Reforms on so-called “Gag law’ stall, concerns over secrecy law

Introduction

Rule of law

On 10th October 2022, Carlos Lesmes, the head of the 20-member National Council for the Judiciary (CGPJ), the judicial body responsible for appointing judges and ensuring judicial independence, resigned in protest over a nearly four-year-long political deadlock that has paralysed appointments to CGPJ. In a statement announcing his intention to resign, Lesmes said he had “lost all hope of change” and that staying in his position “would only mean my complicity with a situation that I abhor, and which is unacceptable”. In his view, the ongoing situation “seriously compromises the credibility and functioning of the entire judiciary”.

CGPJ’s mandate expired in December 2018. Since then, it operates on an interim basis as the government and the right-wing opposition Popular Party (PP) could not agree on its makeup. The council consists of the president of the Supreme Court, 12 judges or magistrates, and eight lawyers or other prestigious jurists. In order to appoint a member, a qualified majority of three-fifths in parliament (congress and senate) is necessary.

After the resignation of Lesmes, Prime Minister Pedro Sánchez and Alberto Núñez Feijóo, the leader of PP, resumed negotiations. Although apparently no progress was made, the Government and the PP are aiming to resolve the issue “as soon as possible.” Earlier, in September 2022, European Commission vice-president Věra Jourová warned that Spain must urgently renew the CGPJ. In a letter sent to Lesmes, Jourová voiced concern over the "dire situation" in which the Spanish judiciary finds itself after years of “institutional abnormality” and urged the relevant parties to unblock the deadlock in a spirit of mutual loyalty and sincere cooperation.

"Law on Democratic Memory"

In early October 2022, the upper house of the Spanish parliament, the Senate, approved a landmark bill that will ban expressions of support for the former dictator Francisco Franco. The legislation had already been passed by the Congress in July 2022. The "Law on Democratic Memory" will compel the Spanish state to search for the remains of the 114,000 people still unaccounted for after the 1930s Civil War. A DNA bank will be created to help trace, identify and map out victims of the Franco regime. Convictions handed down on political, religious or sexual grounds during the dictatorship will be annulled. A special prosecutor's office will be created to investigate crimes against humanity during the Franco era. Organisations that glorify the policies and leaders of the Franco regime will be banned. The Franco regime was an authoritarian religious dictatorship that lasted until 1977. According to the government, the legislation will “encourage a shared discussion based on the defence of peace, on pluralism and on broadening human rights and constitutional freedoms”. The leading opposition party, PP, however, understands the legislation as an attempt to revive the wounds of the past and is committed to repealing it if elected in 2023.

Peaceful Assembly

Despite expectations and promises, the Spanish government has not moved forward with the reform of the so-called Gag Law, which allows authorities to sanction and muzzle dissent.

In this period, a number of peaceful protests took place, for example:

• On 26th June 2022, more than 2,000 Spaniards protested against NATO in Madrid, ahead of a NATO summit. The protesters expressed dissatisfaction with NATO’s role in Russia's invasion of Ukraine.
• On 1st July 2022, thousands staged protests in several cities against the death of at least 23 migrants at the Spanish-Moroccan border. Protests were staged under the slogan “LasVidas Negras Importan” (Black Lives Matter).
• On 12th September 2022, brothel owners, sex workers and their supporters demonstrated in front of the Spanish Parliament against the ruling party’s plans to penalise prostitution customers, brothel owners and pimps with sentences of up to four years in prison. The bill still needs to pass through parliament.
• On 24th September 2022, thousands gathered in Madrid to protest against bullfighting and called for the protection of animal rights. The protest, organised by animal rights party PACMA, called for “the total abolition of bullfighting as well as all bull running and other cruel festivities involving animals in Spain.” 

• On 8th October 2022, about 2,000 forest firefighters demonstrated in Madrid calling for better working conditions.

Expression

Harassment against female journalists

On5th October 2022, the International Press Institute (IPI), Article 19 Europe and the Plataforma por La Libertad de Información (PLI) published their recommendations on how to investigate online harassment against women journalists. According to the watchdog organisations, women journalists regularly face a lack of support with their cases, are advised to limit their social media presence or to get used to attacks. According to their understanding, authorities, social media companies, media outlets and journalistic associations all have a responsibility in ameliorating the situation.

