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CASE FILE: VALTONYC CASE

SUMMARY

During 2012 and 2013, a Spanish rapper known as Jose Miguel Arenas
(known as Valtonyc), released some songs available for free that contained some
lyrics that referred to actions to the terrorists groups ETA and GRAPO, as well
as, mentioning murdering the politicians and members of the Spanish Royal
family.

As a result of these statements contained in the lyrics, criminal charges

were brought against Valtonyc under articles 578 and 579 of the Criminal Code
for “exalting terrorism and humiliating its victims”, and under article 169.2 of
the Code for “slandering and insulting the Crown”. The controversy lies on the
limits on the freedom of expression. He was convicted for glorifying terrorism,
hate speech, incitation of violence and for slandering (injurias).

The National Audience Court referred to various Spanish and European

Court of Human Rights (ECtHR) judgments in reaching its decision to convict
Valtonyc. It referred to a decision from the Spanish Constitutional Court, STC
136/1999, which had held that as threatening some citizens or voters infringes
the rights of those individuals and threatens the development of a free society it
is not a legitimate exercise of the right to freedom of expression. The Court also
made reference to the Constitutional Court’s judgement in STC 112/2016 which
had defined hate speech as “speech inciting violence or discrimination against
certain groups” and held that criminalizing such speech was a legitimate
limitation of the right to freedom of expression. The National Audience Court
accepted the test set out in the Constitutional Court’s decision in STC 177/2015
that, when determining whether an expression of opinion is permissible, a court
must determine whether the expression is of a political opinion meant to
stimulate public debate or an expression of personal hatred and intolerance as
the latter cannot be protected by the right to freedom of expression.

The National Audience Court noted that Valtonyc could not “ignore the
capacity of some of his song lyrics to create fear and anxiety … no matter his
intention or ability to commit such acts nor the victim’s appreciation of the
probability that the threatening facts happens”.

Accordingly, the Court held that the offences were legitimate limitations
to the right to freedom of expression and that the right cannot be used to justify
any incitement to commit a terrorist act. The Court convicted Valtonyc and
sentenced him to three and half years’ imprisonment.

Valtonyc filed a cessation complaint before the Spanish Supreme Court,

arguing that the National Audience Court’s decision infringed his right to
freedom of speech as the lyrics were merely his exercise of artistic creativity and
so an exercise of freedom of expression.

That cessation complaint before the Spanish Supreme Court, did not
prosper and it ended in the judgement of National Audience Court being
ratified.
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Valtonyc also tried to appeal to the Spanish Constitutional Court, but it

did not prosper. As they also understood that he surpassed the limits of freedom
of expression.

After being given a limit date to enter prison Valtonyc decided to flee
Spain and he went to Belgium where he appealed to the European Court of
Human Rights but was also rejected. Nowadays, he is waiting for the judgement
after appealing before the Court of the European Union.

These past months, it has been made public that Juan Carlos I did have
100 million euros that were given by him by the arab monarchy, that would
make the arguments used in some of the Valtonyc songs true so the slander
against the Crown could be dismissed. Although, as the King of Spain holds
inviolability he cannot be tried so they can neither prove the accusations.

QUESTIONS:

1. Who maintain(s) the accusation (prosecutor, popular action,

particular action)?
The accusation is maintained by both the prosecutor and a particular
action from Pelayo represented by Julio Rico Esteban. The particular action was
taken by Pelayo as he was one of the politicians that received threats in his
songs and was the person that reported him. The prosecutor takes part
protecting the Rule of Law and the public interest. In the article 3 of the Law
50/1981 establishes that the prosecutor’s office will take part in penal and civil
actions in case of crimes and they intervene in penal process. Once this case
arrives to the Supreme Court the prosecutor will be a Prosecutor of the Chamber
of the Supreme Court.
2. Who is (are) defendant(s)?

