The debate is on the table. A stand-up comic, Dani, Matthew, has had to tread this Monday, a court in Madrid to declare as charged for making a joke with the flag of Spain. The association of Alternative trade Union of Police imputed to him, in addition to a hate crime, another outrage to symbols of Spain, provided for in article 543 of the Criminal Code. A commandment that is punishable with a penalty of a fine of up to 12 months and that already has a long journey in the courts: puff the hymn, burnings and insults to the flags… —on which different judges have made different results—.
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half a year Ago, for example, the Fourth Section of the Sala de lo Penal of the Audiencia Nacional gave a twist to a decision issued within the same judicial body. José María Vázquez Honrubia, judge of the Central investigative Court number 1, was sentenced in December 2017 to Santiago Espot Piqueras to promote the whistle the hymn in the final of the Copa del Rey soccer 2015. According to argued the judge, “it was evident that [the action] had a character of shame, stigma and, in short, was a treatment strictly vexing”. But, after using the defendant of this decision, the board revoked the resolution and acquitted him to understand that this type of protest was framed within the freedom of criticism.
The article 543 literally says that “offenses or outrages by word, by writing, or in fact to Spain, its autonomous communities or the symbols or emblems, made with advertising, is punished with the penalty of a fine of seven to twelve months”. Honrubia stated that this “protection to Spain and its symbols is also instrumental in preserving the coexistence and social peace.” “The outrages they have a component of obvious attack subjectively pluriofensivo, since it affects all the spaniards that they respect and make it his own symbols (flag, anthem, coat of arms)”, apostillaba in its resolution.
But the parliamentary group United we Can reject this kind of arguments. Alberto Garzón (IU) has presented in October a draft law to repeal article 543, is admissible with the votes against the PP and Citizens. The leader of the left-wing coalition believes that “it should be legitimate to criticize the institutions of the State,” in democracy and underlines that this provision undermines the freedom of expression. “We would have liked not having to Netspor submit [this initiative] because it would mean that our Penal Code or our political system, ultimately, would not have the serious shortcomings that today we try to overcome,” stressed the deputy in the Congress.
“it seems to Me that the sketch of Matthew, unwise, comes within the freedom of expression. I don’t think that has entity to be punishable as a crime”, points out María Acale, professor of Criminal Law at the University of Cádiz: “In a democracy, to ensure that there was, even, the right to make the clown”. “As users of television, and as adults that we are, we can decide if we want to see that program or not. And I think that is the only penalty that should have”, he adds.
“it Is evident that the classification of the current crime of outrages, it is obviously unnecessary”, stressing also Rafael Rebollo Vargas, a professor of Criminal Law of the Universitat Autònoma de Barcelona (UAB), in an article entitled Basis for a critical interpretation of the crime of outrages on Spain published in 2014: “Enters in open contradiction with the right to freedom of expression”. “I think that the burning of a flag, like any other outrage of the fact to the State or its symbols, would only be punishable if this conduct injured the legal right protected in the crimes of public disorder,” reads the text.
“There’s that set fire to the fucking flag”
Now, it is up to the judges to interpret the application of article 543 in each case. And that has produced judgments in many ways. In 2008, the Penal court number 2 of Ourense acquitted two defendants who burned the flag of Spain: “it has Not been established that such conduct was done with intent to dishonor, offend or vilify the national flag as a symbol representative of the Spanish nation”.
A judge of Ferrol condemned, in changed, last year a trade unionist to say “here you have the silence of the fucking flag” and “set fire to the fucking flag.” The leader made these statements during a protest of the workers of the cleaning company of the Military Arsenal of the city, which coincided with the ceremony of hoisting of the banner of Spain. The defendant appealed against the decision to understand that he was protected by the freedom of ideology and expression. But the Provincial court rejected this and argued that “the Spanish Constitution does not recognize any right to insult” and that “any attempt to exculpate the offense to our national symbols, under the pretext of the exercise of fundamental rights or of the absence of the specific intent, is doomed to failure”. Not always.
