Organic Law 6/2022: Glorifying Francoism and Hate Crime

Organic Law 6/2022, of 12 July, complementary to the Democratic Memory Act (BOE-A-2022-11589), introduced a significant amendment to Article 510 of the Criminal Code (CP), the provision that brings together the so-called hate crimes. The reform broadened the scope of those offences to expressly include the apology or glorification of Francoism and, more generally, of any totalitarian regime or dictatorship where that conduct disparages or humiliates its victims. As a firm dedicated exclusively to criminal law, we explain what changed, why, what it means today for anyone investigated, prosecuted or victimised, and what the lines of defence are against a charge of this kind. You can review the full picture of recent legislative changes on our criminal law reforms page.

What the reform changed and why

Article 510 CP punishes, in essence, two broad blocks of conduct: on the one hand, public incitement to hatred, hostility, discrimination or violence against groups or persons on grounds such as origin, ideology, religion, ethnicity, sexual orientation or other circumstances; on the other, the humiliation, disparagement or discrediting of those groups or their members. It is the reference criminal framework for hate crimes in Spain.

Organic Law 6/2022, passed as a measure complementary to the Democratic Memory Act, came to close a perceived gap in that framework: the apology or glorification of totalitarian regimes and, notably, of Francoism, where it translates into the disparagement or humiliation of its victims. The legislature's underlying aim was to align the criminal treatment of the exaltation of totalitarian dictatorships with the protective logic of hate crimes: what is protected is not a particular reading of history, but the dignity of the victims of those regimes against conduct that publicly disparages or humiliates them.

For that reason, the reform did not criminalise the mere remembrance, study or discussion of the past. What it penalised is conduct that, in the form of apology or glorification, adds an element of contempt towards those who suffered under those dictatorships. That distinction is the key to understanding both the scope of the offence and the lines of defence.

The affected article: the new Article 510 CP

The reformed provision is Article 510 CP, the backbone of hate crimes. The amendment builds on the elements that already existed and adds the specific scenario linked to Democratic Memory:

• Prohibited conduct. The apology, denial, gross trivialisation or glorification of Francoism or of any totalitarian regime or dictatorship, where this disparages or humiliates the victims of those regimes. Abstract exaltation is not enough: the offence requires the conduct to project that contempt onto the victims.
• Protected legal interest. The dignity of the victims and equality, in line with the rest of the hate crimes in Article 510 CP. The reform fits within that same logic, not within that of an offence of mere opinion.
• Public nature. As across the whole provision, criminal relevance is tied to conduct that is publicly disseminated or carried out in a way capable of producing the contempt or incitement effect the rule seeks to prevent.
• Subjective element. An intention to disparage or humiliate, or to incite, is required, depending on the form. Purely descriptive, informative or critical conduct, without that intent, does not complete the offence.

The practical reach is significant: the reform widens the perimeter of what can be prosecuted under Article 510 CP, but it retains its structural requirements. It is not the idea that is punished, but the conduct of contempt or incitement. That is why the boundary with freedom of expression is the central axis of any case based on these facts.

The limits with freedom of expression, art and history

The most delicate point of this reform is the boundary between hate crime and freedom of expression, freedom of artistic creation and academic freedom and research, all of which enjoy constitutional protection. Both the Constitutional Court and the European Court of Human Rights have stressed that freedom of expression also protects ideas that may disturb, unsettle or offend, and that speech may only be criminally sanctioned when it crosses certain limits.

Applied to the new Article 510 CP, this means that not every favourable reference to the past, nor every debatable historical judgement, is a crime. In principle, the following fall outside the offence:

• Historical research and academic debate, even where they advance controversial theses, provided they are not used as a vehicle for the disparagement or humiliation of the victims.
• Artistic creation — literature, film, theatre, the visual arts — that addresses Francoism or totalitarian regimes for expressive, satirical or critical purposes.
• The expression of political opinions about the historical period, however uncomfortable, as long as they do not incorporate the element of incitement or contempt the offence requires.

The dividing line is precisely that extra element of contempt or incitement. The offence is not built on the ideological assessment of the message, but on its capacity to humiliate the victims or to incite hostility. That analysis is necessarily contextual: the specific content, the medium used, the reach of the dissemination and the author's intention all matter.

What it means today for the investigated, the accused and victims

For anyone investigated or prosecuted, the first task is to determine whether the conduct genuinely falls within the offence or is protected by freedom of expression, artistic freedom or research. The question is not whether the message is reprehensible or unpleasant, but whether it contains the element of incitement or contempt required by Article 510 CP. Precision in analysing the specific expression, its context and its purpose is decisive.

For those acting as victims or injured parties — including victims' associations or entities with standing — the reform offers a way to respond criminally to conduct that previously could fall into a grey area. But it requires a technically robust prosecution: proving not only the apology or glorification, but the effective disparagement or humiliation of the victims, as well as the public nature of the conduct.

There is also an issue that cuts across every case: the temporal application of criminal law. Conduct is only prosecutable under the new Article 510 CP if it takes place after the reform's entry into force; earlier facts must be examined under the rules then in force, with no retroactive application of unfavourable criminal law.

Defence strategies against a charge under Article 510 CP

On the basis of the reformed wording, the main lines of defence we work on are:

• Protection under freedom of expression. This is the central line. Arguing that the statement, however controversial, is a legitimate exercise of freedom of expression, artistic creation or research, and lacks the element of incitement or contempt the offence requires.
• Absence of disparagement or humiliation of the victims. Disputing that the conduct projects that extra element against the victims of the totalitarian regime, distinguishing a historical or ideological assessment from criminally relevant contempt.
• Lack of the subjective element. Proving the absence of any intent to disparage, humiliate or incite, particularly in academic, journalistic, artistic or debate contexts.
• Contextual analysis of the message. Placing the expression in its real context — medium, audience, intent, tone — to avoid decontextualised readings that turn opinion or criticism into a crime.
• Temporal application of criminal law. Verifying that the facts are subsequent to the reform's entry into force, with no retroactive application to the defendant's detriment.

How to act if this reform affects you

If you are being investigated, have already been charged, or act for the prosecution in a matter related to Article 510 CP, it is advisable to analyse the specific expression as soon as possible. In this area, strategy is decided by examining the message, its context and its purpose in detail: the boundary between protected speech and hate crime is narrow and deeply fact-dependent.

You can read more about this and other amendments in our criminal law reforms section, consult the provisions in the annotated Penal Code, or learn how we approach criminal defence in this type of matter. You will find further analysis of legislative and procedural developments on the firm's blog.