The Spanish Rapper Extradition Case Before a Belgian Court Fires up the Legal Discussion on Freedom of Expression and Other Fundamental Rights

[Simon Bekaert is an Attorney at Law at the Bekaert Law Firm. This article was written in the context of the JUSTICE project, a cooperation of International Commission of Jurists – European Institutions (ICJ-EI), NJCM, Human Rights in Practice, Magistrats Européens pour la Démocratie et les Libertés, Scuola Superiore Sant’Anna di Pisa, Juezas y Jueces para la Democracia and Neue Richtervereinigung.]

In 2018, rapper Valtonyc fled his home country, Spain, to Belgium to avoid years of imprisonment. The extradition dispute that has since been going on between these two Member States of the European Union has sharpened the discussion about freedom of expression and an overly broad interpretation of the term “terrorism”.

In 2012, Mallorcan rapper Valtònyc, real name Josep Arenas Beltran, was arrested at the age of 18 for the content of some rap songs he posted on YouTube and sang during performances. He was released again awaiting prosecution, and five years later, he was sentenced to 3,5 years imprisonment for these lyrics.

In his songs he mocked the Spanish Royal Family, he referred to violent Grapo and Eta actions in the 1970’s, including the attack on Carrero Blanco in 1973, the then prime minister of Spain under dictator Franco. He also sang that he would drop an atomic bomb on the head of far-right politician and nationalist Jorge Campos – with whom he had a public feud at that time.

The rapper was not prosecuted nor convicted for incitement of terrorism.

However, the Spanish Court did rule that his lyrics glorify terrorism and involved disdain or humiliation of relatives of victims of terrorism (in this case their next of kin), which constitutes a crime under article 578 of the Spanish criminal code .

For his rap songs, Valtònyc was convicted, and sentenced to 3,5 years of imprisonment, based on:

– Defamation of members of the Spanish Royal Family (House of Bourbon): 1 year of prison              

– Glorification of terrorism and humiliation of victims of terrorism: 2 years of prison          

– Threats to Jorge Campos: 6 months of prison            

On 23 May 2018, just a day before he had to report to prison to serve his sentence, Valtònyc fled from Mallorca to Belgium. Belgium does not have a law criminalising glorification of terrorism. A proposition of law in that regard never secured a majority within the Belgian Parliament.  

The Spanish authorities issued a European arrest warrant, demanding Valtònyc’s extradition.

The legal proceedings on the extradition are still pending before the Belgian Court.

Up until 8 years after their release, and after the conviction and the extradition request, the songs remained on YouTube and were not removed by any authority.  

Over its course, the court case related to the European arrest warrant for Valtònyc, raised several major legal issues on fundamental rights and on the rule of law in a democratic society, among them the problem of an overly broad use of the term “terrorism”,  restrictions on the freedom of speech, the chilling effect,  and deviation from the prohibition of retroactive application of the criminal law. The Belgian Court of appeal, which still has  to rule on the extradition, has pulled both the European Court of Justice and the Belgian Constitutional Court into the legal proceedings.

1. Freedom of expression

Rapper Valtònyc was not the first to be convicted. In a report dated March 13, 2018 , Amnesty International describes numerous Spanish condemnations in the artistic sphere, which according to Amnesty curtail freedom of speech and expression.

Offending and shocking lyrics might be subjected to moral rejection. Just as every person has the right to use artistic expressions that shock, it is also the right of every person to label these expressions as offensive or inappropriate. However, rejecting lyrics in social debate is one thing, criminalizing songs and performances is another. The first is also an expression of freedom of speech, the latter is a suppression of freedom of speech by means of state coercion.

Freedom of speech has never been an absolute right, not even in the most liberal democracies. However, limitations on this fundamental right should be restricted and monitored with considerable suspicion.

Twenty-eight years ago the metal rapper and Hollywood actor Ice-T produced a hit song ” Cop Killer”, in which he raps in great detail about shooting a policeman. It was never meant to be taken seriously, and certainly not meant to incite real violence. Today by current Spanish law, these lyrics would be classified as a criminal glorification of terrorism. Other examples are Bob Marley (‘I shot the Sheriff’) and The Offspring (‘Kill the president’). Their songs meet all the constitutive elements of the criminal offense as described in the Spanish criminal code and established by recent Spanish case-law. The same goes for the UK and French anti-terrorism law.

The recent spread of criminal convictions in the above-mentioned genre is worrying.

Restrictions on freedom of speech have quietly mounted in recent years. At the same time, by imposing prison sentences, judicial authorities aim to impose a “ chilling effect”, to create an atmosphere of self-censorship. As pointed out by the European Court of Human Rights in a series of judgements, the mere fact of pursuing a chilling effect is contrary to freedom of speech.

It is even more worrying when statements regarding historic events are targeted and labelled as the criminal offense of glorification of terrorism. After all, one person’s terrorist is another’s freedom fighter.

