both the Constitution, as well as human rights norms. Below you will find some of the most salient examples:

The reform includes the offense of “distribution or broadcasting through any means messages or slogans that incite the commission of crimes of disturbance of public order… or which serve to strengthen the resolve to carry them out.” The wording of this provision is far too vague, leaving a wide margin of interpretation. If, for example, before or during a demonstration somebody publishes a vehement message on a social network and consequently, an unrelated individual commits a violent act, could the former be considered liable for inciting disturbances of public order? This could be considered a crime of opinion, unacceptable in a democracy which has the duty to protect the right to freedom of expression.  

In order to introduce this crime of distribution of messages inciting to disrupt public order, the reform removes the crime described in Art. 559: serious disturbance of public order to prevent another from exercising their civil rights. The idea is to eliminate a provision under which the exercise of civil and political rights are protected, as part of the understanding that the prevention of the exercise of said rights constitutes an attack on social coexistence within a democratic society based on mutual respect for fundamental freedoms.

The reform also includes the crime of disrupting or disturbing the functioning of telecommunication services or public transport. This comes in reaction to peaceful protest actions like "Take the Metro", during which emergency brakes were simultaneously activated on several underground trains as a form of protest against rising ticket prices. No injuries or personal or material damages were reported.

The reform further includes the crime of occupying company headquarters or public institutions. Additionally, it is expected that the penalty shall be increased if such an occupation forms part of a social protest. In this way, they are attempting to criminalize sit-ins or other peaceful and symbolic acts held, for example, at the headquarters of a bank in protest of evictions.

They also want to modify the nature of public disorder offenses. Currently the law requires an action taken by a group which causes specific results (injury, damage, etc.). The reform seeks to do away with the requirement of causing specific results, replacing it with a mere reference to "acts of violence". However, the text does not explain the meaning of "acts of violence". The expression is far too broad and vague and could include almost anything. Equally, a mere threat may also be considered an offense and shall incur the same penalty faced by the actual commission of dangerous or damaging acts. Aggravating circumstances can also be considered to have occurred if the event is carried-out during a large demonstration or rally; this means that during cases of social protest this law could automatically apply, along with penalties that could result in up to six years in prison.

While social protest is criminalized, necessary reforms dealing with international crimes are not addressed. Spain has signed many binding international treaties that require criminalizing certain conducts in accordance with such treaties. These include, to name a few, torture or enforced disappearances as well the prosecution and punishment of those responsible for these acts. However, UN bodies have already stated on several occasions that current Spanish norms regarding some of these crimes are not in line with treaty provisions. For example, the Convention against Torture requires that this offense is punishable by appropriate penalties which take into account their grave nature. Currently, the most serious cases of torture carry a penalty of up to six years in prison. The same penalty the Criminal Code reform would include for threats to carry out acts of violence in a demonstration. With regard to enforced disappearances, the crime itself does not exist in the current Criminal Code, nor is it expected to be included in the amendment, despite its inclusion being expressly required by many international organizations.

The Criminal Code reform also seeks to modify security measures. These include "probation,” which consists of requirements or prohibitions judges may impose on an individual following the completion of his or her sentence. This measure was introduced into the Criminal Code in 2010 to protect victims of terrorism or in some cases of sexual abuse. However, the reform plans to expand the circumstances under which judges may impose this measure: specifically, all those crimes with a sentence of at least one year in prison. In other words, it can be applied to those who commit murder as well as those who are convicted for the “new crime” of distributing messages that could incite public disorder. Furthermore, the reform includes within the prohibitions or requirements a judge may impose: "establishing contact with specific people or members of a particular group, in the case of individuals who are suspected may potentially incite or commit further criminal acts. Said individual can also be forbidden from establishing relations with, provide employment, train or harbour any named individual.” This is outrageous: this would imply that anybody sentenced to one year in prison and once the sentence has been served, will find themselves forbidden from relating with friends or fellow association members, working with them, or even sharing an apartment. Also, this prohibition may last indefinitely, because the reform allows for its unlimited extension.