91 / 131
89
Putting discrimination in context
follow the same reasoning as the “a quo” Judge and rule
that under Article 510(2) of the Criminal Code, the infor-
mation disseminated should be considered a crime of
libel. And they make a classical interpretation of crimes
of libel between individuals, with the added requirement
which we call “animus injuriandi”. They therefore sup-
port the first instance judgment, considering that Mr
Albiol did not act with intent to slander but rather with
the intention of informing or highlighting a problem of
co-existence and even to capture votes for his cam-
paign, establishing in Spain what we call “animus electo-
randi”, in view of which anything goes and neutralising
“injuriandi”.
However Judge María José Paternoso Magaldi, whom
we believe (and not because of her dissenting opin-
ion) to be one of the Judges with the most thorough
understanding of these matters (remember her very
complete judgment where she was Rapporteur in the
judgment that acquitted Pedro Varela Gueiss of a crime
under Article 510.1 of the Criminal Code), delivered a
novel dissenting opinion in line with European law and
case law of the Strasbourg Court.
In her dissenting opinion she makes it quite clear (and
this is novel to Spain) that Article 510(2) of the Criminal
Code does not have to be analysed as a crime of slan-
der between individuals. She shows us that that regula-
tion is something different and consists of disseminat-
ing slanderous information (of which the active subject
may or may not be the author) for which “animus in-
juriandi” is not a requirement at all, the only requirement
being that said information be objectively slanderous
towards the group under attack, that the perpetrator
was aware that the information was false (direct intent)
and that he acted with reckless disregard for the truth
(conditional intent).
This is exactly what Mr. Albiol did with the Romanian
Roma in Badalona in the opinion of the dissenting Judge
who was in favour of a conviction and partially upheld
our appeal.
Dissenting opinions like this one remind us of the dis-
senting opinion of the Supreme Court Judge Andrés
Martínez Arrieta in the Kalki Bookstore case and proves
once again that in complex and unprecedented cases
where such fundamental rights come into play such as
freedom of expression and opinion on the one hand and
the right to honour and dignity on the other, the ma-
jority judgments fail to interpret the law in accordance
with European law and international standards; while
the dissenting opinions, coincidentally delivered by the
best specialists in this area of law, look past the border
of Spain and go in the opposite direction.
We are left, however, not with hope but with the con-
viction, one that we have observed time and again: “in
law, the dissenting opinions of today are the Judgments
of tomorrow”.