Introduction
The Court of Instruction Number One (1) of Torrevieja (Preliminary Proceedings no. 551/2020) has issued an order imposing a provisional measure of banishment from this town on a resident of Torrevieja, ABD, aged 61, along with a prohibition on leaving Spanish territory and the withdrawal of his passport.
The Case: A Controversial Video. Excerpt.
A few days ago, ABD published a video on YouTube claiming to be from Madrid, infected with COVID-19, and having traveled, like thousands of others, to Torrevieja to spend the quarantine, where he had “cleared out” the products of a well-known local supermarket; the recording, barely forty seconds long, ended with insults and offensive expressions against the inhabitants of this town, such as “fuck them” or “screw them“. This video went viral and prompted several calls to the local Civil Guard; the officers themselves confirmed that the calls were numerous and that those calling were seriously concerned.
Finally, ABD was arrested, at which point it was discovered that he did not even come from the Spanish capital but was a resident of Torrevieja. When asked about the video, he replied that it was a humorous video.
Beyond the moral consideration that this gentleman’s actions may deserve, the following will examine the hate crime he is charged with by the Judge; the banishment measure applied to him; and consequently, the need for correct argumentation and motivation in a judicial order or sentence.
Hate Crime. Elements of the Offense.
The Magistrate of the Court of Instruction Number One (1) of Torrevieja understands that ABD’s actions constitute a hate crime under Article 510.
The first section of the aforementioned provision lists the behaviors that constitute this crime, with the following being attributed to him:
a) encouraging, promoting, or inciting, directly or indirectly, hatred, hostility, discrimination, or violence against a group, a part thereof, or against a specific person by reason of their membership in it, for racist or anti-Semitic motives, or others relating to ideology, religion or beliefs, family situation, the membership of its members in an ethnic group, race or nation, their national origin, sex, sexual orientation or identity, for reasons of gender, illness, or disability; and
b) consisting of producing, disseminating, propagating, or facilitating access for other persons to content of this type, regardless of the medium used.
Hate Crime. Penalty.
This type of offense carries, in its second section, penalties of one to four years in prison and a fine of six to twelve months.
The Judge understands that sections three and four of this same article are also applicable, both of which provide for the application of the penalty in its upper half.
The first of these applies “when the acts have been carried out through a social medium, via the internet, or through the use of information technologies, such that it becomes accessible to a large number of people” and the second “when the acts, in view of their circumstances, are suitable for disturbing public peace or creating a serious feeling of insecurity or fear among the members of the group“.
The application of Articles 510.3 and 4 would therefore mean that the prison sentence would be three to four years and the fine nine to twelve months. This not only significantly increases the possible sentence but also renders ineffective the hypothetical possibility of avoiding prison due to a lack of a criminal record.
Debate: Classifying the incident as a hate crime.
Assuming the application of Article 510.1.a) is correct, the application of the corresponding Articles 510.1.b), 510.2, 3, and 4 poses no doubt, as it is true that it has been disseminated so that its message could reach a plurality of people, the medium is a social network, and it creates a generalized feeling of insecurity.
The latter could perhaps be challenged with good argumentation, but the general state of fear caused by the COVID-19 pandemic and the massive number of calls received by the local Civil Guard (in a town of fewer than ninety thousand inhabitants) would validate the application of this provision.
The point of debate lies precisely in fitting the statements made by ABD in his video into the objective type described in Article 510.1.a).
It must be remembered that, in essence, what is condemned by law here is the promotion of hatred, hostility, discrimination, or violence toward a collective. Regarding this, the order states the following: “the expressions uttered in the aforementioned VIRALIZED video through social networks not only clearly incite hatred toward the population of Torrevieja by repeatedly wishing that they ‘get fucked’ or ‘screw them’, wishing for a massive spread of the disease“.
Firstly, according to a literal reading of Article 510.1.a) itself, this promotion of hatred or violence must occur for “racist or anti-Semitic motives, or others relating to ideology, religion or beliefs, family situation, the membership of its members in an ethnic group, race or nation, their national origin, sex, sexual orientation or identity, for reasons of gender, illness, or disability“. However, in the video there is no reference whatsoever to any of these motives; the only reference is made regarding the population of a town, which does not seem to fit into the previous list.
Secondly, it is debatable whether a hate crime has been committed here because, as argued by the European Court of Human Rights, and according to J.A. Díaz López in his 2018 report for the Commission for the Monitoring of the Inter-institutional Collaboration and Cooperation Agreement against racism, xenophobia, and other forms of intolerance, a hate crime is understood to occur when it attacks collectives that are socially considered especially vulnerable. In fact, if directed against a single person, the ECHR clarifies that the crime does not arise from the offense to that victim, but from the incitation of hatred or violence against those in their group. It does not appear that the people of Torrevieja are a vulnerable collective in Spanish society.
Thirdly, one must ask what content in the video contains expressions that incite hatred. While he claims to have brought the virus to Torrevieja and utters various insulting expressions against its inhabitants, at no point does he encourage others to follow his example or to exercise violence against them; therefore, no incitement to hatred or violence toward the people of Torrevieja is observed.
Finally, a question arises: could there be a hate crime against people from Madrid? In the video, he emphasizes repeatedly that he comes from Madrid. Perhaps in this case it could be understood that discrimination exists toward a collective by reason of illness (as Madrid is one of the territories with the most COVID-19 infections), and one could also speak of expressions that incite hatred; for he points out that four thousand people from Madrid have done the same as him, framing them as agents causing future infections. However, in my view, the consideration of people from Madrid as a vulnerable group would still be missing.
Provisional Expulsion Order. Prohibition on Residence.
