Call for an informed and depoliticised debate on apology of terrorism in the Criminal Code

“[…] freedom of expression constitutes one of the essential foundations of a democratic society […] It applies not only to ‘information’ or ‘ideas’ that are favourably received or considered inoffensive or indifferent, but also to those that offend, shock, worry: this is what is wanted by pluralism, tolerance, and open-mindedness, without which there can be no democratic society”.¹ This is how the European Court of Human Rights reminded France of the scope of the right to freedom of expression, a fundamental pillar in any democratic society.

The bill proposed by Member of Parliament Ugo Bernalicis aiming to repeal the criminal offence of apology of terrorism from the Criminal Code sparked numerous polarised reactions within the political class and media sphere, some of which have been completely disproportionate and undemocratic, reflecting deeper divisions within French society over the balance between national security and respect for civil liberties.

These reactions can partly be explained by France’s particular relationship with counterterrorism, and especially the memory of numerous attacks, among which the one perpetrated against Charlie Hebdo, whose 10th anniversary was just commemorated, but also the extremely tense climate of public debate linked to the conflicts in the Middle East. Nonetheless, they do not constitute a proportionate response to an initiative that raises a fundamental question concerning the measured use of counterterrorism measures and the danger that their misuse threatens our fundamental rights and the rule of law.

In this context, it becomes essential to establish a real democratic debate on the legal status of the offence of apology of terrorism. Our analysis reveals five major arguments in favour of such a discussion, pleading for a collective reflection that is calm and rigorously informed.

• Increasing number of warnings about the abuse of the offence of apology of terrorism.

The offence of apology of terrorism was reclassified from press law to the Criminal Code in 2014 through the adoption of the Cazeneuve law, thus recognising it as an ordinary criminal offence, as part of national responses to the rising threat of terrorism and the evolving security challenges. Supporters of the law had argued that the legal framework was not sufficient to address the increasingly complex and immediate nature of terrorist threats.

Since its adoption, this modification sparked an intense public debate, with public figures and civil society actors worrying about the risks to freedom of expression that it could imply. Reporters Without Borders and the rights advocacy group La Quadrature du Net had warned that the reclassification risked confusing controversial yet legal statements with truly reprehensible remarks, paving the way for illegal prosecutions against journalists, lawyers, and ordinary citizens. Furthermore, the Syndicat de la Magistrature strongly criticised the judicial handling of cases concerning the apology of terrorism, arguing that the Justice Ministry had adopted a rigid stance of principle rather than a more nuanced approach. According to the union, this approach reduced criminal justice to a tool for moral condemnation, compromising the critical discernment necessary in such complex situations.

Since then, criticism from civil society organisations, jurists, academics and independent media has increasingly questioned this reclassification. More recently, Marc Trévidic, a former antiterrorist judge who, in 2014, supported stricter legislation on this offence, has since become critical of the current application of this law. M. Trévidic emphasises that, following the 2015 attacks in Paris, the use of this law expanded rapidly, although the majority of these cases had no real link with terrorism. He remembers cases where individuals – such as those acting under the influence of alcohol during arrests – were prosecuted under this law for behaviour that would previously have been treated as contempt of authority.

Regarding this reclassification, M. Trévidic expressed his regrets, acknowledging that it was necessary to fight the rising influence of extremist online propaganda, but that it could have been achieved through a targeted legislative response focusing specifically on jihadist propaganda rather than removing the apology of terrorism offence from press law.

• Unclear offences, non-specialised justice: the mechanism behind the condemnation rates for apology of terrorism

Only a few months after the promulgation of the Cazeneuve law, the concerns raised by civil society became more concrete and alarmingly clear. As only 14 convictions were recorded for apology of terrorism between 1994 and 2014, this number rose to 332 in 2015 and 495 in 2016, underlining the way the reclassification of the offence facilitated a broader and more aggressive use of the legal framework, often targeting speech that had no link with a real incitement to terrorism. 

From a procedural point of view, the reclassification of the offence of apology of terrorism in the Criminal Code removed this offence from the specialised legal framework of press law, subjecting it to ordinary criminal procedure. This reclassification shifted the offence from a legal framework in which specialised courts ruled on potential cases while taking into account the nuanced balance between freedom of expression and national security, to a standard criminal procedure, in which cases are now placed under the jurisdiction of ordinary prosecutors.

