The Provincial Court of Madrid does not see a crime against freedom of conscience or profanation in the drawing of a dove that the artist Enrique Tenreiro made on the tombstone Francisco Franco in the Basilica of the Valley of the Fallen, on October 31, 2018, before his remains were transferred by the Government of Pedro Sánchez. Next to the drawing he wrote “for freedom”, while exposing aloud, after making the painting, that he carried out such an act “for the reconciliation of the Spanish & rdquor ;. The sentence has the dissenting vote of one of the magistrates, who considers that Tenreiro did have the intention of offending.
The magistrates consider that he should be acquitted of the crime against freedom of conscience, for which the Public Ministry requested one year in prison and the Association for the Defense of the Valley of the Fallen together with the damage to the grave two years in prison, understanding that the artist drew the dove of peace when mass had not yet begun, “of which – the resolution points out – he said he had no knowledge & rdquor ;.
This fact is fundamental for the judges, according to the sentence released this Tuesday, because the law requires that in order to punish someone for a crime against religious sentiments, they must conduct themselves with “violence, threat, tumult or de facto ways, preventing, interrupting or disturbing the acts, functions or ceremonies & rdquor ;, which in the case at hand has not been proven after any of the statements made by the witnesses in the oral hearing of the trial that was held for these events on December 10.
It was not against religious beliefs
“It is evident – the resolution clarifies – that the actions of the accused cannot be equated with these conducts: first, mass had not started, second, he acted alone and quickly and the slogans launched in no way went against religious beliefs of those who could be present there & rdquor ;.
Nor are the judges aware that the author of the graffiti intended to harm the freedom of conscience and religious feelings. Such lack of intention is revealed at the very moment of making the graffiti, as can be seen in the video recorded at that moment, in which it refers to the freedom and reconciliation of the Spanish people, as they underline in their resolution.
It wasn’t just any church.
Added to this is the fact that he did not enter any church or place of worship, they highlight the magistrates Adela Viñuela, Isabel Huesa and Francisco Manuel Oliver, but to the basilica where Franco’s tomb was located and “it is clear that it went against his presence in the place and not against the religious feelings of those who attended there & rdquor ;.
In relation to the second of the crimes, desecration and damage to the grave, of which he was only accused by the Association for the Defense of the Valley of the Fallen, the Chamber recalls that this crime is committed by anyone who “disrespecting the memory of the dead, violates tombs or tombs, desecrate a corpse or its ashes or, with the intention of outrage, destroys, alters or damages funerary urns, pantheons , tombstones or niches & rdquor ;.
The magistrates conclude that in view of the circumstances that concur in this matter, “it is not appreciated that there was a desecration or violation of the tomb of Franco with a spirit of disrespect due to the dead, and for this it must be based on the fact that it is a figure with a career as head of state and the purpose of the accused was not to vilify his person as such , but to express an idea about its presence in the place, without concurring a spirit of outrage & rdquor;, with “damage that is reduced to aesthetic affectation and that can recover with a mere cleaning & rdquor ;.
The sentence, which has a particular vote in the sense of convicting the accused for both crimes, can be appealed before the Civil and Criminal Chamber of the Madrid TSJ. According to the dissenting, Justice Oliver, yes there was intention to offend “both to the memory of the late Francisco Franco and to the religious sentiments of the people present and of all those who were going to celebrate the mass.”