Holocaust Denial vs. Freedom of Expression: Spanish Court Case

Posted on Jan 9, 2025 in Law

**Holocaust Denial vs. Freedom of Expression: A Spanish Court Case**

Context

This case was filed against a Spanish book shop specializing in literature defending Nazi Germany and denying the Holocaust. This court case deals with freedom of expression and hurting the fundamental rights of others. The Constitutional Court had to balance the rights of freedom of expression against the duty not to violate another’s constitutional rights.

Summary

  1. The Third Section of the Provincial Court of Barcelona has raised the question of unconstitutionality with respect to paragraph two of article 607 of the Penal Code. The proposing court maintains that the paragraph in question could be contrary to the right to freely express and disseminate thoughts, ideas, and opinions. In accordance with the arguments developed in the proposal of the question, the court making that proposal bases its consideration on the conduct defined as criminal in art. 607.2 of the PC cannot be framed within the concept of provocation to act criminally nor in an apology for the crime.
  2. Both the State Attorney and the State Public Prosecutor share the opinion of the proposing court that the conduct sanctioned by art. 607.2 of the PC consistent with disseminating ideas or theories which deny or justify genocide cannot be interpreted as a means of apology for genocide; however, both defend the constitutionality of said precept by considering that the right to freedom of expression cannot protect the aforementioned conducts.
  3. In our system, there is no room for a model of “militant democracy”. In this way, the constitutionally protected framework of freedom of expression cannot be restricted by the fact that it is used for the dissemination of ideas or opinions contrary to the essence of the Constitution.
  4. Furthermore, the European Court of Human Rights considered that the denial of the Holocaust cannot be considered to be protected by freedom of expression in that it implied a proposal of racial defamation of Jews and incitement to hatred towards them.
  5. While obviously accepting the particularly objectionable nature of genocide, one of the most abhorrent crimes imaginable against the human race, it is true that the conduct described in the contested precept consists of the mere transmission of opinions.
  6. In virtue of the principle of preservation of the law, it is only necessary to declare unconstitutional those precepts whose incompatibility with the Constitution are clearly evident due to the fact that they cannot be interpreted in accordance therewith.
  7. The Constitutional Court said that in the legal precept, there are two different conducts classified as a crime, according to which disseminated ideas or theories deny or justify genocide. The precept would conform to the Constitution if it were possible to assume from its terms that the conduct penalized necessarily implies a direct incitement to violence against specific groups or contempt for victims of the crimes of genocide.
  8. For all these reasons, the Constitutional Court has decided to partially accept the question of unconstitutionality, and as a result:
    1. Declare the inclusion of the expression “deny or” in the first paragraph of article 607.2 of the Penal Code to be unconstitutional.
    2. Declare that the first paragraph of article 607.2 of the Penal Code which punishes the dissemination of ideas or theories likely to justify a crime of genocide is not unconstitutional.

Analysis

Article 607.2 of the PC states: Dissemination through any medium of ideas or theories which deny or justify the offenses classified in the previous paragraph of this article, or which attempt to rehabilitate systems or institutions which harbor practices which generate such crimes shall be punished with a sentence of one to two years prison.

This article could be contrary to the right to freely express and disseminate thoughts, ideas, and opinions, which is set in article 20 of the Spanish Constitution.

On one hand, when the Constitutional Court declared the inclusion of the expression “deny or” in the first paragraph of article 607.2 of the Penal Code to be unconstitutional, it means that denying the Holocaust is legal.

On the other hand, the justification of the Holocaust is illegal, and that’s why this concept set in article 607.2 of the Spanish Constitution is not unconstitutional.