Freedom of expression and artists imprisoned in Spain: Freemuse

With the recent arrest and entry into prison by rapper Pablo Hasél in Spain and the protests it has generated, there has also been a lot of talk about the latest report published by Freemuse ‘State of Artistic Freedom 2020‘(which analyzes what happened in 2019). Freemuse is an international consulting organization of the UN that defends freedom of expression in art and in fact this next February 25 they publish the ‘State of artistic freedom 2021‘(with what happened in 2020). Most of the headlines on that report have highlighted that Spain was in 2019 the country with the most imprisoned artists, however the study speaks of “sentenced to prison” (imprisoned) and does not specify whether or not they have entered jail.

Spain leads the list of those sentenced to prison with 14 people in this situation, ahead of Iran (13), Turkey (9), Myanmar (8), Egypt (6), China (5) or Russia (4). Spain was already the country with the most artists sentenced to prison in 2018, according to previous Freemuse report. That year of the 60 condemned artists, Spain also led the list with 14, followed by China (11), Turkey (9), Iran (9), Egypt (8), Russia (2) and one in each of these countries : Israel, Malawi, Malaysia, Oman, Saudi Arabia, Somalia and Tunisia.

In fact, different users on social networks have also echoed, as is the case of the former number two of Más Madrid, Clara Serra, who criticized that Spain is “above Iran or Russia” and that this “shows we have a problem with freedom of expression”. The artistic freedom it is an aspect of a much broader right that is freedom of expression.

Spain is no worse than Iran or China in freedom of expression

In the latest edition of the report published (‘The State of Artistic Freedom 2020‘) Freemuse to analyze 711 acts of violence that occurred in 2019 in 93 countries and shows widespread attacks on freedom of artistic expression on a global scale. They are less than in 2018, when there were 673 cases violation of artistic freedom in 80 countries.

Despite the fact that Spain continues to lead the list of artists sentenced to prison in 2019 it is not one of the “countries of concern” in this edition from the Freemuse report nor does it have in its figures no murder or kidnapping of any artist. Brazil, China, France, Egypt, India, Indonesia, Iran, Lebanon, Nigeria, Russia, Turkey, the United States and Zimbabwe are worrying and therefore have a separate chapter.

In fact, of the 711 acts of violence against artistic freedom occurred in 2019, 9 were murders, 10 sequestrians, 71 prison sentences, 85 arrests, 23 prosecuted, 57 persecuted, 44 threatened, 28 works destroyed, 22 artists were prohibited from traveling, six were attacked, four received sanctions or fines, and 352 different acts of censorship occurred in the world.

“Spain is no worse than Iran. Also, when we talk about artists sentenced to prison, it does not make sense to compare both cases since It also depends on the transparency of each country»Explains Alberto González Pulido, consultant on freedom of expression issues. «In Spain one can express oneself, even if it is later censored, in Iran and in other countries like China they cannot even express themselves in many cases because the flow of information is intervened from the beginning, something that does not happen in Spain ”, he adds.

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From Newtral.es we have contacted the organization that prepared this study, Freemuse, whose spokesperson and official headquarters are in Denmark, to learn more about the methodology and data collection used in more depth and detail. The additional information that you send us will be incorporated into this article.

Who are the 14 artists imprisoned in Spain?

Importantly, the Freemuse report always talks about imprisoned and describes it as “artists who were sentenced to prison for their artistic work during that year or artists who were imprisoned years before, but remained in prison ”. The latest document does not detail the names of these convicted artists and does not specify whether or not the artists went to jail.

However, according to the previous Freemuse report that analyzed what happened in 2018 and Spain also had 14 artists with prison sentences, the names were mentioned. The 14 artists were rapper Josep Miquel Arenas Beltrán (Valtonyc), rapper Pablo Rivadulla (Pablo Hasél) and the 12 members of the rap group The Insurgency. The 14 artists sentenced to prison in 2019 in Spain were tried according to Freemuse, for “improper use of anti-terrorism laws”, something the organization considers “an alarming trend.”

Valtonyc He was sentenced to three and a half years in prison but instead of surrendering to the Spanish authorities he fled to Belgium where finally a Belgian court ruled against his extradition and dismissed the charges against him, as Freemuse relates. As for the 12 members of The Insurgency their sentences were reduced from two years in prison to six months and they did not go to prison either. Yes it has finally made it Pablo Hasél this February.

Daniel Canales, researcher at Amnesty International (AI) explains that “generally in Spain, the prison sentences imposed for the crime of glorifying terrorism, they are usually suspended in accordance with art. 80 of the Penal Code, which allows it if the sentence does not exceed two years and the crime has been committed for the first time. However, Canales warns that “even if you do not go to jail, the fact that you are convicted of a crime of terrorism automatically entails the penalty of absolute disqualification, which means, among other restrictions, not being able to exercise a whole series of professions or stand for public office.

