Decision n° 2018-706, Priority matter of constitutionality, of 18 May 2018 (Mr. XX)
- 2018
- France
Topics
Terrorism propagandaLegal bases
France: Penal Code (Code pénal) of 1994Courts
Constitutional Council (Conseil constitutionnel), FranceLaws
Freedom of Expression ProportionalityFacts
An ex-inmate, previously condemned and jailed for terrorism, expressed public support to contemporary forms of terrorism. The applicant claims, first, that the provisions punishing the justification of acts of terrorism disregard the principle of the legality of offences and penalties, since the legislature has failed to sufficiently define the scope of that offence. It also considers that these provisions would violate freedom of expression, in particular on the ground that they would criminalize conduct without requiring the perpetrator to manifest a terrorist intention and without requiring a proven risk of passage to the terrorist act. Finally, the main and additional penalties for this offence would contravene the principles of necessity and proportionality of penalties.
Legal grounds
Question relating to compliance with the rights and freedoms guaranteed by the Constitution under Article 421-2-5 of the Criminal Code, as drafted by Act No. 2014-1353 of 13 November 2014 strengthening the provisions relating to the fight against terrorism, and Articles 422-3 and 422-6 of the Criminal Code.
Findings
In the first place, by instituting the offence of public apology for acts of terrorism, the legislator intended to prevent the perpetration of such acts and to avoid the dissemination of pro-terrorism statements intended to seriously disturb public order. Secondly, on the one hand, public apology, by the wide dissemination of the dangerous ideas and words it promotes, creates by itself a disturbance of public order. The judge shall decide on the basis of the personality of the offender and the circumstances of the offence, including the extent of the public disorder. On the other hand, the facts in question are precisely defined and do not create uncertainty. Finally, if, because of its inclusion in the Criminal Code, the contested offence is not covered/surrounded by the procedural guarantees specific to press offences provided for by the Act of 29 July 1881, acts of terrorism whose justification is punishable are particularly serious offences likely to harm life or property. Consequently, on those grounds, the infringement of freedom of expression and communication by the contested provisions is necessary, appropriate and proportionate to the objective pursued. The complaint based on the lack of awareness of this freedom must therefore be rejected. In consequence, the contested provisions of Articles 421-2-5 and 422-3 of the Criminal Code and Article 422-6 of the same Code, which do not infringe any other right or freedom guaranteed by the Constitution, must be declared in conformity with the Constitution.