The Spanish version of this post can be consulted here.
Rapper Pablo Hasel’s arrest after barricading himself in the rector’s building has provoked opinions against his imprisonment and even violent demonstrations.
For example, The Guardian says: «Angry words: rapper’s jailing exposes Spain’s free speech faultlines».
Amnesty International collects signatures with the slogan: «Rapping is not a crime, take action to change the Penal Code and defend freedom of speech!”
Or, also, this one from Le Parisien: «Spain: turbulent arrest of the rapper convicted for his tweets against the monarchy and the police».
Now let’s go to what has happened, which is explained very well in this link from 20 Minutos:
1) The court’s first judgment against Hasel, from April 2014, sentenced him to two years of prison for glorification of terrorism, for some songs uploaded to YouTube in which he said things like the following:
«He deserves to blow up Patxi López’s car!».
«It’s a mistake not to listen to what I sing, like Terra Lliure  leaving Losantos alive».
«I don’t feel sorry for your shot in the back of the head pepero…»
«The GRAPO were self-defense against imperialism and its crime».
«Those who pull the strings deserve a thousand kilos of ammonia».
«I think of bullets that Nazi judges’ necks reach».
«May the GRAPO return and bring you to your knees».
The magistrates ruled out that these manifestations were covered by the right to freedom of expression, since in them «the discourse of hatred beats in a patent way». The sentence was suspended as it was the first one.
2) But the same year 2014 he published the song «Menti-Ros», referring to the Mayor of Lérida Àngel Ros, where he made death threats against him. Although there was no complaint in court, the Prosecutor’s Office ordered to removethe video and, in response, Hasél published another song that led the court to close his Facebook profile.
3) In 2016 he assaulted a TV3 journalist in the office of the rector of the University of Lleida during a protest lock-in by professors and students. For this aggression, in June 2020, he was sentenced to six months in prison and a compensation of 12,000 euros to the victim. This sentence is not yet final.
4) Another court in Lérida, in 2017, condemned him for another attack, in this case on the unfavorable witness of a trial in which an agent of the Guarda Urbana who had been accused of assaulting a friend of the rapper was acquitted. Hasél was sentenced to two and a half years in prison and fined 2,400 euros.
This sentence was confirmed yesterday, February 18, 2021, by the Court of Lérida, so that the sentence would be added to the one he is now serving in prison, although the sentence is not yet final as it can still be appealed to the Supreme Court.
5) The National Court, in September 2019, suspended the sentence mentioned in paragraph 1) for 3 years, because it did not exceed two years the sentence and because he had no prior records, warning that if he reoffended, the sentence would be executed.
6) Indeed, in March 2018, the National Court again sentenced him, for other acts, for glorification of terrorism, in concurrence with insults to the Crown and the State Security Forces, with aggravating circumstance of recidivism, to two years in prison and a fine of 23,400 euros. In this case it was about some Tweets in which were contained, among others, messages of this tenor:
- Juan Martín Luna, militant of the PCE(r), killed by the police for defending our rights.
- The Bourbon mafioso partying with the Saudi monarchy, among those who finance the ISIS is everything.
- The royal family are parasites.
- The monarchy has criminal business like arms trafficking to Saudi Arabia.
- The monarchy lives in luxury at the expense of the exploitation and misery of others.
- The Civil Guard, as even the European court has said, has tortured.
The Supreme Court, already in 2020, reduced this last sentence to 9 months in prison, because ETA and GRAPO to whom their messages referred were no longer active and had not been carrying out terrorist actions for a long time. The conviction was for glorification of terrorism, insults and slander to the Crown and against the institutions of the State, arguing that freedom of speech is not a «blank check» and that hate speech cannot be protected.
The rapper appealed to the Constitutional Court which, in November, did not admit the appeal, as the special constitutional transcendence had not been sufficiently argued.
In view of the facts, we can ask ourselves the following questions, as jurists usually say, de lege data, that is, taking into account the law in force at the present time:
Does Mr. Rivadulla (alias Hasél) enter prison because he has been convicted for his expressions or for his aggressions?
Actually, the origin of Hasél’s imprisonment lies in the fact that he has been convicted, in this last sentence -which in turn reactivates that of point 1)- for two offenses typified in the Penal Code.
On the one hand, the crime of glorification of terrorism, which punishes the expressions in different songs and tweets -some transcribed above- in which he justified or even praised the terrorist actions carried out by GRAPO and ETA. This crime is typified in the Penal Code with prison sentences of one to three years. Hasél has been sentenced to 9 months in prison.
On the other hand, the crime of insult to the crown for different tweets and songs in which he said things like that the Infantas should be condemned to death or that the King financed ISIS terrorism.
