CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ UNDERSTANDING THE CONCEPT OF “APOLOGY OF TERRORISM” … to respect the freedom of expression as protected by relevant legal instruments. The UNSC referred to Article 19 of the Universal Declaration of Human Rights and to Article 19 of the International Covenant on Civil and Political Rights. Article 12 of the Council of Europe Convention emphasizes that states shall respect their human rights obligations, in particular the right to freedom of expression, when implementing the Convention. In Motive (10) of the Directive 2017/541, the European Union indicated that the adopted measures should be strictly targeted to address the dissemination of terrorist content online, while respecting the right to lawfully receive and impart information. Rules on freedom of expression are applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock, or disturb. Such are the demands of pluralism, tolerance, and broadmindedness without which there is no “democratic society”. Freedom of expression is subjected to numerous exceptions, which must be narrowly interpreted and the necessary for any restrictions must be convincingly established. 4 As it is stated in Article 10(2) ECHR, the limitations should be prescribed by law and necessary in the democratic society in the interests of national security, public safety, or for the prevention of disorder or crime, as well as the protection of the reputation or rights of others. All these factors need to be taken into consideration when deciding over a penal conviction for terrorist speech and searching for a fair balance between competing interests. 5 In general, penalisation of terrorist speech falls within the frames of Article 10(2) ECHR, as it aims at protection of national security, public safety, and the prevention of disorder or crime and it constitutes a response to a pressing social need. At the same time limitations of the freedom of expression, especially of a penal nature, should be necessary and proportionate, not only reasonable. 6 However, one must not lose sight of the fact that incitement of terrorism or apology of terrorism constitutes the use of the freedom of expression contrary to the very values of the ECHR and is therefore an abuse of this freedom. 7 Cases on balancing the freedom of expression with combatting terrorist speech require a detailed and thorough scrutiny, particularly when the issue of proportionality is at stake. One has to take into account the author of the incriminating message, their intent and awareness, the addressees, the content, and the context. Only a comprehensive analysis of 4 ECtHR, Hogefeld v. Germany, 35402/97, decision of 20 January 2000. ECtHR, Sunday Times v. the United Kingdom (no. 2), at 50. ECtHR, Sabuncu and others v. Turkey, app. no. 23199/17, judgment of 10 November 2020, at 218. ECtHR, Z.B. v. France, app. no. 46883/15, judgment of 2 September 2021, at 55. ECtHR, Karatas v. Turkey, app. no. 23168/94, judgment of 8 July 1999, at 48. GALÁN MUÑOZ A., El enaltecimiento del terrorismo: ¿Un delito inconstitucional, incoherente e inútil, o simplemente incomprendido? , Revista Electrónica de Ciencia Penal y Criminología 2022, no. 24–32, p. 4. 5 EComHR, Brind v. the United Kingdom, app. no. 187/14, decision of 9 May 1994. ECtHR, Gürbüz and Bayar v. Turkey, app. no. 8860/13, judgment of 23 July 2019, at 34. BARENDT, E. Threats to freedom of speech in the United Kingdom? , UNSW Law Journal 2005, vol. 28(3), p. 897. ROLLNERT LIERN, G. Incitación al terrorismo y libertad de expresión: el marco internacional de una relación problemática, Revista de derecho político 2014, no. 91, pp. 233, 241. 6 BOYNE, S.M. Free Speech, Terrorism, and European Security: Defining and Defending the Political Community, Pace Law Review 2010, vol. 30(2), pp. 440, 442-443. ALAPONT, J.L. El enaltecimiento del terrorismo y la humillación de sus víctimas: límites y fundamentos de su punición en un estado democrático de Derecho , Revista Electrónica de Ciencia Penal y Criminología 2022, no. 24–1, p. 41. 7 ECtHR, ROJ TV A/S v. Denmark, app. no. 24683/14, decision of 17 April 2018. ECtHR, Gürbüz and Bayar v. Turkey, app. no. 8860/13, judgment of 23 July 2019, at 37.

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