Aproximación empírica al delito de enaltecimiento y humillación a las víctimas del terrorismo diez años después de la LO 2/2015: ¿un delito sin tipo base que vulnera el principio de proporcionalidad?

since its introduction into the Criminal Code, article 578 has been hugely controversial. After the reform operated by LO 2/2015, it has been pointed out that article 578.1 is now practically empty of content due to the leading role of technological means in contemporary society. As a result, the aggravated modality provided for in article 578.2 would be applied automatically, leading to the imposition of sentences exceeding two years in prison for behaviors that, from the criminal law perspective, may ultimately be of minimal severity. In this context, the principle of proportionality could be seriously compromised. The main objective of this paper is to go beyond this theoretical dimension and address this issue from an empirical point of view. To achieve this purpose, all conviction rulings issued by the Spanish National Court up to the year 2025 are analyzed. Taking into consideration the results obtained, this paper concludes that LO 2/2015 has effectively turned the application of Article 578.1 into residual, opening a scenario where despite its lesser severity some behaviors can be punished with jail without the possibility of being suspended.