Is it fair that Echenique is condemned for his words and Ortega Smith is not?


Posted: Thursday November 26 2020 19:49

In just days, the courts have examined the controversial protests by two prominent political leaders and handed down seemingly disparate court rulings. The Supreme Court refused to open proceedings against Vox chief Javier Ortega Smith for saying in an interview with TVE that the 13 Rosas, young women between 18 and 29 years old who were shot dead in Madrid during the civil war , engaged in “torture, rape and murder villy.” However, a court in Leganés condemned a few weeks ago the spokespersons of Pablo Echenique and Juan Manuel del Olmo to compensate the brother of a murdered 80,000 euros for claiming to have raped the candidate for training in Ávila, Pilar Baeza.

Specifically, Echenique defended Baeza’s candidacy in the 2019 municipal elections with the argument that “the events took place 35 years ago” and pointed out that his party partner “had been raped”. Del Olmo, for his part, wrote a tweet in which he hugged his fellow believer assuring him that “he was raped. “Her boyfriend then shot the man who raped her. She was found guilty of complicity and paid her debt to society, ”he added.

Different routes: criminal and civil

The fundamental difference between the two episodes lies in the jurisdiction employed by the injured party. The 13 Rosas Asturias association has chosen to lodge a criminal complaint before the second chamber of the Supreme Court, before which Ortega Smith is assessed for his status as a national deputy, for crimes of incitement to hatred and insults and slander, while the brother of the murdered man brought a civil action for violation of the right to honor.

In criminal proceedings, the principle of minimal intervention governs, which establishes, according to the jurisprudence of the Supreme Court, that “the criminal sanction should not act when there is the possibility of using other means or instruments non-criminal legal systems to restore the legal order “. In other words, a procedure should only be opened when there are clear indications of a crime. In civil law, we seek to restore a violated fundamental right, in this case that of honor and one’s own image, and for this economic compensation and public rectifications are required in the same format as the demonstrations that motivated the opening of the procedure.

The civil conviction against Echenique and Del Olmo, which is not final and could be overturned in higher courts, is justified because the charge of rape to the murderer took place despite the fact that the Supreme Court has ruled that there was no evidence that “this could have happened”. “The fact that the infringement may have occurred is not a trademark patent so that it can be asserted that the infringement existed – as do the defendants, who have not included in their statements the element of probability that she could have been raped, but rather declared it bluntly – “he signaled the resolution.

There is no slander or hatred, but the civil way remains open

The ordinance on Ortega Smith, issued unanimously by five magistrates of the second chamber of the Supreme Court, chaired by Manuel Marchena and with a presentation by magistrate Juan Ramón Berdugo, maintains that the legal requirements that justify the imputation of ‘Ortega Smith do not agree in this case. for a crime of incitement to hatred.

This type of crime persecutes << those who publicly encourage, promote or incite, directly or indirectly, to hatred, hostility, discrimination or violence against a group or part of it or against a person specific because of their membership in this group, for racist, anti-Semitic or other reasons referring to ideology. And at the same time, those who "attack the dignity of people by actions which involve humiliation, denigration or discredit" of one of these groups.

The Supreme Court understands that Ortega Smith’s statements may undermine the dignity of the 13 Rosas, but considers that they are protected by the right to freedom of expression and cannot be considered as inciting hatred “with a relevant danger capacity ”. by remoteness at the time of the civil war. “It is not a question of requiring the concordance of a context of crisis in which legal assets were already in danger and which would be increased by the behavior in question, but rather of examining the potentiality of the behavior to create a danger, and in current Spanish society – more than 80 years after the events – already presents a clear rejection, ”he argues.

With regard to insults and calumnies, she emphasizes that these crimes< s'éteignent avec la mort de la personne offensée >>, as provided for in the current Penal Code which, unlike that of 1973, does not authorize the heirs of the injured party to bring charges. However, the resolution leaves open the possibility that the families of the 13 Roses or the public prosecutor’s office, ex officio or at the request of the person concerned, can initiate civil protection action for violation of their right to honor.

The sentence pronounced by the Permanent War Council of the Franco party in 1939 condemned the 13 young women, activists of the Unified Socialist Youth (JSU), to death for the crime of “joining the rebellion”. In no case did the resolution indicate that anyone had been severely tortured, raped or murdered.

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