Malaga resident convicted of degrading treatment following continuous xenophobic insults against bar owners

The provincial court of Malaga has convicted a resident of an offence involving degrading treatment, after finding that he subjected the owners of La Mona Tapas Bar to continuous harassment and humiliation that lasted from late 2021 to late 2022.

Every time the terrace filled with customers, tensions flared up again. From a flat located directly above the well-known bar, a long-running dispute escalated over several months from complaints about noise into a criminal case.

What one side saw as a fight to regain peace and quiet in their home became, for the other, a series of public humiliations, insults linked to their origin and repeated inspections that disrupted the normal running of the business.

The defendant resided on the floor above the bar run by the complainants. According to the court ruling, the disagreements arose from the location of the terrace and the disturbances caused by the restaurant's operations.

After lodging complaints with both the business owners and the homeowners' association without achieving the desired outcome, the defendant began addressing the owners of the establishment with particularly offensive language in the presence of customers.

Among the statements confirmed and included in the judgment are: "Go back to your fing country, I'm going to shut your bar down," "Go back to your country, you're stealing from us and taking our jobs," and "You South American scum, go back to your country, you're taking my job, thief."

At the same time, he filed numerous complaints with various bodies. This resulted in continuous inspection and police visits at the establishment. Although the court acknowledges that this affected the normal course of business, it concludes that no specific economic loss resulting from these events has been demonstrated.

During the trial, several regular customers testified, corroborating the xenophobic incidents. Some claimed to have heard expressions such as "fucking Latino", "fucking foreigner" or "go back to your country, you're robbing us." Others recounted seeing the defendant photographing customers or engaging in verbal altercations with the business owners.

The defendant denied making xenophobic comments and attributed the entire dispute to noise and smoke problems. His wife corroborated this version during the hearing.

However, the court considers the statements of the victims and witnesses to be entirely credible. The panel of judges said that these accounts are "coherent, consistent and corroborated" and they found a logical explanation for the conflict's origin in the poor neighbourly relations between the parties.

One of the most striking points in the ruling is that the court ruled out a hate crime, even though the insults included explicit references to the victims' national origin.

The court examined recent Supreme Court case law on this type of offence and concluded that, in this case, the prosecution failed to prove that the defendant acted with the aim of exclusion or discrimination. According to the judges, the abusive language arose in the context of a dispute over the bar's activity, rather than simply because the owners were foreign nationals.

The judgment states: "We do not find any intent to exclude or discriminate against the complainants." It also adds that the insults took place over a period of time and "within the context of a neighbour dispute".

However, this conclusion does not prevent a conviction. The court found that the behaviour over more than a year amounted to a serious attack on the victim's dignity and clearly met the threshold for the offence of degrading treatment.

The judges emphasised that the defendant maintained "a clearly offensive conduct towards the dignity of the complainants", using language that reached "the necessary level of seriousness and intensity" to amount to degrading treatment.

The court also applied an aggravating factor of discrimination based on nationality. While it accepted that the main driver of the behaviour was the dispute over the bar, it found that the insults directly referred to the victims' status as immigrants, which added a discriminatory dimension to the case.

As a result, the defendant received a sentence of one year and three months in prison, along with disqualification from holding the right to stand for public office for the duration of the sentence.

On civil liability, he must pay each victim 2,000 euros in compensation for moral damages. The court noted that suffering caused by degrading treatment can be inferred directly from the established facts.

However, it rejected a 70,000-euro claim from the private prosecution for alleged loss of earnings. The court found that the claimants provided insufficient evidence to prove either the losses or a direct link to the conduct that led to the conviction.

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