Why will Pablo Hasél end up in prison?

BarcelonaPablo Hasél will be the first musician imprisoned in the Spanish state for his songs since the Transition to Democracy. Hasél would have to enter a penitentiary center at the end of next week, after the National Court gave him ten days to enter on Thursday of last week. The rapper, who is sentenced to nine months for a crime of glorification of terrorism and another of insult to the Crown, has said he will not surrender voluntarily, but that it will have to be the police who arrests him. The case has raised a wave of protests in defense of his freedom - this Saturday and Sunday demonstrations have been called throughout Catalonia and the State - and, along with the prison sentences of Valtònyc and La Insurgencia, has put the use of the law to silence artists in the spotlight.

More prison than after the Transition to Democracy

"They put more musicians in prison now than during the Transition. Those of us that stood up against Franco's regime were not imprisoned back then", says Lluís Llach. One of the last cases of artists in prison, just after Franco's death, was the conviction of theatre director Albert Boadella for the play La torna. Later, with Spain's attempts to be seen as a democratic country, "all the forces supporting the state needed to justify themselves to the population and to Europe", Llach recalls, so artists were not taken to court for their songs. "Now things have changed. We have more artists sentenced to prison in Spain than in Turkey, it's very serious", he adds.

The feeling that repression has been increased in recent times is shared by more artists. "We are in a less and less democratic state. Now that the monarchy has lower popularity ratings, it seems that these condemnations are a way of curbing any possibility of active dissent", explains the musician and president of the Catalan Academy of Music, Gerard Quintana. When the artists compare the current situation with that of a few decades ago, they come to the conclusion that permissiveness when it comes to criticising the king or institutions was higher then. The songs Carta al Rey Melchor (1992) by Albert Pla, Jo vull ser rey (1994) by Els Pets, and the songs by La Polla Records are some examples. "They sounded everywhere, they were almost mainstream. After the Tejero coup d'état, the state and the monarchy must have felt stronger. They sold us the story that these demonstrations didn't even tickle them. Now they are more in danger", states Quintana.Using the Penal Code as a tool of repression.

Using the Penal Code as a tool of repression

The international NGO Freemuse, dedicated to the defence of musicians' freedom of expression, warned last year that Spain is the country with the highest number of artists with prison sentences in the world. In a report, it counted that in Spain there were 14 musicians with prison sentences for their songs - Valtònyc, Pablo Hasél and the twelve rappers of La Insurgencia - ahead of Iran (13 artists with prison sentences), Turkey (9) and Burma (8). Putting them in prison is, according to Cesk Freixas, "a state strategy to create precedents and to tell other artists that music for political purposes has legal consequences and penalties".

Freemuse report on artistic freedom around the world

The judicialisation of music is evidence of its power to spread. "Hasél sings about objective facts that in other fields, such as journalism, have also been explained, but without having been imprisoned until now. This shows that music is considered a very powerful means of communication and that there are certain issues of power that the state is not interested in talking about", says Freixas. "I have sung about the monarchy and police torture that have been reflected in the press. There are well-known rappers, like Eminem, who have talked about assassinating the president of the United States and nothing has happened to them. What is happening in Spain is typical of one of the most authoritarian countries in the world", explained Hasél in an online meeting with MEP Clara Ponsatí and Valtònyc.

Musicians fear that one of the effects of the convictions will be self-censorship. "Many people will say they don't want to sing certain things. But I also hope that a wave of solidarity will be created, accompanied by songs about what they want to silence", Freixas notes. "The state wants to eliminate the media that remain free, so what singer is going to sing about the things that are happening in the face of all this? There will be fear and self-censorship, and this leads to the normalisation of fascism", stresses Llach.

To what extent does it protect freedom of creation?

Rapper Alex Nicolaev, known artistically as ELGI and who was part of the now defunct band La insurgencia, was sentenced in 2018 to six months in prison for his lyrics, along with eleven other musicians. "It's not the same to hold a rally as to sing a song. But the National High Court doesn't care about that, they don't give a damn about it", stresses ELGI, who considers the sentence a criminalisation of dissidence: "They see that our struggle has reached young people and that awareness is growing. They don't accept a different opinion". One of the arguments of his defence during the trial was precisely the right to freedom of creation. "Legally, in cases of artistic creation, we are always talking about fiction, about a work that comes from the artist's imagination. This makes it more protectable", says Carlos Sánchez Almeida, spokesperson for the Platform in Defence of Freedom of Information, who stresses that "freedom of creation is a right with specific protections within article 20 of the Constitution". 

However, above freedom of creation, "freedom of expression and opinion should take precedence, which in these cases is artistically conveyed through rap", says criminal lawyer Laia Serra. "If we amputate from the artistic world the possibility of speaking about certain political actors or events, we are treating culture as if it were a child", adds Benet Salellas, also a criminal lawyer. So why do the high courts consider that freedom of expression does not extend to artists? Salellas replies: "Spanish institutions, which are the ones that make the decisions, misunderstand freedom of expression. They accept it in order to broadcast inoffensive messages. This is not freedom, it is flattery. It is about being able to express messages that are contrary to the status quo, that shake up and may be offensive to the predominant ideology".

Criminal lawyer Teresa Vallverdú, a member of the collective Drets, says that "it is an anecdote" that the Constitution guarantees freedom of expression and that this fundamental right "is abusively restricted". "The problem is not what you say, but who you say it about", she believes. Only in a few exceptions, such as the case of the musician César Strawberry of Def Con Dos, the Constitutional Court overturned the conviction on the grounds of the right to freedom of expression.

The instrumentalisation of the crime of glorification of terrorism

In the convictions of Hasél, Valtònyc and La Insurgencia, Serra explains that the courts, starting with the National High Court, apply article 578 of the Penal Code - that of glorification of terrorism - "in a very broad and lax manner". "They do not take into account that the 2017 European directive [on the fight against terrorism] requires that there must be an explicit content of inciting violence. As with most political offences, the potential of the speeches is very subjective and this allows for arbitrary interpretations", Sierra says. Vallverdú warns that it " instrumentalises the law" in an extensive manner in order to turn these cases into an example, because "few people will want to go over the top".

In Thursday's meeting with Hasél and MEP Ponsatí, Valtònyc said that Spain "needs an enemy" to justify its repression and demobilise social movements. "I am not a member of armed gangs and I have been judged as if I were a member", regretted the rapper, who pointed out that, on the other hand, the Penal Code has not been applied against sexist music or for racist or xenophobic statements: "freedom of expression is for the political right". "We make songs. To say that we threaten is like saying that Nabokov is a paedophile because of Lolita", Valtònyc concluded.

Insults to the Crown despite Strasbourg's pronouncements

The other offence for which Hasél and Valtònyc were also sent to prison, that of insulting the Crown, shows that the High Court "is not taking into account" the pronouncements of the European Court of Human Rights (ECHR) in Strasbourg. Salellas took to Strasbourg the conviction of two boys for insulting the Crown by burning photos of the king, and the ECHR condemned Spain for violating freedom of expression. "The ECHR ruling states that there must be a certain capacity for provocation that is included in freedom of expression", recalls Salellas, who thinks that "part of the judiciary", such as the provincial courts and the courts, take this into account, "but in the courts, where it should be deeply rooted, it seems that they are resistant to Strasbourg".