This lack of specialisation, worsened by the vague and extensive definition of apology of terrorism, left significant room for interpretation when distinguishing between real incitement to violence and controversial or dissident expression. The United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms in the fight against terrorism expressed concerns regarding the lack of clarity in the legal definition of the offence, which creates considerable legal uncertainty and an increased risk of discretionary abuse by judicial authorities. While recognising that some cases of apology of terrorism justify punitive measures, the Special Rapporteur also argued that the broad definition of the offence in the current law imposes an unjustified restriction on freedom of expression, as protected by international human rights law, particularly the Universal Declaration of Human Rights.

The lack of a clear legal framework and specialised courts tasked with assessing cases of potential apology of terrorism only exacerbates this problem. In the absence of such a framework, the French system must navigate a murky legal landscape, in which distinguishing between legitimate public discourse and statements that could be penalised under counterterrorism measures is a complex task.

• A Rule of Law issue: judicial independence

On 10 October 2023, following the terrorist attacks carried out in Israel by Hamas on 7 October, the Minister of Justice, Éric Dupond-Moretti, published a circular ordering public prosecutors to initiate legal action against any public statement supporting these attacks or portraying them as legitimate resistance against Israel. The circular, which remains in force, underlines that “statements that tend to invite others to favourably judge an offence classified as terrorist or its perpetrator, even if they are made in the context of a general interest debate and claim to be political speech”,² constitute apology of terrorism under Article 421-2-5 of the French Criminal Code.

This circular has greatly contributed to the restriction of freedom of expression and led to judicial overreach in cases involving alleged apology of terrorism. Since 7 October, 189 convictions under this offence have been recorded over nine months, while data for the period following June 2024 is not yet available. Furthermore, between 7 October 2023 and 30 January 2024, at least 626 investigations were opened by prosecutors for suspected apologies for terrorism offences.

While statements inciting hatred must be condemned, it is fundamental, in a democratic society, to distinguish between deliberately hateful statements and those made within an open dialogue and informed discussion. This distinction is necessary to ensure that the actions of all parties comply with international humanitarian standards, and that the voices of those affected are heard and taken into account in the pursuit of peace and justice. In this regard, examining the historical context and evolution of the Israeli-Palestinian conflict, as well as the humanitarian implications of Israel’s retaliatory actions in Gaza, is a matter of public interest. It raises crucial questions about respect for human rights and international law, has significant implications for regional stability and global security, and, as such, requires public scrutiny and accountability.

Contrary to the claims of former Minister of Justice Didier Migaud, judicial discretion in cases of apology of terrorism is now undermined by the increasing politicisation of legal matters. By imposing a government-approved narrative and directing judges on how to classify cases that should be left to judicial discretion, the circular challenges the independence of the judiciary.

• A Rule of Law issue: respect for the hierarchy of norms

Under Article 10 of the European Convention on Human Rights, freedom of expression is a cornerstone of democratic societies, protecting not only favourable or neutral speech but also expression that may offend, shock, or disturb. France’s extensive and inconsistent judicial practice regarding the offence of apology of terrorism contradicts these principles, particularly in cases where the act in question does not constitute a real or imminent threat to public safety.

In terms of case law, the European Court of Human Rights (ECHR) has already examined these issues in several judgments, the most recent being Rouillan v. France, in which the Court found that the authorities had violated the applicant’s right to freedom of expression by imposing a disproportionate sentence in relation to the legitimate aim pursued and necessary in a democratic society.

Nevertheless, the reluctance of the French authorities to fully implement and meaningfully engage in the enforcement of this ruling has broader implications for human rights protection in France. The binding nature of the ECHR judgments is a fundamental feature of the European human rights system, and member states are obligated to comply with these rulings to maintain the protections enshrined in the European Convention on Human Rights. Delays or failures in implementing the Court’s judgments undermine not only the Court’s authority but also France’s commitment to the rule of law, thereby calling into question the protection of fundamental rights at the national level. The absence of ambitious general measures to address the underlying conditions that led to these violations reflects a systemic failure to prevent their recurrence, and thus an inability to adequately protect the rights of individuals within France’s legal framework.

