Figaredo, Vox ultra, facing a possible judicial problem for wanting to "hunt" immigrants: is he immune for being a deputy or could it be a hate crime?

In recent days, the words of Vox deputy, José María Figaredo, in which he calls to "hunt and fish" Ceuta migrants, have been in the news.

In relation to this issue, there are several matters to address. The first is whether, by virtue of being a deputy, he enjoys any type of immunity or inviolability, as well as, if he does not, whether these words could constitute a hate crime.

Regarding the first question, it is necessary to take into account that art. 71.1 CE establishes that "deputies and senators shall enjoy inviolability for opinions expressed in the exercise of their functions." This means that any statement made outside the Chamber is unprotected, such as, for example, in a rally, an interview or a social network, as has happened in this case, since Mr. Figaredo makes these statements outside the Chamber of the Congress of Deputies.

However, being a deputy, he does enjoy immunity. This means that, in order to indict or prosecute him for an alleged hate crime, the corresponding authorization, the so-called "suplicatorio", provided for in art. 71.2 CE, must be requested from Congress beforehand.

Having resolved the first question, according to which there is a possibility that he may be investigated for these acts, it is necessary to determine whether these words can constitute a hate crime under article 510 CP. To do this, we must analyze the elements of this type of crime:

1. Public conduct. The author must foster, promote or incite hatred. It can be done in a public act, interview, rally, social network, video, etc., as happened in this case.
2. Protected recipient. The message must be directed against a group, a part of it or a person for belonging to that group. In the present case, the message is directed at the migrants of Ceuta; therefore, there is a specific and determined group.
3. The conduct must attack them because of their belonging to that group.
4. Objective suitability of the message. This is where the most relevant part is, given that not every offensive, crude or provocative expression constitutes the crime. The message must be apt to foster a climate of hatred. Among other factors, the following are valued:

• The literalness, tone and context.
• The medium and scope of dissemination.
• The audience and the sender's capacity for influence.
• Repetition.
• The existing social situation.

In the present case, we are facing a social situation of great tension due to the massive arrival of migrants, mainly because of how it has occurred. This, coupled with the reach of the dissemination, could indeed lead one to consider that we are dealing with an appropriate message, since the word "cazar" (hunt), according to the RAE, means "to seek or pursue birds, wild beasts, and many other kinds of animals to capture or kill them".

Even if one wanted to use the word "cazar" as a synonym for "perseguir" (pursue), we would still be facing a phrase that comes to say that "migrants must be pursued", an expression which, in its literalness and in my opinion, could also be constitutive of a crime if the rest of the requirements are met. For let us imagine a scenario in which the Spanish population pursues migrants to capture them; in any case, it is the agents of authority who must carry out controls, not ordinary citizens.

Finally, it should be noted that for this crime to occur, it is not necessary for a subsequent aggression to take place; the existence of the message is sufficient, as is the case.

In short, it is possible for the prosecution to investigate whether the conduct may constitute a crime given that we are facing a manifestation that is at the very least out of place, and it will be justice that must determine whether it constitutes a crime.