La lucha del derecho contra el negacionismouna peligrosa frontera. Particular estudio de los ordenamientos español e italiano

Resumo

The struggle of the Law against negationism: a dangerous border. Particular study of the Spanish and Italian legal system D. Germán M. Teruel Lozano Universidad de Bolonia / Universidad de Murcia In European society is growing the concern of the return of fascist and neo-Nazi ideologies and the spread of xenophobic and anti-Semitic, some of them fed from thesis which try to deny Holocaust and those tragic events. The struggle against these denier speeches has been carried beyond the social and academic level, and proposed the incorporation in the European legal systems of specific criminal offenses that incriminate this kind of speech: deny, trivialize, or justify the Holocaust or other genocides or serious crimes against humanity. It is a kink of speech socially repugnant, but this legislation, which finds the greatest expression in the Framework Decision 2008/913/JHA, presents doubts about its legitimacy in a system of freedoms built on the pillar of the pluralism of democratic States. Thus arises the question if new «crimes of opinion» can be emerging. The specific objective of this thesis is to analyze this policy in order to propose a configuration of the «crime of (Holocaust) denial» compatible with freedom of expression, although in general will be criticized the decision of punishing this type of behaviour through a specific crime will be criticized. In particular, the thesis would answer three main questions: firstly, denier speech must be prima facie protected by freedom of speech in an open and personalist constitutional order and what might be the "rules" that could serve as criteria to justify a limit to this kind of manifestations? Secondly, how a criminal offense specifically incriminating this kind of speech could be configured in a manner respectfully of the constitutional principles? Thirdly, it is convenient or appropriate a criminal policy which specific incriminate this kind of speech? In response to these questions it will be justify that the denier speech should be prima facie covered by freedom of speech, although the prohibition of this speech could be justify in cases where the speeches are either insulting or threatening, or when they provoke the commission of criminal acts or illicit generating a clear and present danger. Also, the thesis will justify the opposition to set up a crime for its abstract danger against public order or public peace, and it will be proposed a construction as a reinforced form of libel or insult offences. In any case, it will be criticized this policy which leads to our Criminal Codes to introduce offences similar to the old crimes of vilification the Religion or the Nation, typical of fascism regimes, on the basis of a paternalistic conception of Democracy.