Use of Totalitarian Symbols: Is It Possible to Transfer the German Model to Spain? A Critic of the Application of the Article 510 of the Penal Code

Abstract

The proliferation of the use of fascist symbols in public gatherings has led to the proposal of their prohibition and even their penalization. In this direction points the Supreme Court in sentence 675/2020, of December 11, which applies article 510.1 CP for distributing Nazi emblems. It is convenient to analyze the adequacy of this solution to the doctrine of the Constitutional Court and the ECHR. Likewise, it is of interest to pay attention to German law, which is proposed as a model to follow to classify the use of such signs in our country, in particular § 86 a StGB and the jurisprudence of the Federal Constitutional Court that endorses it. On the other hand, these proposals have to be evaluated within the framework of the general reform of crimes that affect freedom of expression proposed by the Government, to maintain only those behaviours that endanger public order or induce violence.