Valdonyc and his team. In Spain, the procurator that represents him is
Miguel del Álamo García and he is defended by Aitor Jiménez Gonzalez. In
Belgium, he changed defendant and now are Paul Bekaert and Gonzalo Boyé.

3. What courts have the competence in the case you have chosen
(investigation, trial)? Which courts would be responsible for
the appeal? Please describe competences of all these courts.
In this case as we are talking about offenses against the Crown,
nonconditional therats and incitement of terrorism (apologia al terrorismo) the
case will go directly to the Penal Chamber of the National Court, not only
because of the subjects matter but because the disablement that the incitement
of terrorism has a penalty of between 6 years and 20 years, which is higher than
the five years max needed to be judged on the Central Penal Court. But firstly,
they will be investigated by the Central Investigation Court whose competences
are:
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 Requests for information from the EU competent authorities when it

requires judicial authorization.
 Management of files on execution of the European arrest order and
surrender. Emission and execution of other mechanisms of mutual
recognition when it is not competence of other courts.
 Management of files on passive extradition (from Spain).
 Investigation for cases that are in competence of National Court or
Central Criminal Courts.
The competences of the National Court that will see the case after the
investigation done on the Central Investigation Court are the following:
 Imprisonment of more than five years
 Offences against the King / Crown, his (her) partner; successors,
important national institutions and system of Government (=terrorism).
 Forgery of payment meanings and other crimes related to that committed
by organised crime.
 Fraud and scheming for the raising of prices of things that can make a big
influence on security of commercial traffic, national economy or damage
to the property of persons in more than one province.
 Trafficking of drugs, forgery of food and medicines performed by the
organised crime and affecting territory of different provinces.
 Offences committed abroad to which Spanish jurisdiction is applied. ▪
Any other crimes related to the above mentioned.
 Continuation of the processes or execution of the sentences taken abroad
when according to international treaties Spanish judicial authorities
continue the process and when it is not assign by the law to another
court.
 Questions of transfer of jurisdiction that derive from international
treaties.
 Decisions on passive extradition (extradition from Spain) when a person
has not agreed to be extradited.
 Other foreseen by the law.
The Court responsible for the appeal will be the Second Chamber of the
Supreme Court, by a casation appeal. The appeal will be directly to the Supreme
Court because the first instance was the National Court as it is regulated in the
article 847.1 of the Criminal Procedure Law. The objective competences of this
Chamber are:
 Unique first grade court for the investigation and trial of criminal cases
where the defendant is:
1. the Presidents of the Government, the Congress, the Senate, the
Constitutional Court, the Supreme Court, the National High Court, the
High Courts of Justice and their Chambers, members of the Government,
the Congress, the Senate and the General Council of Judicial Power, State
Prosecutor, magistrates of the Constitutional Court, Supreme Court,
High National Court, High Court of Justice Ombudsman, (…),the
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President and counselors of the Autonomous Communities if it is

foreseen by the Statute of the AC.
2. (novelty of 2014) the spouse of the King or of the Queen, the
Princess or Prince of Asturias and their respective spouses, abdicated
King or Queen and their respective spouses. IMPORTANT: in the Second
Chamber there is no requirement that the deed shall be related with the
duties of these persons.

 Others if foreseen by the law.

In addition, the functional competences of the Second Chamber of the
Supreme Court are:
 Appeals of cassation, revision and other extraordinary ones.
 Questions of the competence when there is no other direct higher court.
As this case entails a constitutional problematic related to the article 20
of the Spanish Constitution and article 19 of the International Pact of Civil and
Politic rights, it can be brought before the Constitutional Court. The
competences recognized for this Court are the following:
 Appeals and the question of unconstitutionality against laws, regulatory
provisions or acts with the force of law of the State and the Autonomous
Communities;
 The preliminary appeal of unconstitutionality against projects and
proposals for reform of Regional Autonomy Charters;
 Appeals and issue tax against provincial laws of the provinces of Alava,
Guipuzcoa and Vizcaya;
 The amparo for violation of fundamental rights listed in Articles 14 to 30
of the Constitution;
 Constitutional conflicts of jurisdiction between the State and the
Autonomous Communities or among them;
 Conflicts between constitutional organs of the State;
 Conflicts in defense of local autonomy;
 Conflicts in defense of the provincial autonomy;
 Declaration on the constitutionality of international treaties;
 Challenges of provisions and resolutions of the organs of the
Autonomous Communities provided for in Article 161.2 of the
Constitution;
 The auditing of the appointment of the judges of the Constitutional Court
to judge whether they meet the requirements required by the
Constitution and its Organic Law;
 Of other materials that attribute the Constitution and organic laws.
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Again, as we are talking about a fundamental right such as freedom of artistic

