Spanish Court Dismissed Criminal Complaint against Members of Cadiz City Council & APDHA

In 2017, the City of Cadiz cancelled an Israeli embassy-sponsored film festival, on the basis of a motion which declared the city free from Israeli Apartheid. In response, the association “Action and Communication on the Middle East” (ACOM), filed a criminal complaint for hate crime and arbitrary exercise of power against both the members of the City Council and the Andalusian Association for Human Rights (APDHA). Both the Cadiz Court of First Instance and the Court of Appeal rejected ACOM’s complaints.

On 12 August 2016, the Cadiz City Council adopted a motion declaring Cadiz a city free of Israeli apartheid and committed to abstain from procurement and cooperation with companies and institutions complicit in Israel’s violations of Palestinian human rights. Based on this motion, the City Council cancelled an Israeli embassy-sponsored film festival in a city-owned venue, in September 2017.

In response, ACOM filed a criminal complaint against the members of the City Council who voted in favour of the motion, as well as against APDHA who sponsored the motion. This was admitted to the Cadiz Court of First Instance in June 2019. ACOM argued that by adopting the motion and by cancelling the film festival, they had committed both a hate crime and a crime of arbitrary exercise of power (prevaricación).

The ELSC assisted the lawyers of the City Council with a legal memo arguing that the Council of Cadiz acted in compliance with international law because:

1. All states have an obligation to not recognize or assist an unlawful situation created by any state through a serious violation of international law;
2. City councils, being an intermediary organ of the State under international law, are fully legitimate, competent and required to act in compliance with these obligations. Hence, the City Council of Cadiz, by adopting the “Israeli Apartheid Free Zone” acted in full compliance with the duties of non-recognition and non-assistance of an unlawful situation.

Both the Court of First Instance and the Court of Appeal dismissed ACOM’s criminal complaints. In a judgment of 16 December, the Court of First Instance ruled that the City Council had no way of knowing that its anti-apartheid motion could be deemed illegal because other Spanish cities were participating in the campaign and because the Spanish Parliament had adopted a motion recognizing the right of citizens to support the BDS movement.

The Court further ruled that the Spanish hate crime code is not applicable to the cancellation of the Israeli-embassy sponsored film cycle, because it was carried out to promote human rights and fair trade, and there was no expression of hatred, antisemitism or discrimination based on Israeli nationality.

The Court of Appeal confirmed the Court of First Instance’s ruling, stating that while it is possible to agree or disagree with the motion, it simply calls on the Israeli government to comply with International law. The Court concluded that there was no discriminatory intent and therefore “the elements included in the statutory definition of the [hate] crime do not exist”.