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Putting discrimination in context
Apparently for Mr. Albiol, the end (power and the May-
or’s Office as he himself insinuated) justified the means
(slander and the attribution of that slander to a de-
fenceless group that he criminalised). If the electorate,
suffering from an economic crisis that it did not cause,
heard what it wanted to hear, i.e. anti-Roma promises
(this time only if they were Romanian), and despite the
dishonesty and irresponsibility of his message, Mr. Al-
biol would undoubtedly manage to get the necessary
votes (“I’m only two town councillors away from win-
ning the Mayorship” he said and put in writing) to meet
his objective as unfortunately was the case; his cam-
paign basically revolved around these attacks.
It was also reasonably clear from my vantage point that
the criminal case against Mr. Albiol was an experiment,
i.e. no case law whatsoever to turn to for support, and
that the law on which the charges were based had been
utterly and completely ignored up to that point (and
since then as well). We were aware of the difficulties
we were up against in this case where what was on
the table was nothing less than the fundamental right
of freedom of expression, opinion and information of
a professional politician (and member of a democratic
party that has usurped all of the power in our country)
and who was acting in an electoral campaign. On the
other end of the table, the right to honour and digni-
ty of an especially vulnerable and socially stigmatised
group, the Romanian Roma. Quite likely the most stig-
matised group.
It was also quite clear that the European Court of Human
Rights (ECHR) had twice upheld the convictions handed
down in Europe against other active politicians in their
countries in the Féret v. Belgium (16/07/2009) and Jean
Marie Le Pen v. France (20/04/2010) judgments where
the judge entrusted with interpreting human rights law
at the Council of Europe advocated the restriction of
the freedom of expression of these two active politi-
cians and also established boundaries to the freedom of
expression in the political arena.
And we here in Spain were so convinced that we also
had our Féret and our Le Pen and that the Spanish
courts would judge the facts in accordance with in-
ternational standards, especially considering the lack of
national case law.
We quickly came to the realisation of something that
we already knew: that nobody in this society (or any
other) cares about Romanian Roma, except when it
comes to putting them in prison or, better yet, sub-
jecting them to immediate deportation, individually or
collectively, as they are the true dregs of society.
The court battle could not have been more one-sided,
even more so in criminal court. But the truth is the truth
and despite the David and Goliath proportions of the
proceeding, we simply had to react to this attack, this
utterly irresponsible use of politics. And we especially
could not allow a person to reach the Mayor’s Office
thanks, to a large degree, to this obvious crime.
We believed that allowing this to happen was tanta-
mount to doing nothing at all. Looking the other way
was to give him the green light.
How frustrating it was to see how the leaders of the
major political parties, who until then had used these in-
cidents against Mr. Albiol in their political battles for the
different mayorships and claimed to staunchly oppose
xenophobic hate speech, did not think twice about us-
ing it for their own electoral purposes.
We sincerely believed that the good and legitimate
end of being put into a position of power through a
democratic election could never be justified by the
means used to attain it: criminalising an entire group of
people. “Everything goes” to get oneself into power is
unacceptable and citizens deserve better than such ir-
responsible use of the freedom of expression which,
although a constitutionally protected fundamental right
in all democratic societies, has and must have its limits
and these, at times (and only at times), are crystal clear.
The
actio popularis
suit was filed jointly by two asso-
ciations: SOS RACISM and the FEDERATION OF ROMA
ASSOCIATIONS OF CATALONIA (FAGIC). The judge
in charge of investigating and hearing the case made
things as difficult as possible for the plaintiffs and im-
mediately declared the case inadmissible. That decision
was appealed, together with the public prosecutor, to
the Provincial Court which ordered the initiation of the
judicial investigation. So, the case got under way with a
judge who had no interest in hearing it.
Once a statement was taken from Mr. Albiol at the or-
der of the court, the facts put forward by the parties
and admitted by the accused proved that what was
at stake was a legal issue and not the determination of
facts or the perpetrator.
To our astonishment, that same judge ordered full
dismissal of the case alleging that no crime had been
committed. We filed a second appeal, again with sup-
port of the representative of the Public Prosecution
Service (who had to deal with differences in interpreta-
tion and technical-legal criteria but who, despite these
difficulties, made convincing arguments that strongly
supported the appeal). Chamber 8 of the Barcelona Pro-
vincial Court overturned the dismissal and ordered the
investigative judge to initiate an abbreviated proceed-
ing marking the end of the investigative stage. Accord-
ing to the Provincial Court, this was not a case of verbal