expression, Valtonyc has also appealed to the European Court of Human Rights.

4. Who has acted as judicial police in this case? What actions

have been taken?

After the report from Pelayo the “Brigada Provincial de Información de la

Jefatura Superior de Policía de Baleares” started investigating and after
discovering the song lyrics that supposedly were a crime, videos where he
threatened and insulted other public institutions and screenshots of his social
media activity, they reported them to the Central Investigation Court.

On the 23rd of December 2012, Valtonyc was deteined in his house by the
National Police and he Civil Guard. In 2018, when he fled Spain, he was
searched by the National Police in airports, train stations and centers of
transportations.

5. What kind of evidences have been presented to the court

(testimonies, forensic reports, etc.)? Please explain one of
them with more details.
The evidence presented before the National High Court were mainly song
lyrics and some videos where he incited to kill prosecutors and civil guards. The
song related with the offences against the particular action was “CIRCO
BALEAR”, in which there were a lot of song lyrics against Pelayo and his
political party. The lyrics are for example: “Pelayo deserves a nuclear bomb”;
“We want the death of all of them pigs”; “I will tear his artery and all what is
needed”
The evidence presented to sustain the offences against the Crown are
mainly presented in a song named as said in the judgement: “King Jacobo”. The
lyrics are: “The King Jacobo and his things I don’t know if he was hunting
elephants or going with prostitutes, there are things we cannot explain, like why
he used his brother as a target, now his half-brothers are arab and he asks for
money to buy weapons, they make his bed, they clean the dishes y meanwhile
miss Adela is in a yacht f*cking and that hurts, doesn’t it!” “The third age is also
hungry, but they still support the monarchs, ignorant masochists. We cannot
choose, we do not have an option, but one day we will take Marivent with a
Kalashnikov”
Note: These lyrics are translated first from Catalan to Spanish, and then from
Spanish to English so there might be some meaning lost in translation.
6. What was the sentence?
The National High Court found him guilty in concept of author of a crime
of glorifying terrorism (enaltecimiento al terrorismo) of his authors and
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humiliating their victims which entails a penalty of two years in prison and
absolute disablement for eight years; he was also found guilty of severe offences
against the Crown which entailed a prison sentence of six months and special
disablement of the passive suffrage during the time in prison; and finally,
nonconditional threats for which he will have to pay Pelayo 3000 euros as a
compensation. They did not consider he committed a hate crime as he did not
threaten or insult any vulnerable minority.
The Supreme Court will reject the appeal in cassation presented by
Valtonyc, as they do not see any of his fundamental rights being breached and
the Constitutional Court will not admit his amparo appeal. Neither the
European Court of Human Rights will admit his appeal. Right now, Valtonyc is
waiting for the judgement of the Court of the European Union

CASE Valdonyc
TYPE(S) OF ACCUSATION Prosecutor and particular action
PRESENTED
COURT COMPETENT FOR THE Central Investigation Court
INVESTIGATION
COURT COMPETENT FOR THE National High Court
TRIAL
COURT COMPETENT FOR THE Supreme Court, Constitutional Court,
APPEAL European Court of Human Rights
and Court of the European Union
SECURITY FORCES THAT National Police
ACTED AS A JUDICIAL POLICE