Democratic Memory and Hate Crime: What Actually Changed

Few reforms have generated as much confusion as the one attributed to Organic Law 6/2022, of 12 July. It is commonly stated that it brought the glorification of Francoism, or the exaltation of totalitarian regimes, into Article 510 of the Criminal Code (CP). It did not. Neither Article 510 CP nor any other provision of the Spanish Criminal Code contains today a single reference to Francoism, to dictatorships or to totalitarian regimes. As a firm dedicated exclusively to criminal law, we explain what was announced, what Organic Law 6/2022 actually did, and what all of this means for anyone investigated, prosecuted or victimised. You can review the full picture of legislative changes on our criminal law reforms page.

What Organic Law 6/2022 actually did

Start by identifying the statute correctly. Organic Law 6/2022, of 12 July (BOE-A-2022-11588), is the organic law complementary to Law 15/2022, of 12 July, on equal treatment and non-discrimination. It is not a historical-memory statute: it accompanies the equal-treatment act in order to make, in the Criminal Code, the adjustments that only an organic law can introduce (Article 81 of the Constitution).

Its criminal-law content is short and tightly bounded. It amended two provisions:

• Article 22.4 CP (the general discrimination aggravating factor): it added a single ground, anti-Roma motives. The rest of the catalogue — age, sexual or gender orientation or identity, gender-based reasons, aporophobia, social exclusion — was already in the provision from the previous reform.
• Article 510 CP (hate offences): it added anti-Roma motives and aporophobia to the five lists of discriminatory grounds that run through the provision (paragraphs 1.a, 1.b, 1.c, 2.a and 2.b), together with a drafting tweak in paragraph 1.c.

And that is all. Organic Law 6/2022 did not change the penalties in Article 510 CP, created no new forms of conduct and introduced no scenario connected with democratic memory.

Francoism is not in the Criminal Code

The confusion has an identifiable origin: while the Democratic Memory Act was being processed, the criminalisation of the glorification of Francoism was announced. That plan never reached the text of the Criminal Code: it was left to a later criminal-law reform that was never passed. As a result, anyone searching the Criminal Code today for the words "Francoism", "dictatorship" or "totalitarian regime" will find none of them.

What does exist, and existed before Organic Law 6/2022, is Article 510.1.c) CP. It punishes those who publicly deny, grossly trivialise or glorify the crimes of genocide, crimes against humanity or crimes against persons and property protected in armed conflict, or glorify their perpetrators, where those crimes were committed against a group, or against a person because of their membership of it, on the discriminatory grounds the provision lists, and provided that this promotes or fosters a climate of violence, hostility, hatred or discrimination. That wording comes from the 2015 reform, not from Organic Law 6/2022.

The distinction is legally decisive. Article 510.1.c) does not punish the exaltation of a political regime: it punishes the denial, gross trivialisation or glorification of specific international crimes, subject to a double filter — the discriminatory motive and the creation of a climate of hostility — that the prosecution must prove. Conflating the two in a filing leads, almost inevitably, to a badly built charge.

What the added grounds mean

The two grounds introduced by Organic Law 6/2022 are not ornamental:

• Anti-Roma motives. The Criminal Code already covered discrimination on grounds of ethnicity, but the express mention removes the interpretive debate over whether specific hostility towards Roma people fitted the general clauses. Since the reform it appears autonomously both in the Article 22.4 aggravating factor and in Article 510 CP.
• Aporophobia. This is rejection, aversion or contempt towards people who are poor or socially excluded. Its inclusion in Article 510 CP makes it possible to prosecute as hate crimes the campaigns or assaults directed at homeless people or people living in poverty, a scenario that previously could only be brought in by stretching the existing clauses.

One point is often overlooked: the catalogues of Article 22.4 and Article 510 CP are not identical. Article 22.4 includes age, sexual or gender identity and social exclusion; Article 510 CP, by contrast, mentions neither age nor social exclusion, and refers to "sexual orientation or identity" without the reference to gender at that point. Mechanically transposing one list onto the other is a frequent error in prosecution filings.

