The so-called hate crime, primarily regulated under Article 510 of the Spanish Criminal Code, constitutes one of the most complex and debated offences in contemporary criminal law. Its purpose is not to punish opinions or ideologies, but to safeguard human dignity and the principle of equality against conduct that promotes, incites or entails discrimination, hostility, humiliation or violence against individuals or groups defined by race, national origin, religion, sex, sexual orientation or other personal or social circumstances.
From a doctrinal perspective, hate crime displays a distinctive structure. The existence of objectively offensive conduct is not sufficient; an additional subjective element is required, namely discriminatory motivation. The perpetrator must not only act with intent, but such intent must be guided by an animus of exclusion or contempt towards the “other” on account of belonging to a protected group. This requirement distinguishes hate crime from offences such as defamation or threats.
The intense debate surrounding this offence stems from several factors: first, the tension between freedom of expression (Article 20 of the Spanish Constitution) and the prohibition of discrimination (Article 14); second, the need to prevent an undue expansion of criminal law into the realm of mere opinion; and third, the evidentiary difficulties in proving discriminatory motivation as a constituent element of the offence.
Within this doctrinal and practical context falls Judgment No. 114/2026 of 11 February, delivered by the Criminal Chamber of the Supreme Court, which establishes criteria regarding the existence of a hate crime in cases involving racist insults linked to immigrant status.
Background of the Case and Procedural History
The facts arose from an altercation on 16 January 2022 in a commercial establishment in Valencia. The defendant, believing that a vending machine had failed to return one euro, argued with the owner and addressed him with expressions such as “fucking black, I’m going to kill you.” Subsequently, even in the presence of police officers, he reiterated the insults and added: “we’re going to throw you out of the neighbourhood, you’re scamming us, monkeys,” reproaching the officers for treating him in a certain manner “being Spanish” and not the victim.
The Provincial Court of Valencia convicted the defendant as the perpetrator of an offence committed in connection with the exercise of fundamental rights and public freedoms under Article 510.2(a) and (5) of the Criminal Code, sentencing him to six months’ imprisonment, a fine and special disqualification, as well as for a minor offence of threats under Article 171.7. The High Court of Justice of the Valencian Community upheld the conviction. The appeal in cassation was ultimately dismissed by the Supreme Court.
The Central Legal Issue: Racist Defamation or Hate Crime?
The core of the appeal concerned the alleged misapplication of Article 510.2(a). The appellant argued that the incident was isolated, the result of anger, without affiliation to any racist group and without intent to promote collective hatred.
The Supreme Court rejected this argument and focused its analysis on discriminatory motivation. It held that the attack occurred “due to his social exclusion for not having Spanish nationality,” thereby constituting a hate crime. It was not merely an insult, but a discursive construction asserting the inferiority of the other based on non-national status.
The Court emphasised that the repeated use of the expression “fucking black” constituted a direct manifestation of hatred on grounds of race and skin colour, infringing the victim’s dignity. Moreover, the statement “we’re going to throw you out of the neighbourhood” projected an intention of territorial and social exclusion.
According to the Court, these expressions reveal an exclusionary intent that goes beyond mere animus injuriandi. Thus, the specific subjective element characteristic of hate crime is established: contempt towards the “other” by reason of belonging to a group defined by race and origin.
Legal Interest Protected and Constitutional Dimension
The judgment develops in particular the legal interest protected. Hate crime safeguards not merely individual honour, but equality and dignity as foundational pillars of the constitutional order.
The Court recalls that discrimination affects not only the individual victim but society as a whole when a basic norm of tolerance is breached. From this perspective, a racist attack is not an isolated interpersonal conflict but an aggression against the pluralistic model of coexistence enshrined in the Constitution.
Article 510 is systematically located among offences against the Constitution, specifically those relating to the exercise of fundamental rights, reflecting that the conduct sanctioned compromises structural democratic values.
Public Nature of Hatred and Its Manifestation in Public Events
In a significant passage, the Court states that hatred is generally expressed publicly in order to deepen the harm and signal to society that the person should be hated for being different. It highlights the prevalence of hate crimes in public spectacles, particularly in sports stadiums, where racist chants must not be trivialised.
The public dimension intensifies the harmful impact; publicity aggravates rather than mitigates the offence.
Discriminatory Motivation as Delimiting Element
The Court reiterates that hate crime requires intent together with an additional subjective element: discriminatory motivation. No specific intent to provoke future violence is required, but the conduct must be driven by hostility towards the group to which the victim belongs.
In the present case, the expressions reflected an exclusionary worldview portraying non-nationals as inferior and symbolically expelling them from shared social space. The remark to the police officers “being Spanish” evidenced a hierarchical differentiation between nationals and non-nationals which, when translated into public humiliation and contempt, fulfils the elements of Article 510.2(a).
Conclusion
Judgment 114/2026 constitutes a highly significant ruling in defining the scope of hate crime. The Supreme Court establishes that when expressions humiliate and exclude on grounds of race or nationality, accompanied by proven discriminatory motivation, the conduct transcends mere defamation and falls within Article 510.2(a) of the Criminal Code.
The ruling reinforces that equality and dignity are not rhetorical values but enforceable normative limits. Discourse asserting the inferiority of others and advocating their exclusion undermines democratic coexistence and justifies criminal intervention.
Far from criminalising ideas, the judgment precisely delineates the scope of criminal liability by requiring a proven context and motivation of hatred, thereby enhancing legal certainty in a controversial yet essential area for the protection of constitutional values in a pluralistic society.
