Acquittal by the National High Court
In the first case, the Second Section of the Judicial Chamber for Criminal Cases tried a person for tweeting potentially hurtful messages between 2014 and 2015. The court began by stating that it is not its mission to make reprimands for "scarcely social behaviors nor judgements regarding urbanity or courtesy."
It then recalled that jurisprudence has been restricting the enforcement of Article 578 of the Criminal Code with regard to the glorification of terrorism. It thus based its arguments on Decision 378/2017 of the Supreme Court, dated 25 May.
According to that decision, in addition to the referred requirement of the individual's intention or motivation (inciting acts of violence, even if indirectly), there is another prerequisite: the existence of a situation of danger for people, the rights of others, or the system of civil liberties itself.
The court thus concluded that, at this moment, given the suspension of armed activities by ETA since 2011, all potential dangers, including abstract ones, are dismissed, and therefore the only possible conclusion is acquittal.
Supreme Court confirms acquittal
The First Section of the National High Court had acquitted a Twitter user of the crime of glorifying terrorism for nine messages published between 2010 and 2016. The district attorney (DA) appealed that decision to the Supreme Court.
The Supreme Court was unconvinced by the DA’s arguments. According to the Supreme Court, some sort of incitement is necessary, even if indirect (Decision 112/2016 of the Constitutional Court). Secondly, in addition to intentionality, the messages must promote, “even if indirectly, a situation of danger” for people, rights, or the system of civil liberties (Constitutional Court Decision 112/1916 and Supreme Court Decision 378/2017). The Supreme Court highlighted the importance of this objective and determining factor.
No risk of danger
The court referred to Article 5 of Directive (EU) 2017/541 regarding terrorism and stated that the European norm also requires that the provocation entails a danger of terrorist acts being perpetrated.
This conclusion derives from consideration 10, which states: "…[S]uch conduct should be punishable when there is danger that terrorist acts may be committed. In each particular case, when considering whether there is such a a danger, the specific circumstances of the case should be taken into account, such as the author and the addressee of the message, as well as the context in which the act is committed. The significance and the credible nature of the danger should be also considered when applying the provision on public provocation in accordance with national law"
Thus, interference with freedom of expression is considered legitimate when expressions foster or promote, even indirectly, a situation of danger (even if such danger is abstract).
The Supreme Court concluded that the tweets published by the defendant did not generate any risk or danger that terrorist acts may be committed. According to the court, the context in which those messages were made demonstrates "a critical spirit unrelated to any violent incitement."