Terrorist laws and freedom of expression in Spain

The Freemuse report asserts that “anti-terrorism legislation continues to be used to undermine freedoms fundamental in the name of strengthening national security. Vague definitions of what constitutes terrorism allow governments to investigate artists accused of ‘glorifying’ terrorist organizations, as seen in Turkey and Spain ”.

Something with which the researcher Daniel Canales agrees: “In Spain, anti-terrorism laws restrict freedom of expression as we widely denounce in our report Tweet if you dare”. “Users of social networks, journalists, legal professionals and musical artists have been prosecuted by virtue of article 578 of the Penal Code, which prohibits the ‘glorification of terrorism’ and the ‘humiliation of the victims of terrorist crimes’ ”, recalls Canales, who believes that one of the problems in this regard is“ the imprecision in the wording of crimes”.

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Canales explains that with the reform of this article in 2015 the maximum prison sentence was increased to three years and it was considered an aggravating factor that it was committed through the internet. “For this reason, since 2015, the number of people convicted in application of article 578 increased: 18 in 2015, 35 in 2016 or 31 in 2017. Although in recent years much less has been applied and in 2019 we have evidence from Amnesty of only two cases and one in 2020 ”, he assures.

What has happened? This researcher believes that it is due to the fact that “at the jurisprudential level, the application of article 578 of the penal code has been further specified as a result of a 2017 directive who talks about the need to assess the risk that occurs with messages that are emitted and if this risk could materialize in an act of violence and that creates a framework for the criminal prosecution of those messages ”.

“As a result of this, the Supreme Court changes its jurisprudence a bit but these specifications they were not introduced into the Spanish legal system “, says Canales who insists that “Article 578 as defined in the criminal code deviates from international human rights standards (art. 19 and 20 of the International Covenant on Civil and Political Rights, art. 10 of the European Convention on Human Rights, observation 34 of the United Nations Human Rights Committee and the Rabat Principles)”.

The lack of transparency and the ‘chilling effect’

For the jurist of the Platform in Defense of Freedom of Information (PDLI) and researcher at Stanford University, Joan Barata, “is not that Spain is worse than Iran because it has a greater number of artists sentenced to prison”, and attributes it to different factors. On the one hand there is “the lack of transparency in criminal proceedings in certain countries and in the real reasons for which someone is sentenced, in this case an artist “since” there are many charges that hide the persecution of a specific person, “he adds. In fact, in iran the Freemuse report claims that “Artistic expression is constantly challenged by Islamic principles that govern the country ”.

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“On the other hand is the chilling effect or deterrent effect. It means that if you live in a country where hundreds of people have been punished there comes a point where nobody dares to do anything anymore therefore it is logical that perhaps in 2020 there will be fewer artists in Iran expressing themselves. Many will have left to be able to do it “, says Barata, who recalls that” in the case of Spain there is such freedom of expression and that is why artists express themselves in a broader way. “

Furthermore, “in Spain there is a specific phenomenon of conservative and intolerant groups who have a a certain tendency to prosecute issues of freedom of expression that would otherwise go unnoticed and that in some cases have to do with religious issues ”, indicates this expert. Barata recalls that “if we look Reporters Without Borders rankings for example on freedom of the press (another form of freedom of expression) countries like Iran, China or Egypt are among the worst worldwide, something that is closely related to democratic quality as well ”.

Freedom of expression and its frictions with other rights

As Sergio de Juan-Creix, an expert lawyer in digital law and professor at the Open University of Catalonia, explains, “freedom of expression is a fundamental right, it comes from a human right, and it is recognized in article 20 of the Spanish ConstitutionHowever, sometimes it collides with other rights ”. In that case, which one prevails? “This will be marked by the weighing trial, the circumstances and the specific case.”

The Platform in Defense of Freedom of Information (PDLI) has prepared a Legal report on the adaptation to international standards regarding freedom of expression of certain precepts of the Spanish Penal Code. In this document they analyze some norms that they consider incompatible with freedom of expression, such as the crimes against honor, defense of State symbols, offense of religious feelings, hate speech or terrorism crimes.

Artists imprisoned in Spain? The protection of art as a disruptive element

For Quelic Berga, artist and professor of the art degree at the UOC, “the discipline of art does not seek to consolidate knowledge but rather what seeks is to provide some instability in systems to make them evolve. Unlock the stable, relativize the logical, to generate a new path ”. That is why he believes that “freedom of expression must be protected, so that the artist can experiment, because to generate debate he has to be controversial.”

Regarding the limits, in addition to the criminal ones, Berga believes that “the limit of art has to do with maturity of the person who is receiving it. If a person is not confident enough, they will become uncomfortable with almost any artistic practice. Something closely related to a healthy democratic culture as a society”.

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