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Discrimination and the Roma Community 2014
excess but rather an excess constituting an offence
thus justifying the filing of accusations.
Were it not for the full support of the representative of
the Provincial hate crime and discrimination prosecu-
tor of Barcelona, they could have applied the so-called
Botín-doctrine.
It was also disappointing to see how the Federation of
Roma Associations of Catalonia (FAGIC), decided to
distance itself from the case.
II.
Oral Proceedings and Acquittal in first
instance.
The Oral Proceeding received major media attention
between the supporters of our position and those who
considered us little more than a group of “idealistic hip-
pies”, censors of free speech who sought, through a
political lawsuit, to remove Mr . Albiol, legitimate repre-
sentative of the people of Badalona, from office.
Although this politician was at least forced to testi-
fy for several hours before a court about his actions
against this disadvantaged group and that was a vic-
tory from a democratic point of view, the Magistrate
Judge, Mr. Ignasi de Ramon Forns of Criminal Court No 18
of Barcelona,
delivered his judgment on 10 December
2013 acquitting the Mayor.
That judgment absolved him of the crime of incite-
ment to hatred, violence and discrimination (Article 510.1
of the Criminal Code) with solid arguments in line with
the interpretation of the law established by the judg-
ments in the Europea Bookstore and Kalki Bookstore
(also known as the Indo-European Studies Group) cas-
es. Applying the legality and criminal specificity princi-
ple, the judge ruled that according to Article 18 of the
Criminal Code, incitement to commit a crime must be
direct incitement to commit a crime, and Mr. Albiol had
not done that.
And this is true. Mr. Albiol’s criminal conduct was limit-
ed to spreading slanderous information about a group
with reckless disregard for the truth. In other words, he
publicly and repeatedly insulted and defamed a group
of people because of their ethnicity and nationality: the
Romanian Roma residing in Badalona.
In our view, the arguments contained in the judgment
to acquit Mr. Albiol of the crime under Article 510.2 were
not legally sound and are nearly identical to the ideo-
logical argument put forward by Mr. Albiol himself when
he insisted that the information he spread was neither
racist nor xenophobic. We believe that in this aspect
the reasoning underpinning the judgment is inconsis-
tent: it is “very unusual” for slander considered degrad-
ing to be protected by freedom of expression while
insults are not. However, in this latter case there was no
“animus injuriandi” (an added requirement for common
libel in slander cases against individuals) despite calling
them criminals and thieves among many other things.
And then the same old argument: that Mr. Albiol would
have said the same about any other person who was
not a Romanian Roma.
Ultimately what we see in the judgment is full ideolog-
ical alignment with the exculpatory version of Mr. Albiol.
And this was pointed out from the very beginning of
the Oral Proceedings
III. Regarding the right to a second hearing
from the point of view of the victim.
Regarding the judgment dismissing the
appeal and the dissenting opinion calling
for a conviction.
Once Mr. Albiol was acquitted by decision of the three
Magistrates with different interpretation criteria, the
media attention automatically subsided and the most
interesting phase of the proceeding from a legal point
of view got under way.
We filed a remedy of appeal against the judgment and
after several long months of waiting important differ-
ences developed among the three judges with regard
to our request for a trial and the presentation of evi-
dence in second instance, including further statements
from Mr. Albiol.
On the one side were the judges that did not feel it
necessary to hold a public hearing as they were suffi-
ciently enlightened or to examine evidence in second
instance; on the other side was Judge María José Magaldi
Paternoso, who did feel it necessary or to be more pre-
cise, admissible, to examine evidence on appeal.
Both sides presented reasonable and very solid argu-
ments, and this can be considered a very advanced
study of forgotten second instance law from the point
of view of the accused but also of the victim. If the
victim has always been the most overlooked party in
our criminal justice system, “tell me, how are his rights
being protected in second instance”.
When we get into the merits of the case and look
closely at Judgment No. 713 of 22 July 2014, where the
Judges, Pedro Martín García and Javier Arzua Arrugaeta,