Glorification of terrorism: From the De Juana Chaos case to César Strawberry. The reception of the constitutional doctrine in the Supreme Court’s case law

Abstract

The paper deals with the impact of the first ruling of the Constitutional Court on glorification of terrorism (112/2016) in the interpretation of this offence by the Supreme Court, which demands hermeneutically requirements absent from the literality of art. 578 of the Criminal Code and that the Constitutional Court required in its previous case law on hate speech, recently reiterated in the ruling 35/2020 of the Constitutional Court. Firstly, the text addresses the initial description of the elements of this criminal figure by the Supreme Court and its characterization as public defence without incitement, as opposed to the definition of the crime of public provocation to terrorism in the 2008 Framework Decision of the European Union and the Council of Europe Convention for the prevention of terrorism of 2005, both requiring direct or indirect incitement to terrorism, intention to incite and generation of a risk.
Secondly, the fundamental aspects of ruling 112/2016 are summarized.
This judgement extrapolates the doctrine established in the ruling 235/2007 of the Constitutional Court on the justification of genocide to glorification of terrorism, relying on previous international texts as well
as on the case law from the ECtHR. Accordingly, this makes the constitutionality of punishing glorification of terrorism conditional on both, indirect incitement to terrorism - contradicting the legal doctrine of the Supreme Court that considers it public defence without incitement - and the existence of a risk for other people or for the system of liberties.
The central part of the text focuses on the reception of this constitutional interpretation of glorification of terrorism in the legal doctrine of the Supreme Court arising from the aforementioned ruling 112/2016, dealing separately with the three elements required by this ruling: the intention to incite as «trend element» whose criminal relevance was denied in a widely known ruling (subsequently affirmed in the most recent case law though); indirect incitement to terrorism, based on the Convention, the Framework Decision and the recent 2017 Directive, despite another judgement considers that art. 578 CC does not require incitement but the aptitude to raise a potentiality of risk; and, finally, the risk itself that, on the one hand, is linked to the impact of expressions on social networks, mainly attending to the criterion of potential diffusion based on qualitative elements and, on the other hand, is characterized as an abstract and not specific, aptitude risk to create a favourable atmosphere to terrorism, which is estimated based on the elements listed in the Directive. Finally, in the context of a recapitulation of the elements that constitute the «application canon of constitutionality» of glorification of terrorism, the text concludes with an analysis of the ruling 35/2020 of the Constitutional Court, which reaffirms the need to assess the intention in the criminal prosecution of glorification by considering whether the conduct constitutes the exercise of freedom of expression or not, and a prospective reflection on the practical consequences of these constitutional leading cases on the application of the offence of glorification by the criminal courts. 

Summary:
I. Introduction. II. Elements of the offence: public defence without incitement.
III. The ruling 112/2016 of the Constitutional Court: glorification
of terrorism as hate speech. IV. Constitutional interpretation of glorification
of terrorism in the Supreme Court’s legal doctrine: 1. The intention
to incite terrorism as a «trend element». 2. From indirect incitement to
the «aptitude» to generate risk. 3 The risk situation: a) The impact of
dissemination on social networks b) An abstract or aptitude risk. V. The
ruling 35/2020 of the Constitional Court and concluding remarks.