Libertà di espressione e calunnie e offese contro il Re di Spagna

The freedom of expression proclaimed in article 20 of the Spanish Constitution is the foundation on which any democratic system is built. Its institutional aspect guarantees free public communication and pluralism. Regarding its subjective dimension, the fundamental right to express oneself freely in any of the manifestations included in article 20.1 of the Spanish Constitution (freedom of opinion; artistic and scientific freedom; academic and intellectual freedom; freedom of information) is recognized. These important qualities place freedom of expression in a “preferential position” in the system of rights as long as certain constitutional requirements are met. However, it is not an absolute right. To the extent that it may affect the legitimate enjoyment of other rights and other constitutional assets, its exercise may be limited as long as its essential content is respected and in accordance with the principle of proportionality. Accordingly, the crime of slander and insults against the King of Spain appears in the Spanish legal system as a criminal limit on freedom of expression. This investigation will focus on analyzing the typical elements of the aforementioned crime, to delve into the different problems that arise in relation to freedom of opinion and information. In short, it is about studying, from a constitutional (and necessarily also criminal) approach, whether the legislator has established a proportional sanction or if, on the contrary, it takes an unbearable limit for freedom of expression because it is unnecessary in a society democratic. Likewise, we will reflect on the position that the Spanish Constitutional Court and the European Court of Human Rights, as courts for the protection of fundamental rights, have adopted in relation to freedom of expression and the criminal protection of constitutional symbols.