Is the Crime in the Eye of the Beholder?

von Thomas Hochmann

In February 2017, in a decision which was quickly translated into English, the French constitutional council ruled as unconstitutional a law that prohibited the usual consultation of terrorist websites. A few days later, the Parliament reinstated a modified version of this offense. It was, however, struck down again by the Constitutional Council on December 15th 2017.

I. The Constitutional Council’s ruling

The goal of Parliament was to prevent the indoctrination of individuals who may have gone on to commit terrorist acts. The Parliament wished to enable the authorities to intervene at the earliest stages. An individual should be stopped and punished before he takes his terrorist project to the next level.

This statute thus raised a classical problem of criminal policy, made only more stringent in the context of liberal democracies facing terrorism: the difficult balance between liberty and security. Criminal law can indeed intervene before the occurrence of the harmful consequence that the state wishes to prevent. But there has to be a limit to this approach: the most efficient way to avoid terrorist attacks would be to forbid everyone to leave their home.

The Constitutional Council ruled that the statute under review was an unnecessary restriction of freedom of expression. There were less severe means that could just as efficiently contribute to the prevention of terrorist acts and the protection of public safety. French law already contains many provisions allowing the competent authorities to stop an individual who is preparing a terrorist attack. There is no need to go further upstream, and to intervene at the stage of the consultation of websites, even before a terrorist intention can be identified.

The gap between, on the one hand, the act of usually accessing terrorist websites, and, on the other hand, the perpetration of a terrorist attack, seems too large ...

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