Limits of the criminal law prohibition of public apology for terrorism: Constitutional review in France and Spain

Abstract

The article deals with the criminalization of public apology (justification, glorification) for terrorism in French and Spanish legislation. The application of these provisions is analyzed in the light of the constitutional right to freedom of expression and the case law of the constitutional control bodies of these countries. The aim of such criminal prohibitions is to prevent the creation of an environment that nurtures terrorist ideology, and thereby creates risk (often very abstract) of committing terrorist crimes. On the one hand, this approach corresponds to States’ positive obligations to protect citizens from terrorist threats, but on the other, questions of the exceptional nature of criminal law (ultima ratio) and the disproportionality of restrictions on human rights are raised. As an early warning measure, the provision that establishes liability for public apology often does not require any consequences to take place (such as the commission of terrorist crimes or at least the creation of a real danger thereof). The same applies to intent to commit terrorist offences. These particularities, along with the excessive and indiscriminate application of those prohibitions in European States, make interpretation by constitutional authorities necessary. They are asked when and under what conditions the exercise of the constitutional right to freedom of expression becomes a crime.