European Court of Justice rules for Valtònyc

The European Court of Justice (ECJ) holds that the criminal code cannot be applied retroactively

When Spain’s Audiencia Nacional court issued the correct European Arrest Warrant (EAW) against exiled rap singer Valtònyc, it invoked legislation that was enacted after the Majorcan artist had allegedly committed the crime he was tried for in Spain. In other words, the automatic extradition request against the hip-hop singer —who currently resides in Belgium and was released on bail by a Belgian court— was based on Spain’s 2015 public security law, even though the actions for which Valtònyc was indicted date back to 2012. The ECJ has now ruled that the criminal code cannot be applied retroactively and, therefore, Valtònyc was right. However, the court points out that a Belgian judge will still need to determine whether the crimes he was convicted for in Spain have an equivalent offence in Belgium before a decision is made on the EAW. After Luxembourg’s judgement, it will be up to the Ghent’s Court of Appeal to decide whether to grant the extradition or not.

The European Court of Justice points out that Spain’s Audiencia Nacional court found Valtònyc guilty of several crimes committed between 2012 and 2013. Specifically, the rapper was convicted for glorifying terrorism and humiliating the victims of terror crimes, as per Article 578 of the criminal code that was applicable at the time, which established a maximum prison sentence of two years. However, the law was amended in 2015 and the maximum penalty for those crimes was raised to three years. When Valtònyc went into exile in Belgium, Spain’s Audiencia Nacional court issued an EAW for a crime of “terrorism” as established in the 2015 criminal code. This is an important detail because European law only allow fast-track extraditions in the case of crimes that carry a minimum of three years in prison.

When Luxembourg saw the case, the European Commission sided with the artist’s defence team, whereas Spain and Belgium took the opposite view. At one point the Advocate General of the EU voiced doubts about whether newer legislation could be used to prosecute an offence that predated its enactment and wondered whether referring to current law was useful for the optimal handling of an EAW or not.

The Spanish court’s ruling, which was confirmed by Madrid’s Supreme Court in February 2018, states that songs such as Espanya 0 - Goma 2, Caminant per la ciutat and Microglicerina, among others, “have an undeniable laudatory nature towards Grapo and ETA, two terrorist groups, and their members, which goes beyond a mere sympathy for their political goals […]. They effectively praise not their political objectives, but the violent means used by said terrorist organisations”. The lyrics of the songs included lines such as “I wish to send a message to the Spanish people: ETA is a great nation”, “Let’s hope ETA blows it up” and “May a nitroglycerine-loaded PP bus explode”.

Valtònyc’s defence had argued that the lyrics expressed “a subjective wish” and that “rap lyrics are extreme, provocative, allegorical and symbolic” and that at no point did they aim to “mock the victims”. Nevertheless, the appeal was dismissed.

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