The offense of “humiliation of victims of terrorism” is also at odds with the right to freedom of expression. Even more so when this applies to historic events in regard to the children or grandchildren of the victims, and when an official complaint from the victims or from their next of kin is not even necessary for criminal prosecution. The best example of this are the tweets of a Spanish student, in which she joked about the same prime minister Carrero Blanco assassinated in a 1973 bombing by Basque separatists, cheering his death. At first instance, she was sentenced to one year suspended prison for humiliating victims of terrorism, namely the grandchildren of Mr. Blanco. The fact that Mr. Blanco was a controversial figure himself, and that his granddaughter spoke out against prosecution, was not even taken into account.

2. EAW: An overly broad use of the term terrorism

In order to get Valtònyc extradited to Spain, the Spanish judiciary issued an European Arrest Warrant that relies  on article 2.2. of the  European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States that makes extradition mandatory in the event of terrorism, even if the act itself does not constitute a criminal offense by the law of the executing State.

The Belgian court of first instance nevertheless refused extradition with the following argument:

“ Given the time of the adoption of the European Arrest Warrant framework decision and the European Arrest Warrant law ( shortly after the attacks of 11 September 2001), it is clear that the term terrorism in the list refers mainly to contemporary international terrorism and not – as in the present case – historical national terrorism ”.

According to the Belgian Court of first instance the mere glorification of acts committed more than 40 years ago does not constitute a criminal offense by Belgian law, and does not fall within the definition of “terrorism” as meant in the European Arrest Warrant Framework decision.

The debate on whether or not glorification of historic ‘terrorism’ should be a crime, is not without importance. It is about imposing restrictions on freedom of speech and expression that we were not used  to in the pre-terrorism-bill era. If one applies the constitutive elements of the criminal offense of glorification as they exist today in Spanish criminal law but also in UK and French law, this inevitably  leads to the criminalization of the glorification of notable historic figures like for instance Michael Collins, Menachem Begin, Nelson Mandela, etc. All of these people organised– at a certain point in their career – acts of violence against people or state infrastructure which by today’s anti-terrorism laws would constitute acts of terrorism.

Furthermore, how far must one go back in time before glorification of historic events would no longer be punishable? Events that date from 50 years ago ? 100 years ?

3. Violation of the prohibition on retroactivity of criminal law

The ongoing extradition procedure between Belgium and Spain regarding Valtònyc, also spawned a judicial debate on the principle of non-retroactivity of criminal law imposing more severe penalties.

International law prohibits retroactively applying more severe penalties.

Since glorification of terrorism is not a crime by Belgian Law, the Spanish judicial authorities rely on article 2.2. of the Framework decision on the European arrest warrant, which provides that in case of one of 32 exhaustively listed offences (among them “terrorism”), the criterion of “double criminality” does not have to be met in order to extradite the person sought.

The Framework decision states that a surrender for one of these 32 possible offences (the so called “list facts”) can only take place if the offense is punishable by a maximum term of imprisonment of at least three years.

However, at the time of both the offenses in 2012 and the conviction in 2017, the penalties provided by the Spanish criminal code for glorifying terrorism were lower.

After 2017, the Spanish legislator increased the penalties and subsequently the Spanish authorities based their European arrest warrant on these new criminal laws containing more severe penalties.

Given that this would mean contravening the principle of retroactivity, the Belgian Court of appeal addressed a preliminary question on the matter to the European Court of Justice in Luxembourg.

During the procedures before the European Court of Justice, the Spanish and Belgian government argued in favour of a retroactive application of more severe punishments in the context Framework decision on the European Arrest Warrant.

This  containment of the principle of non-retroactivity went too far, even for the European Commission. The Commission intervened as a party in the procedure to take up the defence on non-retroactivity.

By judgement of 3 March 2020, the Court of Justice ruled that he executing judicial authority must take into account the law of the issuing Member State in the version applicable at the moment of the facts, and not a later more severe version of the law. The retroactive application was rejected.

4. Extradition pending for the “lese majeste” offence

The ruling of the CJEU clarifies one of the legal points of contention, but the extradition case itself is still pending for the Court of Appeal in Belgium.

Following the 3 March 2020 judgement of the CJEU, the extradition of Valtònyc for glorification of terrorism seems off the table.  The offense of unconditional threatening Jorge Campos also seems off the table, since no equivalent criminal offence was found in Belgian criminal law.

Regarding the offence of ‘lese majeste’, there is an equivalent for the Spanish criminal law in Belgian legislation, namely a law from 1847 making it a special offense to insult the king.

On 15 September 2020, the Court of Appeals addressed a preliminary question to the Belgian  Constitutional Court asking whether or not this Belgian law, conferring a special legal status and privilege on the King, shielding him from mockery and criticism more than ordinary legal subjects, undermines the fundamental right of freedom of expression as guaranteed in article 19 of the Belgian constitution, and in article 10 of the European Convention on Human Rights.

The Belgian constitutional court has not yet set a date. To be continued.