Whistling at the King's Cup

The Spanish Supreme Court affirmed the acquittal of a member of the Civil Guard, whose identity and photos had been  manipulated in order to implicate him in a demonstration of whistling during the National Anthem at the  2015 King's Cup, an annual soccer competition among Spanish teams, in the Nou Stadium in Madrid, the largest stadium in Europe.

On May 30, 2015, the accused went to the stadium to attend the final match of the King's Cup, between FC Barcelona and AC Bilbao. During the match a large part of the public started whistling when the National Anthem was played, in the presence of King Felipe VI.  Santiago Spot, the president of "Catalan Action" was tried but ultimately acquitted for taking advantage of the sports event to vindicate Catalan independence.

The accused, who was acquitted in January 2018 by the Military Court, appealed the judgment before the Supreme Court because he was in disagreement with the facts as found by the Military Court, which in his estimation, harmed his presumption of innocence and could prejudice him in the disciplinary file that the Civil Guard had initiated against him.

The Supreme Court ruling describes that on the day of the match the accused's companions reported to the sector where he was assigned, a series of photographs published in a Facebook profile, accompanied by disparaging commentaries, such as "Anti violence committee if you want to punish the public for whistling during the anthem, start with me, if you have the balls". These publications were disseminated by Whatsapp and reached the accused's superiors.

A disciplinary action was initiated against the accused for the presumed commission of a serious misdemeanor and he was sanctioned with a suspension of functions for actions seriously contrary to the dignity of the Civil Guard.

The Supreme Court affirmed his acquittal because in an expert report it was found that the photographs in question were the object of crude manipulation, and that the original photograph was manipulated because it had been taken at the end of the match "when no one was whistling."

The Supreme Court partially granted the accused's appeal and affirmed that his participation in the established facts has not been sufficiently proven permitting the modification of the facts in the judgment. Judge Menchen in a separate opinion noted that although he also affirmed the acquittal, the facts were not sufficiently investigated because the investigating judge did not insist on obtaining information about the authenticity of the report of the social media. He noted that the "real possibility of manipulation of digital communication systems and the anonymity, which such systems authorize and the free creation of accounts with a false identity, make it perfectly possible to pretend that something is real when it is  not."