The slander and calumny are two sorts of crimes special, because they have certain particularities which affect to the way in which they can be putted into the knowledge of a judicial organ, besides there are some requisites which have to be fulfilled previously to such putting into knowledge.
Along the following lines we will explain first what is the scope of each of these crimes, for later explaining the own procedure, which in reality is not an autonomous special procedure, it is more a compound of requisites which have to be added to the procedure according to which have to be tried these crimes which is the Abbreviated Procedure.
– The crimes of slander and calumny:
The crimes of slander and calumny are typified in the articles 208 and 205, respectively, of the Spanish Criminal Code (in Spanish Código Penal, henceforth CP), with the typifying of both crimes is protected the same legal good, the honor of the person which is affected by the content of the slandering or calumnying statements. Right to honor which has been protected as a fundamental right in the article 18.1 of the Spanish Constitution (in Spanish Constitución Española, henceforth CE), and though, a legal good of undetermined content, it can be defined as the way in which a subject is perceived by the collective which surrounded him. Trying to give more consistency to the above definition we can utilize the following extract of a sentence of the Spanish Constitutional Court (in Spanish Tribunal Constitucional, henceforth TC) 176/95 of 11 December: “The common denominator of all the attacks and encroachments in this right is the unworthiness in the alien consideration (art. 7.7 L.O 1/1982) as consequence of uttering statements either in discredit or contempt of someone or which may be publicly regarded as offensive. All this is placing us is the territory of the others, which are the people, whose collective opinion marks on wherever place or anytime the level of tolerance or rejection. The content of the right to the honor is fluid, changeable and in definitive, as we have said in other occasions, (STC 185/1989)”.
Although, both crimes affect to the same legal good, they affect to it in a different way. According to the article 208 CP: “Slander is the deed or statement which harms the dignity of other person, damaging his fame or attempting against his own esteem.” From the concept of slander we have to exclude, all those deeds and statements which cannot be regarded as grave in accordance with the social uses, for the light slander and the degrading treatment between private individuals were decriminalized by the Organic Law 1/2015 of 30 March, which reformed the CP, such conducts are only typified as crimes when are committed between the persons included in the art. 173.2 CP. This does not mean that in the case of light slanders, the honor of the person affected by them cannot be repaired, who deems that his right to honor has been harmed on account of this kind of statements or deeds, can find through civil proceedings the means to seek redress, in accordance with the Organic Law 1/1982 of 5 May, on protection of the honor, the personal and familiar intimacy and the own image. The decriminalization of the slight slanders, is a manifestation of the principle of minimum intervention of the criminal law, according to which, only the the gravest conducts must be punished making use of the exclusive punitive power of the State. Once we have clear where is typified the slander and what is its definition according to the CP, we will try to deepen into its concept by means of an example of a resolution coming from a tribunal, in this case the AAP LO 323/2020: “There is a repeated doctrine, that for the existence of the crime of slander, whose protected legal good is the honor inherent to the dignity of the person, is required two concurring fundamental elements: one objective, formed by deeds or statements which have the enough offensive power to harm the dignity of the person, damaging his fame or attempting against his own esteem; the concept of honor must be built from assessment points of view, and consequently, with relation with the dignity of the person, being made up de honor from this perspective, by the hope of respect which corresponds to each person (physical or legal) as consequence of the recognition of his dignity.
The subjective element, is made up by what is called the “ánimus injuriandi”, which implies the intention of making an attack to the alien dignity, the purpose of offending the personal dignity, of damaging the fame of the person or attempting against his own esteem. The determination of whether such intention or animus concurs, in general cannot be made in a direct way, since it affects to the intimacy of a person, must be inferred indirectly, by means of external aspects of his conduct duly accredited, and therefore, taking into account the facts which form the kernel of the typified crime and serve to investigate the willfulness of the slander and the gravity of the slander. The jurisprudence has admitted the “iruris tantum” presumption of the of such intention of slandering, when the statement is by its own objectively slandering, ( SSTS 28 de septiembre de 1986 y 15 de julio de 2008), thereby, there are some expressions that are always slandering having implicit in them the intention of slandering, and when are employed corresponds to who has used them, to show that he had another intention and not that of slandering ( SSTS 28 de febrero y 14 de abril de 2009)…Therefore, the statements or deeds allegedly slandering might not be finally punished, when is proved that the intention of the person who did them was different, as for example, to defend himself, to criticize, to give an account, or to joke.”
Let´s try now to summarize what we have just read. For the existence of the crime of slander there is needed two elements, one objective, the deeds or statements must be slandering, and another subjective, there must exist an intention of attempting against the honor of the person to which these deeds or statements are aimed. Therefore, the Spanish jurisprudence has admitted that, when there does not exist this intention of damaging the honor, and the statements or deeds have been done with another purpose, as defending himself or criticizing, there will lack one of the elements which form the crime and the conduct will not be punishable. To assess whether this intention exists, has to be taken into account all the circumstances which surround the deeds or statements which allegedly were slandering. Nevertheless, there exist expressions which implicitly has the purpose of slandering the person to whom are aimed, in these cases there will exist a “iuris tantum” presumption against the person who has done them, which can only be destroyed showing that was another his intention and not that of slandering.
