CYIL vol. 15 (2024)

MAGDALENA MATUSIAKǧFRĄCCZAK the place of the competent national authorities but to review their decisions under Article 10. This does not mean that the Court’s supervision is limited to ascertaining whether these authorities exercised their discretion reasonably, carefully, and in good faith. Rather, the Court must examine the interference in the light of the case as a whole and determine whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it were relevant and sufficient. In doing so, the Court has to satisfy itself that these authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts. 12 In many of its judgments, which will be mentioned subsequently in this part of the paper, the Court analysed in detail the expressions at stake and the context in which they had been made, so it is unclear why the case Z. B. v. France was treated somehow differently. To properly evaluate a specific expression, a due regard has to be taken to its author, its addressee, its content and the context. The applicant, the author of the incriminated message, was neither a terrorist, nor a member of a terrorist organisation. This mere fact is however not decisive in the case at stake. In its case-law the European Court of Human Rights pointed out at some factors that can be helpful in deciding, whether a specific expression can be considered to be terrorist speech. Broadcasting or making otherwise publicly available of interviews or words spoken by a person representing or supporting terrorist organisation would definitely fall into such category, 13 especially if they incite to violence, incite to join terrorist organisations, portray terrorists as heroes, or glorify terrorist or their organisations. 14 Terrorist speech would also encompass exaltation of separatists’ insurgence and armed resistance, violent methods used by separatists, as well as stigmatisation and dehumanisation of their victims. 15 This may include some forms of hate speech, meaning a speech instilling a deepseated and irrational hatred against identifiable persons. 16 On the other hand, a publication cannot be considered to be terrorist content if it does not incite to violence, to armed resistance, or uprising. An expression calling for peaceful and democratic solution of a conflict would be protected by the freedom of speech, even if it is made by persons listed as terrorists. 17 The most aggravating for the applicant in the case Z. B. v. France was the content of the incriminating messages. It referred to the 11 th of September, without specifying any year, 12 ECtHR, Perinçek v. Switzerland, app. no. 27510/08, judgment of 15 October 2015, at 196. 13 ECtHR, Brind v. the United Kingdom, app. no. 187/14, decision of 9 May 1994. EComHR, Purcell and others v. the United Kingdom, app. no. 15404/89, decision of 16 April 1991. 14 ECtHR, ROJ TV A/S v. Denmark, app. no. 24683/14, decision of 17 April 2018, at 45–48. ECtHR, Zana v. Turkey, app. no. 69/1996/688/880, judgment of 25 November 1997, at 56–62. ECtHR, Yavuz and Yaylalı v. Turkey, app. no. 12606/11, judgment of 13 December 2013, at 51. J. C. Aguerri, Del “terrorista” al “radical”: los delitos de subjetividad en el código penal español, “Revista Crítica Penal y Poder” 2017, no. 13, p. 156. 15 ECtHR, Sürek v. Turkey, app. no. 26682/95, judgment of 8 July 1999, at 62. ECtHR, Stomakhin v. Russia, app. no. 52273/07, judgment of 8 October 2018, at 99–109. ROLLNERT LIERN, G. Incitación al terrorismo y libertad de expresión: el marco internacional de una relación problemática , Revista de derecho político 2014, no. 91, p. 249. 16 ECtHR, Belek and Velioğlu v. Turkey, app. no. 44227/04, judgment of 6 October 2015 , at 20–27. See also: ECtHR, Öner and Türk v. Turkey , app. no. 51962/12, judgment of 30 June 2016, at 24. ECtHR, Özer v. Turkey, app. no. 69270/12, judgment of 11 February 2020, at 29. ECtHR, Müdür Duman v. Turkey, app. no. 15450/03, judgment of 6 October 2015, at 26–37. 17 ECtHR, Belek and Velioğlu v. Turkey, app. no. 44227/04, judgment of 6 October 2015, at 20–27.

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