Before decreeing this measure, the Judge makes a reasoning starting with personal liberty under Article 17.1 of the Constitution, and then, alluding to the jurisprudence of the Constitutional Court and the Criminal Procedure Law, states that this fundamental right can be restricted in certain circumstances.
He then reviews the institution of provisional prison, discarding it, and finally arrives at Article 544 bis of the Criminal Procedure Law to prohibit ABD from entering Torrevieja. This article states that Judges and Magistrates may, “in a motivated manner and when strictly necessary for the protection of the victim, cautiously impose on the accused a prohibition on residing in a certain place, neighborhood, municipality, province, or other local entity, or Autonomous Community“.
Hate Crimes and Article 57 of the Penal Code.
Article 57.1 of the Criminal Code contains a numerus clausus list of crimes that give rise to a prohibition of residence.
These crimes are as follows: homicide, abortion, injury, crimes against liberty, torture and crimes against moral integrity, human trafficking, crimes against sexual freedom and indemnity, privacy, the right to one’s own image and the inviolability of the home, honor, property, and the socio-economic order.
It cannot be inferred that hate crime is included in the previous list; one might think it is contained within those against moral integrity, but these require an attack on a specific subject and not a collective.
Furthermore, this article continues by requiring that this measure may be agreed upon “taking into account the gravity of the facts or the danger that the offender represents“. It does not seem that any tangible danger exists here since, as already stated, the accused was not from Madrid, nor did he suffer from COVID-19.
Precautionary measure of banishment. Justification. Considerations.
According to the current criminal legal system, three requirements must be confirmed for the adoption of a precautionary measure: the measure must be necessary to prevent a risk, it must be suitable to prevent it, and it must be the least burdensome for the person who bears it—that is, the one that entails the least interference with their rights.
The court relies on the risks of flight and criminal recidivism to impose this measure, but it does not seem that prohibiting him from residing in Torrevieja will prevent him in any way from uploading another video to YouTube or speaking out again by any other means in terms similar to those used. Consequently, the suitability of this measure for the purpose of protecting victims—another of the purposes that Spanish criminal law grants to this type of measure—is not apparent either.
Finally, regarding the risk of flight, the author does not have sufficient elements to assess whether this risk exists or not, although the age of the accused does not seem to confirm such a thesis.
Francisco Javier Paredes Hermida
Preguntas frecuentes sobre delito de odio, vídeos virales y medidas cautelares penales
¿Qué es el delito de odio en el Código Penal?
El delito de odio sanciona determinadas conductas de fomento, promoción o incitación al odio, hostilidad, discriminación o violencia contra grupos o personas por motivos especialmente protegidos, como origen, raza, religión, ideología, sexo, orientación sexual, identidad sexual, género, enfermedad o discapacidad.
¿Cualquier insulto publicado en redes sociales es delito de odio?
No. La publicación de expresiones ofensivas, desagradables o socialmente reprochables no implica automáticamente la existencia de un delito de odio. Es necesario analizar si existe una verdadera incitación al odio, hostilidad, discriminación o violencia contra un grupo protegido por alguno de los motivos previstos legalmente.
¿Puede un vídeo viral agravar la responsabilidad penal?
La difusión a través de internet, redes sociales o medios que permitan llegar a un número elevado de personas puede tener relevancia penal en determinados supuestos. No obstante, debe examinarse el contenido del mensaje, su contexto, su alcance real y si concurren los elementos exigidos por el tipo penal aplicable.
¿Qué papel tiene el contexto en un posible delito de odio?
El contexto es esencial. No se valoran igual unas expresiones aisladas, una broma desafortunada, una amenaza real, una incitación directa o un mensaje capaz de generar temor en un colectivo vulnerable. También puede influir la situación social del momento, el alcance de la publicación y la reacción provocada.
¿Qué debe motivar un juez al adoptar una medida cautelar penal?
Una medida cautelar penal debe estar debidamente motivada. El juez debe explicar por qué la medida es necesaria, idónea y proporcionada para evitar un riesgo concreto, proteger a la víctima, impedir la reiteración delictiva o asegurar el desarrollo del procedimiento.
¿Qué es una medida cautelar de destierro?
La medida cautelar de destierro consiste en prohibir provisionalmente al investigado residir o acudir a un determinado lugar, municipio, provincia u otra entidad territorial. Al afectar a derechos fundamentales, debe acordarse solo cuando exista base legal, necesidad concreta y una justificación suficiente.
¿Puede imponerse el destierro en cualquier procedimiento penal?
No. La prohibición de residir o acudir a un lugar determinado debe estar legalmente prevista y vinculada a los fines de protección o prevención que justifican la medida. Además, debe valorarse si el delito investigado permite esa medida y si resulta proporcionada al riesgo que se pretende evitar.
¿Qué significa que una medida cautelar sea proporcionada?
Significa que no basta con que la medida sea posible: debe ser adecuada para el fin perseguido, necesaria porque no exista otra menos gravosa y equilibrada en relación con la gravedad de los hechos y los derechos afectados. La proporcionalidad es clave en cualquier restricción de libertad.
¿Por qué es importante la defensa penal desde el inicio?
Porque en las primeras fases del procedimiento pueden adoptarse medidas cautelares relevantes, como prohibiciones de residencia, retirada de pasaporte o limitaciones de movilidad. Una defensa penal temprana permite revisar la calificación jurídica, discutir la proporcionalidad de las medidas y preparar una estrategia adecuada.
¿Cómo puede ayudar IN DIEM Abogados en un caso similar?
IN DIEM Abogados puede asesorar en procedimientos penales relacionados con delitos de odio, publicaciones en redes sociales, medidas cautelares, libertad de expresión, defensa del investigado, asistencia al detenido y valoración jurídica de resoluciones judiciales que afecten a derechos fundamentales.
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