The Framework of Criminal Law
Legislation on Bias-motivated Violence
|Bias-motivated Violent Crimes as Specific Offenses||Bias as an Express General Aggravating Factor||Bias as an Aggravating Factor in Specific Common Crimes|
Bias Types Covered by Provisions on Aggravating Circumstances
|Race/National Origin/Ethnicity||Religion||Sexual Orientation||Gender||Disability||Other|
Bias as an Express General Aggravating Factor
The Criminal Code of Spain contains general provisions that expressly enable the racist or other bias motives of the offender to be taken into account by the courts as an aggravating circumstance when sentencing. In particular, article 22.4 defines situations in which a crime is committed on racist, antisemitic, or other discriminatory grounds related to the victim’s ideology, religion, or beliefs or his/her belonging to an ethnic group, race, nation, gender or sexual orientation or his/her suffering from an illness or handicap as aggravating circumstances.
In its Third Report on Spain, the European Commission against Racism and Intolerance (ECRI) expressed concern that these criminal law provisions were rarely applied. ECRI reported that
In particular, civil society organizations have expressed concern at the non-application of Article 22(4) of the criminal code even in cases when such motivation was reportedly easily detectable. It has been pointed out that problems in the implementation of these provisions can be found at all stages of the criminal justice system: from the police, who reportedly sometimes fail to record the racist dimension of the offences reported to them by the alleged victims, to the prosecutors and judges. In this respect, ECRI understands that there are no specialized units within the police and the Office of the Prosecutor to deal with racially motivated crime, incitement to racial discrimination, hatred and violence and associations promoting racism, as there are for other types of crimes. More generally, ECRI has not been made aware of particular initiatives undertaken by the Spanish authorities since its second report aimed at improving the implementation of the criminal provisions mentioned above, although it notes that some civil society organizations plan on training law enforcement officials on these issues. The Spanish authorities have also reported that specific training sessions on hate crimes are being introduced for professors and students at training centers for law enforcement officials.
The European Network against Racism (ENAR)’s 2007 Shadow Report, “Racism in Spain” agrees with ECRI’s findings. ENAR states that there is “a total lack of acknowledgement and recognition of the racist motivation in any judicial sentence. This lack of judicial response is related to the lack of social and legal concern and support of attorneys and judges.” ENAR concludes that the lack of a national debate or training for attorneys and judges on this issue attributes to the lack of attention to racially motivated crime and aggravated circumstance application.
As a result, ECRI recommends that the Spanish authorities provide further training on this subject to all actors involved in the criminal justice system and raise awareness of the need to actively counter racially-motivated crime.
In 2009, Article 22(4) was used in sentencing of Josué Estébanez. On October 19, the judges of the Madrid Provincial Court held that the lethal stabbing of 16-year-old antifascist Carlos Palomino by 25-year-old Josué Estébanez in November 2007 was provoked in part by Estébanez’s neo-Nazi beliefs. The victim was an antiracist and antifascist. The perpetrator was sentenced to 26 years in prison. This was the first time that Madrid courts have considered ideology an aggravating factor in the case.
 OSCE/ODIHR, “Spain: Hate Crimes,” Legislationline, http://www.legislationline.org/topics/country/2/topic/10/subtopic/37.
 ECRI, “Third Report on Spain,” adopted on June 25, 2005, and made public on February 21, 2006, para. 6
 ECRI, “Third Report on Spain,” para. 8.
 ENAR, “Racism in Spain”, http://cms.horus.be/files/99935/MediaArchive/pdf/en/Spain%20-%20SR%202007.pdf.
 ECRI, “Third Report on Spain,” para. 6.
 diarodesevilla.es, “Asesinato por odio ideológico,” Editorial Opinion, October 20, 2009, http://www.diariodesevilla.es/article/opinion/543331/asesinato/por/odio/ideologico.html.