Hate crimes are regulated in art. 510 of the Penal Code, which punishes those who encourage or promote discrimination, hatred or violence against groups or associations for racist reasons, sexual orientation, ethnicity… We are facing a crime of danger, so that to appreciate the crime it is enough to generate a danger that is embodied in the message with a content of hate speech.

In relation to the elements that characterize hate crime, the Supreme Court has specified the following (STS No. 646/2018 of December 14):

• First, the perpetrator must select his victims on the basis of intolerance and from among the vulnerable groups referred to in the standard.
• Secondly, the conduct must not only frighten the person to whom the message is addressed, but the entire group to which he or she belongs, creating feelings of injury to dignity and insecurity.
• The expressions made must also be in line with the basic rules of coexistence based on respect and tolerance, so that opinions about people who are publicly known for their actions and are subject to public questioning do not constitute a crime.
• The messages must be serious and serious in order to generate a feeling of hatred or create a feeling detrimental to dignity.
• The perpetrator must act with the intention of aggression, thus excluding manifestations made from punctual revenge.

In the first place, the following conducts are punishable with a prison sentence of 1 to 4 years and a fine of 6 to 12 months:

1. Encourage, promote or indicate directly or indirectly and publicly hatred, hostility, discrimination or violence against a group or person for racist, anti-Semitic, anti-Roma, ideological, religious, family status, ethnicity, nation, national origin, sex, sexual orientation or identity, gender, aporophobia, disease or disability.
2. Produce, elaborate, possess with the purpose of distributing, disseminating or selling materials that, due to their content, are suitable to promote or incite directly or indirectly hatred, hostility, discrimination or violence against a specific group or person for racist, anti-Semitic, anti-Roma, ideological, religious, family status, ethnicity, nation, national origin, sex, sexual orientation or identity, gender, aporophobia, disease or disability reasons.
3. Denying, seriously trivializing or publicly glorifying crimes of genocide, crimes against humanity or crimes against persons and property protected in case of armed conflict, or glorifying their perpetrators, when they have been committed against a group or a specific person for racist, anti-Semitic, anti-Gypsy, ideological, religious, family, ethnic, national, national origin, sex, sexual orientation or identity, gender, aporophobia, disease or disability reasons, thus favoring a climate of violence, hostility, hatred or discrimination.

Secondly, the following actions are punishable with imprisonment from 6 months to 2 years and a fine from 6 to 12 months:

1. To harm the dignity of persons through actions that involve humiliation, contempt or discrediting of groups or persons for racist, anti-Semitic, anti-Gypsy, ideological, religious, family status, ethnic, national, national origin, sex, sexual orientation or identity, gender, aporophobia, illness or disability, or producing, elaborating, possessing with the purpose of distributing, facilitating access to third parties, disseminating or selling material that, due to its content, is suitable to harm the dignity of persons because it represents a serious humiliation, contempt or discredit of the aforementioned groups or persons.
2. Exalting or justifying by any means of public expression or dissemination crimes committed against a group or person for racist, anti-Semitic, anti-Gypsy, ideological, religious, family, ethnic, national, national origin, sex, sexual orientation or identity, gender, aporophobia, illness or disability reasons, or those who have participated in their execution.

The acts described in the two preceding paragraphs shall be punishable by 1 to 4 years’ imprisonment and a fine of 6 to 12 months when such acts promote or encourage a climate of violence, hostility, hatred or discrimination against the aforementioned groups.

Aggravated modalities

The facts described above are punishable with a higher penalty when any of the following circumstances concur:

510. The penalties are imposed in their upper half if the acts have been carried out through a social media, through the Internet or through the use of information technologies, so that they are accessible to many people (art. 510.3 of the Penal Code).
511. If the facts are suitable for disturbing the public peace or creating a serious feeling of insecurity or fear among the members of the group, the penalty is also imposed in its upper half, and may reach the higher penalty in degree (art. 510.4 of the Penal Code).

Criminal liability of legal persons

Article 510 bis of the Criminal Code provides for the criminal liability of legal entities for hate crimes, in which case they will be punished with a fine of 2 to 5 years, and the judge may also impose penalties of dissolution, suspension of activities, closure of premises, prohibition to carry out certain activities in the future, disqualification from obtaining public subsidies and aid, and judicial intervention.