Now is the turn of the calumny. The calumny is typified in the article 205 of the CP: “A calumny is the attribution of a crime when it is done with the knowledge of its falseness or rash contempt for the truth”. The calumny, therefore, consists in the attribution of a crime or crimes to a person or persons, it does not only consist in attempting against his honor humiliating him verbally, there exists a concrete goal, the destruction of his reputation attributing to him the commission of a crime, which besides, is punishable by the law, in fact, it must be a crime which can be prosecuted ex officio, as we will see afterwards. As in the case of the crime of slander, the Spanish tribunals have also delimited the elements which form the crime of calumny, this is an extract of the AAP M 1573/2018: “The requisites of this crime are:
a) The attribution to a person of the commission of a crime.
b) Such attribution must be false, with manifest contempt of all confrontation with the reality, knowing its inaccuracy; the falseness of the attribution has to be determined attending fundamentally to subjective parameters.
c) Generic, vague or analogue attributions are not enough, they must be concerning a concrete and determined fact, and criminally classifiable, it has to a affect to a concrete and determined person too, and the false attribution has to contain all the elements to the legal classification of the crime attributed, without being necessary a legal classification by part of the slanderer.
d) The crime must be a crime which can be prosecuted ex officio, in other words, it must be a public crime.
e) A subjective element has to concur too, it consists in the intention of slandering, intention of damaging the reputation of the person to whom the statement is aimed, with the goal of his public discredit or losing of public esteem. The attribution of the crime must be false, with manifest contempt with all confrontation with the reality, knowing its inaccuracy. The slanderer does not need to make use of the exceptio veritatis in order to claim his innocence, though he lacks of any proofs to prove the existence of the crime, he has enough with affirming that he does not know the falseness of the attribution and that he does not acted with contempt for the truth, to be automatically protected by his own presumption of innocence and to pass the charge of proving the concurrence of such criminal subjective elements to the prosecution.”
Doing the same that we did with the slander, we will try to sum up what we have just saw. The calumny is an attribution of a crime to a determined person, a crime which must be a crime which can be prosecuted ex officio. Besides, there is not enough with attributing an fact which is punishable, it must be a concrete fact. And such attribution must be done knowing its falseness or with manifest contempt for the truth, being moved the slanderer by a purpose, to damage the public esteem of the person to whom the crime has been attributed. Each of the elements are important, but it is specially relevant, above all at the hour of preparing an effective strategic defense by part of the allegedly slanderer, the requisite that the attribution of the crime must be done with the knowledge of its falseness or with rash contempt for the truth, and according to the own resolution just mentioned: “ will be either the attribution which corresponds with the reality, or the false, in an objective sense, which has been done as true after the due verification.”
We can see that both crimes have a very different ambit of protection of the right to honor, but there exist a point where both can converge and where their boundaries are not really clear. The third paragraph of the article 208 CP says in relation with the crime of slander: “The slanders which consist in the attribution of facts are not regarded as grave, except when they have been carried on with the knowledge of their falseness or with rash contempt for the truth.” In other words, the slander may consist also in the attribution of a crime, but there will be a slander when the attributions of such crime lacks any of the requisites we have seen above for the calumny, for instance, when the crimes attributed is not a crime which can be prosecuted ex officio or when consist in the attribution of a crime not determined. In both cases, in the slander and in calumny, the attribution of the fact must be done with the knowledge of its falseness or with a rash contempt for the truth, therefore in the slander we will have to attend also to the concept of truthful which we have seen above.
We have said that, the crimes of slander and calumny suppose an affectation of the same fundamental right, the right to the honor of the person who is affected by them. But, as the rest of fundamental rights recognized in the CE, the right to the honor is not an absolute right which must be protected under any circumstance, there will exist occasions in which such right might enter into conflict with others rights recognized in the CE, in this case in relation with the right to honor are relevant the right to the freedom of expression and the right to the freedom of information, which are established in the article 20.1.a) and the article 20.1.d) of the CE, respectively. Following the own CE, the right to the liberty of expression is: “The right to freely express and transmit the thoughts, ideas and opinions by means of the word, the writing or any other means of reproduction”. The right to the freedom of information is: “The right to freely communicate or recibe truthful information by any means of diffusion.” Certainly, we are again before the problem of determining the boundaries of both rights, since in the majority of cases both right will be exercised at the same time, for it is complicated to wholly transmit an information without being tainted by the opinion of whom is transmitting it. Notwithstanding, the exercise of the right to the freedom of information has to be carried on respecting the truthfulness of the information transmitted, in the same way in which is demanded to those who attribute a crime to determined person if they do not want to be punished for slander of calumny.
It is said that, at the hour of assessing whether an statement must be punished as slander of calumny, a judge or tribunal has to ponder which of these rights should prevail, if the right to the honor or the right to the freedom of expression or information. And though the solution will not be always easy, when the requisites which we have seen above concur, they have to give priority to the right to honor. Due to this conflict of interest there are those who have supported the whole decriminalization of both conducts, for the right to freedom of expression and information are two basic pillars over which should be built a democratic state.
