La declaración de inconstitucionalidad del delito del “negacionismo” (artículo 607.2 del código penal español)

Abstract

Including the crime of “apology for genocide” in the article 607.2 of the Spanish Criminal Code (SCC) was considered a problem by jurisprudence because it was difficult to harmonize that article with the “overall” apology that appears in article 18.1 SCC. The problem was that while the “overall” apology (article 18 SCC) requires, in order to be punished, the action to be considered as a measure tending to the commission of genocide, It seems to be impossible to get this condition in the apology for genocide because of the literal sense of the article 607.2 SCC; so that, the apology for genocide would be a punishment for simple diffusion of ideas and doctrines itself. Accordingly, the crime of apology for genocide would be a sort of crime of opinion, and that can’t be accepted because it means an unjustified limit to the right of expression. Along these lines, declaring unconstitutional a portion of the article 607.2 SCC (the part about negation of genocide) was not enough because that declaration didn’t include the justification of the genocide as unconstitutional, and it was evident that inclusion would be adequate.