• The proliferation of SLAPP³ suits in cases of apology of terrorism

While the recent surge in legal proceedings related to the geopolitical and humanitarian situation in the Middle East highlights the risks of a politicised use of the offence of apology of terrorism, the issue at hand extends far beyond this conflict and its treatment at the national level. In France, the use of this offence to restrict legitimate critical opinions and criminalise dissent has created a chilling effect that discourages public participation. These practices, often described as SLAPPs (Strategic Lawsuits Against Public Participation), are particularly used to silence dissent on public interest issues and therefore demand urgent attention. They intimidate citizens, journalists, activists, and civil society organisations, leading to self-censorship out of fear of legal repercussions – a direct threat to the fundamental principles of democracy. SLAPPs can take civil, commercial, administrative, or criminal forms. However, when they involve criminal proceedings, the potential sanctions carry an even stronger deterrent effect, increasing the likelihood of self-censorship due to the severe consequences for those targeted. 

The current legal framework and the broad interpretation of apology of terrorism, particularly through the Dupont-Moretti circular, have created fertile ground for the expansion of SLAPP lawsuits. However, as reported by Libération, many proceedings initiated following the 7 October events remain shrouded in secrecy, leaving those involved without any information on the status of investigations or legal actions. This lack of transparency only worsens the uncertainty and anxiety experienced by those targeted, prolonging their legal uncertainty and potentially exposing them to further risks, whether in relation to their reputation, profession, or personal life.

This opacity underscores the urgent need for procedural reforms to allow for the swift dismissal of unfounded or disproportionate complaints at an early stage. The existing legal framework must be recalibrated to ensure that unfounded complaints are eliminated before they escalate. It is therefore crucial that the legal status of apology of terrorism be considered within the broader discussion on protecting individuals who legitimately exercise their right to freedom of expression from baseless complaints or abusive legal proceedings.

In this context, the European Union’s recently adopted “Anti-SLAPP Directive” underscores the urgency of addressing these abuses across Europe. The directive mandates strong safeguards to prevent the misuse of legal actions, including mechanisms for the early dismissal of such cases and sanctions against those who initiate them in bad faith. Although the Directive only concerns cross-border cases of SLAPPs and does not cover criminal prosecutions, it is of the utmost importance that its transposition into national law incorporates the recommendations made by the Committee of Ministers of the Council of Europe in its Recommendation on combating the use of SLAPPs in order to develop effective protections against SLAPPs at national level in all areas of law, whether civil, commercial, administrative or criminal, thus ensuring a space for the free expression of opinions contributing to public debate in all contexts.

Call for an informed and depoliticised debate on the matter

Regardless of one’s stance on the analyses and conclusions presented above, the discussion surrounding the legal status of the offence of apology of terrorism remains a necessity in our democratic society. Its impact on fundamental freedoms in France can no longer be overlooked.

The politically charged context of the Israeli-Palestinian conflict has exposed the risk that this debate may devolve into an ideological and partisan battleground, undermining the need for an informed, impartial, and legally sound discussion. This issue extends far beyond the immediate geopolitical context and touches on core principles of freedom of expression, the rule of law, and the democratic integrity of our society.

To ensure a constructive debate, it is imperative to depoliticise the issue and reframe the discussion around the broader implications of the current legal framework, particularly its impact on civil liberties and judicial independence. As highlighted earlier, current judicial practices surrounding this offence have led to widespread misuse, stifling legitimate dissent and public engagement while contributing to the proliferation of SLAPP lawsuits.

In this context, the media have a crucial role to play in promoting an open and balanced debate. By prioritising rigorous reporting on the legal and societal dimensions of this issue, ensuring equal treatment of diverse viewpoints, and resisting the amplification of sensationalist rhetoric, the media can, and must, preserve the integrity of the discussion. A well-informed public is essential to fostering a nuanced understanding of the legal complexities and broader significance of this debate.

Ultimately, the discussion surrounding apology of terrorism must transcend above partisan divides and focus on its deep implications for human rights and democratic governance. Addressing this issue with the seriousness and objectivity it demands is vital to safeguarding the freedoms and democratic principles that form the bedrock of our society.

In recent months, the issue of apology of terrorism has resurfaced, sparking controversy and, at times, undemocratic reactions. However, it is crucial to approach this debate with seriousness and objectivity to ensure the protection of fundamental freedoms and the rule of law that underpin our democracy. GROW calls for an informed and depoliticised debate to reconcile security concerns with the protection of civil liberties.