European Court of Human Rights on pro-ETA speech

According to the European Court of Human Rights (ECHR), Spain violated the right to free speech of former Basque independence politician Tasio Erkizia Almandoz. Almandoz gave a speech honoring a former member of the dissolved separatist organisation ETA in 2008. In 2011, a Spanish court ruled that his speech “was part of a clear framework of support for specific terrorist actions”, sentenced him to one year in prison and banned him from standing in elections for seven years. According to ECHR, however, Almandoz “did not intend, either in the content of his remarks or in the manner in which they were formulated, to incite the use of violence or to justify or praise terrorism.” Spain has been ordered to pay Almandoz 6,000 Euros for non-pecuniary damage and 5,000 Euros for costs and expenses.

Mass catcalling

On 7th October 2022, Spanish prosecutors launched a criminal hate crime investigation against male students of the Complutense University of Madrid (UCM) who yelled misogynist threats from their all-male dormitory at a neighbouring all-female dormitory in a coordinated event. The event was caught on a video which later went viral. In the footage, a man is seen shouting from a window of the male dorm: “Whores, come out of your holes like rabbits, you are f***king nymphomaniacs.” Spain’s largest student union announced that it would stage a protest against the “disgusting and sexist" footage.

Incidents against journalists

• On 4th July, a Madrid court deemed a complaint filed by the Moroccan government against El Confidencial reporter Ignacio Cembrero admissible, meaning that the trial against the journalist will now go ahead. The Moroccan government has accused the journalist of “repeated publication and dissemination of malicious and insulting news”, after the journalist reported and claimed that he was targeted with Pegasus spyware by the Moroccan government.
• On 4th July 2022,criminal lawsuits were launched by the Spanish right-wing party VOX against Ignacio Soto Pérez, the general director of radio station Cadena SER, Aimar Bretos, the director of programme Hora 25, and Héctor de Miguel, the presenter of Hora Veintipico, a section of Hora 25. The party accused the journalists of a hate crime and violating religious sentiments under the controversial articles 524 to 526 of the penal code over the satirical Hora Veintipico section of programme Hora 25. The Platform for the Defence of Freedom of Information (PLI) condemned VOX's actions against Cadena SER and called for reformation of the penal code.

• On 9th July 2022, following an interview on the TV3 programme Preguntes Freqüents (FAQs) with the president of the parliament Laura Borràs, the Junts per Catalunya deputy and vice president Francesc de Dalmases and Borras were physically and verbally abusive towards a woman journalist (who wishes to remain anonymous). They proceeded to lock the journalist in a room, and screamed at her, accusing her of being a “bad journalist”. This comes after tense moments occurred during the show as Borràs, who is facing corruption allegations, was questioned. TV3 management has opened an investigation into the events, which have been condemned by local journalist associations.
• On 28th July 2022, Alberto Núñez Feijóo, the leader of Spain’s opposition Popular Party (PP), prevented journalists from asking questions during a press conference, despite inviting them to attend the live event. Press associations called the incident a “sneaky form of censorship” and highlighted that on previous occasions the PP has refused to engage with the media.
• In September 2022, the Spanish football authorities introduced changes to the rules for broadcasting matches for the 2022-2023 season, which included banning journalists from asking footballers and managers uncomfortable questions. In a statement, the Federation of Spanish Journalists’ Associations (FAPE) said “La Liga’s decision represents a tight control that goes against the objective exercise of information and violates the freedom of information and the citizens’ right to receive balanced information”.
• On 11th September 2022, TVE freelance photojournalist Lorena Sopena was physically attacked and her equipment damaged during a pro-independence demonstration in Barcelona. The journalist suffered minor injuries.
• On 15th September 2022, a journalist reporting on a high-profile eviction in Valencia was insulted and physically attacked by a police officer, despite the journalist presenting his press ID.

Concerns over Secrecy law

Civil society has raised concerns over the Law on Classified information (so-called secrecy law), which in a much-welcomed move has been proposed to replace the 1968 Franco-era law still in force. CSOs raised concerns over the short time frame for public consultations, only eight working days, which limited participation. They have called for an extension. In addition, they raised concerns about the content of the law, which is meant to establish criteria, categories and deadlines for classifying and declassifying state secret information. Amnesty International Spain raised concerns that a human rights framing is absent from the text and called on information on human rights violations to be declassified. Another concern is the prolonged period for declassification of information and proposed fines, ranging from €50,000 to €3 million for disseminating classified documents, which could adversely impact the media and investigative journalists.