International Bodies warn Spain: Attacks against the Police are not Hate Crimes

Members of the European Commission Against Racism and (ECRI), the Organization for Security and Cooperation in Europe (OSCE) and the UK Institute of Race Relations have explained that Hate Crimes are a measure created to protect groups that are discriminated against and not public servants.

Original article in Público (Spanish version) here.

24 June 2018 - Miquel Ramos - @Miquel_R 

After the many complaints filed and investigations conducted into supposed hate crimes where the alleged victims have been officers of Law Enforcement Agencies, the newspaper Público has consulted the main international bodies and several experts in the field as to whether the police can be victims of hate crimes.

The legislation in question, which Spain delayed applying for years, was created to protect those social groups seen as most vulnerable and is now the subject of debate following cases where numerous people have been accused of hate crimes against the police.

There are scores of cases waiting to be heard just as former Interior Minister Juan Ignacio Zoido warned. They range from teachers, activists and Catalan politicians who criticised and protested at police violence during the 1 October referendum last year to the Ahora Madrid Councillor, Rommy Arce, who publicly expressed – on social media – her condemnation of police action in Lavapiés where a young street seller died.

In Arce’s case, they have also accused Malick Gueye, spokesperson of the   Streetsellers Union, of a supposed hate crime against the police. The aggravating circumstance of hate crime has also been used against the group of young men in Altsasu, convicted following a bar brawl with members of the Civil Guard.

In some cases, such as the case of the teachers in Seu d’Urgell, the courts dismissed the hate crimes accusation and insisted that the Civil Guard could not be considered as a “discriminated or threatened group.”  The charge of hate crime cannot be confused with the “offences of slander or insult "given that a hate crime requires the existence of a discriminated or threatened group as the passive subject and the incitement towards the infringement of the rights of this group” is the conclusion of this judicial writ.

Liz Fekete, director of the  London-based Institute of Race Relations, was surprised by these and by other cases in Spain. This body, which has monitored racism and civil liberties across Europe since 1992 and which has investigated hate crimes in the EU, has stated it is “alarmed” to find that in Spain people are being accused of hate crimes merely for criticising the police through humour or other means.… for allegedly attacking officers, a crime which can already be tried and sentenced under criminal law.

Ms. Fekete has written widely on the subject and has been a consultant to various international bodies, including being a Special Rapporteur to the United Nations with regard to contemporary forms of racism. She was also an expert witness on the Peoples’ Tribunal and on the World Tribunal for Iraq.

In her remarks to Público, she warned that “hate crimes legislation with, measures against discrimination, and International Human Rights legislation are there to protect vulnerable groups and must never become a shield for police officers to hide behind.”

Criminal lawyer Laia Serra, an expert in hate crimes and human rights, agrees with Ms Fekete’s points: “The police already have a series of offences which protect them, such as Undermining the authority of the Law (Criminal Code 550) in cases of physical attacks, libel (Criminal Code205) and slander (Criminal Code 208) or insults aimed at the police corps (Criminal Code 503.2)

When the police, are carrying out a State duty, they are not exercising a fundamental right. They are a corporate body, not an identity group and even less a group with a structural disadvantage towards exercising their basic rights.  

The perception that hate crimes are applicable to the police is itself an abuse of the Law, a distortion of the anti-discrimination legislation.

Organisation for Security and Cooperation in Europe (OSCE) spokesperson Thomas Rymer denies that the police are being sheltered by this legislation only because of their profession. However, the prosecution in Las Palmas has confused the issue further by defining the police as an “ideological group” representing, according to the Ministry, “some basic fundamental political ideas, identifying with the established legal order.”

After the dismissal of a case in which several young people were accused of mocking the death of a police officer on social media, the prosecution appealed against the acquittal which stated that “it is not possible within strict technical terms to carry out a broad interpretation of article 510 of the Criminal Code that might permit the inclusion of a profession as a victim of a hate crime.

These contradictory interpretations and implementations of the law are producing widespread doubts both inside and outside the Spanish state.

“These trials undermine the legitimacy of laws designed to protect people against racism. Spain, as far as we know, is the only country in the EU that is following this path.  Considering the past history of authoritarianism in Spain, the Institute of Race Relations believes it is time for the EU and the international community to pay more attention to these developments in the Spanish judicial system.

Rymer denied to this paper that the profession of a person was considered a characteristic object of discrimination as has been suggested, underlining that the grounds would be race, ethnicity, language, religion, nationality, sexual orientation, sex or any other fundamental attribute but still denies that the police are being sheltered by this legislation, based solely on their profession.

Wolfram Bechtel, a lawyer on the European Commission Against Racism and Intolerance (ECRI) of the Council of Europe, when asked to comment by Público, affirmed that “a police officer could also, in principle, be the victim of a hate crime if he suffers, for example, a racially-motivated attack, but not solely based on his profession.

Bechtel reiterates, after seeing numerous cases in Spain where such accusations of hate crimes are creating many doubts that the ECRI “has stated that hate crime legislation must not be misused by the police or other authorities” and cites examples of the warnings given to Turkey and Azerbaijan in its 2016 report, for precisely these reasons.

Hate crimes do not have a standard definition and “this complicates its interpretation” says Laia Serra. He points out  that “all agreements which forbid discrimination such as the Convention on the Prevention and Punishment of the Crime of Genocide, the  European Court of Human Rights,  the European Charter of Fundamental Rights, the Additional Protocol to the Convention on Cybercrime, the framework decision 2008/913, the  General Recommendation 5 of the ECRI, etc. are interpreted in the context of these historical categories and increased protection for public officials has never been contemplated.”

The Catalan lawyer also insists that the purpose of hate crimes legislation – increased protection provided by higher sentences – is only for cases where there is a need for specific protection to overcome obstacles in the exercise of fundamental rights, by those who have a clear historical or social disadvantage in exercising these rights. 

The Spanish judge and spokesperson for Judges for Democracy, Joaquim Bosch, also cites the sentence of The European Tribunal of Human Rights that condemned Spain for violating the freedom of expression of several activists convicted of burning photographs of the Spanish monarchy.

A hate crimes offence was added to the sentence handed down in 2007 to two young people for these acts, it being considered that they had incited violence against the monarchy.

“Using a hate crime clause against criticisms of institutions or public bodies distorts the aim of the working principles which are to protect specific minorities. Shielding State institutions from valid and potential criticism, undermines freedom of expression,” says Bosch.

In 2009, the Office for Democratic Institutions and Human Rights of the OSCE published a practical guide to Human Rights legislation aimed at countries so that they could apply the recommendations in this area.

This guide already stated that while attacks against police officers may be considered as serious offences, this did not mean that they could be included in hate crimes.

“This non-inclusion does not mean that there are not criminal sanctions. In most jurisdictions, attacks against police officers or members of the armed forces are considered as serious offences It is simply that they do not enter into the definition of hate crimes”, says the report.