So, does Mr. Rivadulla go to jail for insulting the King?
No, insulting the King is not punishable in this case (could be in others if they are serious or slanderous) with a prison sentence, but with a monetary fine. Therefore, Mr. Rivadulla has been sentenced to prison for glorifying ETA and GRAPO terrorism and not for insulting the King.
Insults are also a crime when they are directed against persons and not only against the Crown; the difference between both crimes is that insults against persons are crimes that can only be denounced by the aggrieved person and the penalties are a monetary fine of six to fourteen months; insults against the Crown are crimes that can be denounced by anyone and the monetary penalties are higher, from six to twenty-four months.
But is it not true that if the sentence is less than two years, no imprisonment is incurred?
Indeed, and this gentleman’s prison sentence has been set at 9 months, after a reduction by the Supreme Court. However, and as already commented, Pablo Hasél has been sentenced up to three more times for different crimes; two of those sentences are not yet final and the other one was suspended on the condition that he did not reoffend. Since Pablo Hasél has reoffended and has been sentenced by a final judgment in 2020, the suspended sentence -the one explained in paragraph 1)- has been reactivated which entails his immediate imprisonment.
Consequently, Mr. Hasél is condemned for his expressions and his subsequent conduct, in accordance with the provisions of the Law.
Now then, should the law be reformed to exclude, as requested by Amnesty International, the glorification of terrorism, insults to the Crown and other State institutions and religious feelings?
These are already considerations of lege ferenda, on which there is room for all kind of opinions. But there are some basic issues that must be taken into account. In the first place, freedom of expression is a fundamental right recognized in Article 19 of the Universal Declaration of Human Rights and, in fact, is a fundamental pillar of any advanced democracy, since it allows opinion to be formed, allowing information to flow and the electorate to be properly formed without restrictions. Moreover, as Thomas I. Emerson said, freedom of speech helps provide a balance between stability and change, since it acts as a «safety valve» that allows people to let off steam when they are in critical moments that could make them prone to revolution.
However, like any freedom or right, which must be interpreted broadly, it is subject to limits, which must be interpreted restrictively. Stuart Mill argues that the fullest freedom of speech is required to push arguments to their logical limits, rather than the limits of social embarrassment; but he also introduced what is known as the harm principle, understanding that such freedom should stop when it harms another.
Of course, the determination of what causes harm to another, slander, incites violence or insult depends on the social context, the historical moment and even the audience one is addressing. For example, the crime of glorification of terrorism is now being called into question because, unlike apology, it does not require such a specific incitement to commit a crime (see here), which can lead to excessive punishments. The moment in which the expressions are pronounced is also important and, in fact, the sentences take it into account, because they consider that since ETA and GRAPO are not operative, the references to them are less serious. An important circumstance should not be forgotten either, and that is that the audience to which the expressions are addressed is today magnified by social networks and the easiest communications: no consequence would arise if such expressions had only been heard by those who have attended an event paying for it.
Furthermore, it should be taken into account that imprisonment does not seem to make much sense to repress crimes related to expressions that, unlike theft or others, can continue to be committed from prison. Finally, it is impossible for Criminal Law, which should be the ultima ratio, to be devoted to repressing any conduct that may cause offense to another person. Democracy also consists of tolerating being «offended» by opinions or attitudes that displease us, because it is considered that more harm is done by repressing than by allowing, since the expression of ideas is what facilitates change and evolution.
Having made these nuances, it does not seem to us that there should not be any criminal repression for any expression, because not protect certain aggressions to symbols, values or common reputations it means that they are not such values or symbols. Where is the limit? The limit is in that point from which we would not accept those expressions referring to ourselves.
That is why -we conclude with a political reflection- the political instrumentalization of this imprisonment by some leaders who consider, all at the same time, that we are not in a full democracy but that their position in the government is totally democratic; or that the media should be intervened or a truth commission should be created to prosecute hate crimes against minorities and, at the same time, that there is not enough freedom of information and expression; that there should be total freedom to glorify terrorist groups and insult the King but they reject escraches and demonstrations against their persons; that they advocate participatory democracy but do not hesitate to incite violence when the law is applied.
It is difficult to maintain a coalition government when one of the parties wants to overthrow the system and tries to do so, now, from within and promotes it outwards. It is naive to think that those who govern will listen to us, but it is clear that the disregard for the whole truth and incoherence can only lead to the situation becoming more and more untenable.
Spanish terrorist organization with Catalan pro-independence ideology.
Pepero is used to refer to those who vote for the PP, a Spanish liberal-conservative political party located between the center-right and the political right.
Spanish Antifascist terrorist organization.
Basque nationalist terrorist organization