CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ UNDERSTANDING THE CONCEPT OF “APOLOGY OF TERRORISM” … and it used the word “bomb”. All this theoretically could be seen as an apology of the events of 11 September 2001. Yet, this situation has to be distinguished from the one in the case Leroy v. France 18 in which the applicant published his cartoon merely two days after the WTC attacks. Moreover, the cartoon depicted high buildings being hit by an airplane and was accompanied by a slogan ‘We all have dreamed about it, the Hamas has done it’. 19 T he ECtHR did not share Mr. Leroy’s view that the cartoon at stake was a caricature of the fall of the American imperialism. Taking into consideration the date of the publication, the cartoon could not be regarded differently than a glorification of violent attacks that took place on 11 September 2001. By doing so, the applicant expressed his moral solidarity with the authors of this violent terrorist attack, by idealising the act itself, and thus encouraging the potential reader to positively appreciate the success of this crime. That is not the case with the circumstances forming factual background of the judgment in Z. B. v. France that took place twelve years after the mentioned attacks, so there is no direct temporary link between the attacks and the applicant’s activity. Moreover, it cannot be forgotten that the child that wore the t-shirt was in fact named Jihad and was born on the 11 th of September, therefore the messages could be directly linked to the child’s personal circumstances. The issues of the addressee of the message as well as its context have to be analysed conjunctively. On one hand it is true that the child wore the t-shirt in a nursery school and was an unconscious bearer of the incriminating messages. On the other hand, the t-shirt was hidden under a blouse and the messages would not have any addressees if the teacher did not change the child’s clothes. Moreover, the eventual addressees – the teachers and pupils in the nursery school – could not per se be incited to commit any terrorist act. An inciting to terrorism or apology of terrorism should be punished only when it causes risk that one or more terrorist offences can be committed. That is one of the conditions of penal responsibility emphasized by numerous legal instruments: Article 5(1) of the Council of Europe Convention on the Prevention of Terrorism, Article 5 of the Directive 2017/541, or Article 2(7)(a) of the Regulation 2021/784. Taking into consideration this perspective the applicant’s expressions were inapt to raise any risk of commission even a single act of terrorism. Dressing a child in such a t-shirt was mindless, reckless, and simply stupid, but in no way could it incite to commit a terrorism offence, which is a condition to consider one’s expression a terrorist speech. Already the ECtHR’s judgment in Leroy v. France was criticised as it was not based on the cartoonist’s intent to incite, but on the Court’s own post-event speculation of the eventual impact of the cartoon at stake. 20 In Z. B. v. France , the speculation is even greater, as the message could not be seen, had not the teacher decided to redress the child. The lack of the analysis of the above-mentioned aspect is striking, particularly when one takes into consideration previous judgments of the ECtHR. The Court emphasised in them that it pays attention to the manner in which statements were made and their capacity – direct or indirect – to lead to harmful consequences. 21 For example, in the case Karataş v. Turkey 22 the Court noticed that addressing the expression to a very small audience limits the 18 ECtHR, Leroy v. France, app. no. 36109/03, judgment of 2 October 2008. 19 “ Nous en avions tous rêvé, le Hamas l’a fait ”. 20 BOYNE, S.M. Free Speech, Terrorism, and European Security: Defining and Defending the Political Community , Pace Law Review 2010, vol. 30(2), pp. 475, 477. 21 ECtHR, Perinçek v. Switzerland, app. no. 27510/08, judgment of 15 October 2015, at 207. 22 ECtHR, Karataş v. Turkey, app. no. 23168/94, judgment of 8 July 1999, at 52.

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