Kostyleva O.V.

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.

Throughout the XX–XXI centuries, the Russian criminal legislation, along with traditional provisions on instigation, contains norms that provide for independent (outside the framework of complicity) responsibility for public calls for the implementation of criminal activity. The article analyzes the views of the Russian theory of criminal law on the correlation of instigation with public incitement to commit specific criminal acts in the Criminal Code of 1903, counter-revolutionary and anti-Soviet agitation and propaganda provided for by Soviet criminal laws, as well as public calls for criminal activity in the current Criminal Code of the Russian Federation. The existence of these norms in different historical periods is explained primarily by the actual limits (to a greater or lesser extent) of complicity and inchoate crimes. The expansion of the range of punishable acts primarily pursues the goal to protect the existing state system, public order and security. At the same time, the limits of such criminalization and the distinction between incitement and public appeals cannot be determined by a simple technical opposition of their features, but must be established by understanding the very concept of public appeals to commit certain criminal acts. The difficulties observed today in their differentiation are not in the least connected with the changing legislative constructions throughout the century, which predetermines the interest in their historical analysis.