PP937
Analítico de Periódico
PETZSCHE, Anneke
The penalization of public provocation to commit a terrorist offence : evaluating different national implementation strategies of the international and European legal framework in light of freedom of expression / Anneke Petzsche
European Criminal Law Review, v.7 n.3 (2017), p.241-257
DIREITO COMUNITÁRIO, TERRORISMO, LIBERDADE DE EXPRESSÃO, INCITAMENTO, DIREITO PENAL / Alemanha / Reino Unido, CEDH
In the last decades, the fight against terrorism has (once again) taken centre stage, not only internationally but also on the European level. On both levels, legal counter-measures have targeted specifically terrorist speech. The national legislator, in implementing international requirements and creating terrorism incitement offences, is faced with a specific problem, as there exists an inherent tension between such measures and the right to freedom of expression. This paper, after briefly considering the relevant terminology, delineates the international obligations with respect to different forms of incitement to terrorist acts, such as direct incitement or glorification. Distinct implementation strategies in national laws are then considered, with a focus on the EU member states of Germany and the UK. These states’ implementation of the European legal framework is evaluated in light of the requirements of Art. 10 ECHR. It is demonstrated that German criminal law penalises incitement through a number of different provisions. Unlike UK law, the German legislator has thereby refrained from creating a wide-scoped offence of incitement to terrorist acts. It is argued that this approach is more parsimonious and is preferable in light of the threat that such communication-based offences present to the freedom of expression safeguarded by Art. 10 ECHR. This approach not only respects the principle of proportionality but also poses less risk of a chilling effect, while the UK provisions might fulfil Art. 10 ECHR requirements only if construed narrowly.