– The procedure for slander and calumny against private individuals:
This procedure is regulated from the article 804 to the article 815 of the Spanish Criminal Procedure Act (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim). If you know a little of criminal procedural law and you have a look at the articles regulating this procedure, the first thing you will notice is that this is a procedure which should have been reformed a long time ago, for example it says that the trying of the facts is the competence of the Examining Magistrate. Nothing further from reality. The Consultation 2/1994, of 28 November, on the right procedure for the trying of the crimes of slander and calumny, though also a little old, it can serve to place us. In it is said that, the right procedure for the trying of either the slander or the calumny is the Abbreviated Procedure, though with the specialities which specifically are established in the Title IV of the Book IV of the LECrim where is regulated this “special procedure”. Therefore, who has the competence for trying the facts is the Criminal Judge (art. 14.3 LECrim).
Those particularities which we have to add to the Abbreviated Procedure, recall that its application is determined by what is established in the article 757 LECrim, are really relevant, since without them the procedure cannot commence. The lawsuit for slander or calumny must be accompanied of a certification of having been practiced by the prosecution the act of conciliation with the defendant, or at least, of having tried it without effect (art. 804 LECrim), and if the lawsuit was for slander or calumny done at a trial, it will be necessary to obtain, besides, the authorization of the Judge or Tribunal before which were done (art. 805 LECrim).
Here we have to stress that, the only way of putting into the knowledge some facts which can be regarded as a crime of slander or calumny, is be means of a lawsuit, a report is not possible, even if it comes from the person affected by the slandering expressions. The slander and calumny are the only private crimes that exist, which are those needed of a lawsuit to start the criminal procedure, this distinguish them from the public crimes which can be prosecuted ex officio and which only need the report of any citizen to start the procedure, and the semipublic crimes which can be reported only by the person offended by the crime, but once the criminal procedure is initiated, the Public Prosecution can maintain the accusation without acquiring the offended by the crime the status of a party in the criminal procedure. In the case of the crimes of slander and calumny, their character of private crimes is also established in the article 215.1 of the CP, which mentions an exception, the slander and calumny can be prosecuted ex officio when they affect to a public servant concerning facts during the exercise of their post, in those cases the slander and calumny are regarded as public crimes. Evidently, that the procedure for the trying of the crimes of slander and calumny can only be initiated through a lawsuit, renders more expensive the access to the justice to those who have not economic means, and with that, is restrained their fundamental right to effective legal protection (art. 24.2 CE), for the lawsuit must always be brought by means of attorney with sufficient power and signed by a lawyer (art. 277 LECrim).
Let us continue with these two special requisites which we have mentioned above and which are established in the articles 804 and 805. They are two requisites of proceedability, it means that to the two requisites which are mentioned in the article 313 LECrim for admitting a lawsuit, that the facts related must be classified as a crime and that the lawsuit must be brought before the Examining Magistrate with competence to investigate the crime, we have to add the certification (art. 804 LECrim) and the authorization (art. 805 LECrim) in case of being necessary. Then, what happens if the the lawsuit is brought but it is not accompanied by the certification and authorization when is necessary? We can find the solution to this question in the article 278 of the LECrim, in it is expressed again the necessity of accompanying the lawsuit with the certification when the crimes are private crimes, but this article adds that, the urgent preliminary proceedings can be practiced without the necessity of such certification, these will be aimed to check the facts reported or to arrest the criminal. Therefore, the admission of the lawsuit will be suspended, although the urgen preliminary proceeding will be practiced, and if the defect (the certification) is not finally corrected the lawsuit will not be admitted, on the contrary, if the defect is rectified the lawsuit should be admitted and the procedure will continue according to the rules of the Abbreviated Procedure. The problem which might arise is that, while the prosecution obtains the certification or the authorization, the facts can prescribe. According to the article 131 CP, the crimes of slander and calumny prescribe at the year of their commission, will be suspended in those cases the prescription of the crime until the certification (art. 804 LECrim) or authorization (art. 805 LECrim) is obtained? The answer to this question has been replied by the Spanish Supreme Court (in Spanish Tribunal Supremo, henceforth TS) in its sentence 3533/2019: “Neither the act of conciliation nor the proceedings to obtain the judicial authorization are endowed with the efficacy of interrupting the prescription”.
Lastly, we can not forget that the articles 209, for the slander, and 206, for the calumny, envisage a greater punishment in the cases that the slander or calumny has been committed with publicity, in other words, using some means which facilitate its diffusion, as the written press, the radio, the television, or why not, a blog owned by any private person. In those cases, although the crime committed may be classified as slander or calumny, the proper criminal procedure for trying those facts will be the procedure for the crimes committed by means of the press, the engraving or another mechanic means of publication, established in the next title of the Book IV of the LECrim. Nevertheless, despite this change of procedure the prosecution will be exempted neither of obtaining the certification (art. 804 LECrim) or the authorization (art. 805 LECrim) in case of being necessary, nor of reporting the crimes by means of a lawsuit due to their character of private crimes.
Víctor López Camacho.
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