Spain
Background
Spain is a constitutional monarchy with a bicameral parliament. The population of around 46 million people enjoy constitutional guarantees of secularism, though in practice there are extant religious privileges, in particular for the Catholic Church. According to a recent survey, two in three state that they are Catholic, however only 22.7% are practising.
Section 16 of the Constitution guarantees “freedom of ideology, religion and worship” to individuals and communities with no restrictions other than those necessary for the protection of public order.
Subsequent sections of the Constitution provide guarantees for the rights to freedom of expression, conscience, assembly and association. The Organic Law on Religious Freedom (Ley Orgánica 7/1980, de 5 de julio, de Libertad Religiosa) specifies that freedom of religion includes the right to freely express one’s belief or lack thereof.
‘Blasphemy’ laws
Despite the decriminalisation of “blasphemy” per se in 1988, a de facto “blasphemy” law remains on statute and has resulted in a small number of prosecutions. Article 525 of the Spanish penal code outlaws “offending” or “derision” of religious “feelings”, “dogmas”, “beliefs” or “rituals”.
A de facto blasphemy law is still on statute and is sometimes enforced. Article 525 of the Spanish Penal Code reads:
“1. Those that, in order to offend the feelings of members of a religious confession, make public derision, orally, by writing or through any type of document, of their dogmas, beliefs, rituals or ceremonies or mistreat, also publicly, those who practice that religion, will be punished with a fine between eight to twelve month of their salary. 2. Those that make public derision, orally or by writing, of people who do not confess any religion will incur in the penalties set in the previous paragraph.”
There have been a number of prosecutions under this law in the last several years. Most of these cases have been brought by the Spanish Association of Christian Lawyers and by a Catholic legal association, the Tomás Moro Legal Center.
Promises of repeal – as yet – unfulfilled
Moves to repeal blasphemy have long been discussed in parliament and have been the subject of sustained campaigning for many years. In October 2018, the Spanish Congress of Deputies voted 180 to 166 in favour of abolishing penalties for blasphemy, however, little progress has been made since.
Following international condemnation of the use of laws that unduly restrict freedom of expression, in February 2021 the government announced that it would amend penalties for laws restricting freedom of expression, among them its blasphemy law. However, the Ministry of Justice did not go so far as to say that the law would be repealed outright, indicating that “because they affect fundamental rights, the executive must be ‘especially careful with the reform proposals.’”
In the same month, the Justice Commission of the Senate passed a motion calling on the government to repeal Article 525 of the Penal Code.
Cases
Three women, Rocío Ballesta, Antonia Ávalos and a third woman who has chosen anonymity, were dragged through five years of criminal proceedings following a peaceful march in 2014, on charges of “crimes against religious sentiment”, before the case was finally thrown out in October 2019. The case dated back to 2014 when the accused carried a large latex model of a human vulva during a general worker’s union march. The model, named the coño insumiso (rebellious pussy) was a parody of the effigies of saints and the Virgin Mary, which are still carried on religious parades in Spain. The three women said they were marching on behalf of the “Guild of the Sacred Rebellious Pussy and the Sacred Burial of Social and Workers’ Rights”. The proximate reason for the “rebellious pussy” protest was “to draw attention to their belief that the church’s teaching denied women fundamental rights at a time when the government was planning to introduce a restrictive abortion law.”
The case was first dropped in 2016 because the court found that the defendants were entitled to the freedom of expression represented by “publicly proclaiming that you don’t follow a religious faith”. However, the Association of Christian Lawyers then brought a civil action for “crimes against religious sentiment” and “mocking Catholic symbols and dogma”. During the second trial, defendant Ávalos said, “We feel that we are being persecuted and criminalised for defending women’s sexual and reproductive rights”. Campaigners condemned the new trial as an attack on free expression. Finally dismissing the case on 11 October 2019, the judge said the point of the parade had not been to offend religious sensibilities but to “defend social, workers’ and feminist rights.” This appears to leave the door open to other cases where “offending religious sensibilities” is considered part of the intention.
In November 2020, an anonymous women’s rights activist was sentenced to pay a 10 euro fine each day for nine months after she was convicted of hurting religious sentiments for her alleged participation in a women’s day march in 2013, which was deemed to mock the Easter processions that are held throughout the country each year.
In October 2019, the European Court of Human Rights agreed to hear a complaint lodged by the Association of Christian Lawyers against an artist whose 2015 photography exhibition featured the word “pederasty,” formed by consecrated communion wafers. The Association of Christian Lawyers filed a lawsuit against the artist, alleging he committed an “offense against religious sentiments and desecration.” A regional court in Pamplona had previously declined to hear the case, and the country’s Constitutional Court declared it to be inadmissible.
Historical cases
In 2004, the Spanish singer Javier Krahe was accused of blasphemy based on a short-film shot in 1978, where the artist allegedly showed how to cook a crucified Christ. The case was open for eight years and in 2012, after multiple attempts by the Tomás Moro Legal Center to prosecute him, the judge ruled that there was no intention from the defendant to humiliate religious beliefs and Krahe was acquitted.
During his play The Revelation, comedian Leo Bassi dressed up as the Pope in an attempt to condemn religious fanaticism and obscurantism. The Tomás Moro Legal Center accused Bassi of breaching Article 525. However, the court concluded in 2015 that apparently believing in a religion and publicly manifesting it (even in the form of satire chosen by Bassi) is protected under freedom of expression. Bassi also received multiple death threats and on 1 March 2015, during one of the comedian’s shows, a homemade explosive device was put under a theatre chair (luckily, the bomb caught fire, but did not explode).
In July 2017, the Spanish actor Willy Toledo wrote a Facebook post to express his indignation after three women were charged for offense against religious feelings by parading a large model of vagina through the streets of Seville during what was called the Procession of the insubordinate pussy. The Facebook post read:
“I shit on God and have enough shit left over to shit on the dogma of the saintliness and virginity of the Virgin Mary. This country is unbearably shameful. I’m disgusted. Go fuck yourselves. Long live the Insubordinate Pussy.”
The Spanish Association of Christian Lawyers filed a complaint against Toledo. In May 2018, instead of appearing at court, the actor called a press conference where he stated that he had not committed any crime and therefore would not appear before a judge. In September 2018, the Court of Madrid issued an arrest warrant against Toledo after he twice failed to appear and testify in court.
In February 2020, Toledo was acquitted of charges of obstruction of justice and hurting religious sentiments.