The Criminal Court number nine of Seville has acquitted the rapper Pablo RD, known musically as Pablo Hasél, of the possible crimes of insults with advertising, hatred and coercion for which he was tried for comments he published on his Twitter account against Real Betis Balompié for his support of the footballer Roman Zozulya, to which the investigated linked to the Nazi ideology, considering that the comments made in said tweets must be considered protected by the right to freedom of expression.
The aforementioned rapper, let us remember, entered prison last February to serve a sentence of nine months in jail for a crime of glorifying terrorism, and insults and slander against the monarchy and the State security forces and bodies, for spread threatening messages on social networks.
In the trial held in Seville against him, the Prosecutor’s office requested the acquittal of the accused, while the private prosecution exercised by Real Betis requested two and a half years in prison and the payment of a fine of 5,400 euros for a hate crime; 6,000 euros fine for the crime of insults with advertising, and 1,200 euros of fine for the crime of coercion.
In the sentence, released by the TSJA Communication Office, The judge considers it proven that, on April 20, 2017, Real Betis sued the accused after the publication of a series of comments through your account on the social network Twitter related to the transfer to Rayo Vallecano of the footballer Zozulya, belonging to Betis, after the players of the first team of the latter club appeared together with the technical team and issued a statement in support of the footballer and his family.
Thus, the magistrate lists said comments published by the defendant on February 2 and 3, 2017, as they are “to the Betis squad that defends the Nazi, if it weren’t for the fact that pilots and stewardesses would also die, I would wish their plane crashed “, or” garbage of Betis players, speaking of lynching against the Nazi player, lynching is what the Nazis do. “
On February 8, 2017, and after Betis announced its intention to file a complaint against the investigated, he published a series of tweets where he said “in a truly democratic state, the complaint would go against Betis for defending a Nazi there being countless evidence that it is “,” @Realbetis the victims of the Ukrainian Nazis cannot complain because they are already dead “,” that they continue to portray themselves, persecuting and criminalizing those of us who do not tolerate Nazism or its defenders, they open our eyes to many “, or “the bombs of the Nazi judge’s friends, those it finances and promotes, they do this. Apology of terrorism is to defend them “.
In relation to the hate crime, the judge sets out the existing jurisprudential criteria in this regard and concludes, coinciding with the Public Prosecutor’s Office and the defense, that the facts prosecuted “they lack sufficient authority to be criminalized as a hate crime”, since, “even though it is evident that the comments contained in the factual account are reprehensible, in bad taste and unnecessary, their criminal reproach is not possible insofar as in the context in which they were issued they did not endanger essential values of those to who were directed, such as his life, physical integrity or freedom “.
The judge considers, in this sense, that, “although the expressions and value judgments made by the accused towards Real Betis and its players may be unnecessary to reflect an opinion or criticism and are provocative, they should be considered protected by freedom of expression in the context in which they were uttered, because although they may be hurtful, rude and even offensive, they do not meet the necessary elements to be able to integrate the conduct within the typical scope of the crime of the Article 510 of the Penal Code“And it is that such expressions,” despite their content, were not objectively apt to spread a hate speech to the recipients of their messages. “
Right to freedom of expression
“The same conclusion should be reached in relation to the alleged crime of insults denounced”, affirms the judge, who adds that, “although the criminal legislation grants a wide protection to the good reputation and the honor of the people, the constitutional recognition of freedom of expression has profoundly modified the way of facing the prosecution of crimes against honor in those cases in which the conduct to be considered has been carried out in the exercise of said freedom “, therefore,” even when it is considered that the comments ” of the accused “can describe a negative image of the club and its players, they would be protected in the exercise of said freedom, applying the considerations made regarding said right when dealing with the hate crime, which can also be extrapolated to this criminal figure “.
In line, the judge points out that, “regardless of the opinion that may be had about the correctness and timeliness of the tweets published by the defendant and the tone used in them, it must be concluded that the legal and jurisprudential requirements do not meet. to consider roles none of the crimes charged. “
The magistrate asserts that the right to freedom of expression, “which of course implies the possibility of criticism, should be exercised, although unfortunately this is not always the case, with respect for others and tolerance for the ideas of others, without having to resort, as in the case under trial, to unfortunate and provocative expressions, but the truth is that not all verbal excesses, nor Any message that goes beyond the constitutional protection, for that reason alone, must be considered as constitutive of a crime, offering in any case our legal system other forms of reparation for such excesses that do not necessarily go through criminal incrimination “.
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Finally, and in relation to the crime of coercion, the judge says that in this case “In the conduct described in the complaint, the concurrence of the elements proper “to said crime is not identified, since “elements such as the use of violence or intimidation are not distinguished, without prejudice to the fact that the conduct carried out by the accused has been annoying or even disturbing for the complainants, the element of intimidating violence projected directly is not credited on them to force them to adopt a certain behavior, and there is no record that, after the statement issued with the technical team on February 2, 2017, the players saw their freedom in this regard restricted and they were prevented from making other public statements in support of your partner “.
“It cannot be understood that the behavior of the accused reaches the seriousness that implies its classification as a crime of the Article 172 of the Penal Code, which cannot be appreciated from the sole disturbance of the state of mind “, since” a conduct of sufficient intensity and a clear restriction of the right to freedom of action of the victim is required, which does not attend, so include the facts declared in the crime of coercion would suppose an excess in the application of the penal norm “, concludes the magistrate, who by all the previous thing acquits the defendant of the crimes of insults with publicity, hatred and coercion attributed to him by the accusation exercised by the Royal Betis.
Reference-www.elperiodico.com