The penalties of Article 510 CP

Organic Law 6/2022 left the sentencing framework untouched. It remains as follows:

• Article 510.1 CP (public incitement to hatred, hostility, discrimination or violence; production or distribution of material apt to promote it; and the denial or glorification form in paragraph c): one to four years' imprisonment and a fine of six to twelve months.
• Article 510.2 CP (harming dignity through humiliation, disparagement or discredit; glorifying or justifying offences committed against those groups): six months to two years' imprisonment and a fine of six to twelve months. The form in paragraph b) rises to one to four years and a fine of six to twelve months where a climate of violence, hostility, hatred or discrimination is promoted or fostered.
• Article 510.3 CP: the penalty is imposed in its upper half where the acts are disseminated through a mass medium, over the internet or by information technologies accessible to a large number of people.
• Article 510.4 CP: the penalty is imposed in its upper half, and may be raised to the next higher degree, where the acts are apt to disturb public peace or create a serious feeling of insecurity or fear among members of the group.
• Article 510.5 CP: in every case, special disqualification from educational professions or occupations, in teaching, sport and leisure settings, for a period between three and ten years longer than the custodial sentence imposed.
• Article 510.6 CP: destruction or disabling of the material and, where the offence is committed by technological means, removal of the content and possible blocking of the service.

The limits with freedom of expression, art and history

The most delicate point in this area 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 precise limits.

Applied to 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 incitement against, or contempt for, a protected group.
• Artistic creation — literature, film, theatre, the visual arts — that addresses historical periods for expressive, satirical or critical purposes.
• The expression of political opinions, however uncomfortable, as long as they do not incorporate the element of incitement or contempt the offence requires.

The dividing line is that extra element of incitement or contempt, combined with one of the discriminatory motives the provision lists. The offence is not built on the ideological assessment of the message, but on its capacity to incite hostility or to harm the dignity of the group. 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 twofold: to check that the provision relied on actually says what the prosecution claims, and to determine whether the conduct carries the element of incitement or contempt and the discriminatory motive that Article 510 CP requires. A charge built on a non-existent form of the offence — the glorification of Francoism as a standalone crime — cannot succeed.

For those acting as victims or injured parties, the express inclusion of anti-Roma motives and aporophobia makes it easier to channel through the criminal courts conduct that previously required stretching the wording. But it demands a technically robust prosecution: proving the motive, the prohibited conduct and, in the Article 510.1.c) form, the creation of a climate of hostility.

There is also an issue that cuts across every case: the temporal application of criminal law. The grounds added by Organic Law 6/2022 can only support the aggravation or the offence for acts committed after it entered into force, in July 2022. Earlier facts are examined under the rules then in force, with no retroactive application of unfavourable criminal law (Article 2.1 CP).

Defence strategies against a charge under Article 510 CP

• Checking the provision relied on. Testing the classification against the wording in force: if the charge rests on a form the Criminal Code does not contain, it fails for want of an offence.
• Protection under freedom of expression. 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 a discriminatory motive. Article 510 CP is built on a closed list of grounds; if the conflict had another cause, the subjective element falls away.
• No climate of hostility. In the Article 510.1.c) form and in the aggravated form of Article 510.2.b), the prosecution must prove that the conduct promoted or fostered that climate; offence alone is not enough.
• Contextual analysis of the message. Placing the expression in its real context — medium, audience, intent, tone — to avoid decontextualised readings.
• Temporal application of criminal law. Verifying that the facts postdate the entry into force of the ground or the wording applied.

How to act if this 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 both the specific expression and the provision invoked as soon as possible. In this area, strategy is decided by examining the message, its context, its purpose and, very particularly, the accuracy of the legal citation.

You can read more in our criminal law reforms section, consult the provisions in the annotated Penal Code, read our analysis of which law changed what in the criminal-law protection of LGBTI people, or learn how we approach criminal defence in this type of matter. You will find further analysis on the firm's blog.