After Rima Hassan, candidate for La France insoumise (LFI) in the European elections, the leader of the LFI deputies, Mathilde Panot, announced on Tuesday April 23 that she was going to be interviewed by the police as part of an investigation into “ apology for terrorism.” She specified on ‘Israel, in which it was written that “the armed offensive by Palestinian forces led by Hamas [came] in a context of intensification of the Israeli occupation policy.”
According to Mathilde Panot, it is “the first time in the entire history of the Fifth Republic that a president of an opposition group in the National Assembly has been summoned for such a serious reason” and she warned about the “alarming attacks against freedom of opinion and against democracy”.
The offense of apology appears in the law on freedom of the press. This text punishes with five years’ imprisonment and a fine of 45,000 euros the authors of “war crimes, crimes against humanity, crimes of reduction into slavery (…) or crimes and offenses of collaboration with the enemy.” The initial version, passed in 1881, punished people who had “provoked to commit the crimes of murder, pillage and arson, or any of the crimes against the security of the State”.
A few years later, in a context of increasing political attacks, laws against anarchism were adopted, described as “villainous laws”, in 1893 and 1894. One of them provides that a judge can order the seizure and preventive arrest of persons suspected of glorifying crimes. “These are the real first applications of this offense to activists,” explains Vanessa Codaccioni, lecturer in political science at Paris-VIII University and author of Punishing Opponents (CNRS éditions, 2013). The goal was to eradicate anarchist activities and repress all embarrassing speech considered in opposition to power. »
This offense led to dozens of indictments throughout the 20th century. During the Indochina War (1946-1954), “activists, often from the Communist Party, were prosecuted for advocating the crimes of looting, arson and acts of military disobedience,” recalls Vanessa Codaccioni. In the 1970s, the publishing directors of the Proletarian Left newspaper La Cause du peuple, Jean-Pierre Le Dantec and Michel Le Bris, were sentenced, respectively to one year and eight months in prison, for “the offense of provoking crimes against state security and condoning murder, theft, pillage and arson.”
In 2014, the law strengthening the provisions relating to the fight against terrorism transferred the offense of advocating terrorism to the penal code. According to article 421-2-5, the penalty incurred, five years of imprisonment and a fine of 75,000 euros, is extended to seven years of imprisonment and a fine of 100,000 euros if the acts are committed via the Internet. The transition from the area of ??press freedom to that of common law facilitates placement in police custody or immediate appearance procedures.
As the public service site defines it, apologizing for terrorism consists of “presenting or commenting favorably either on terrorist acts in general, or on specific terrorist acts already committed” publicly or on social networks. “It’s saying ‘well done’ or ‘well done’,” summarizes Vanessa Codaccioni, who deplores a misinterpretation of this law.
Public prosecutors, associations or ordinary citizens have been able to report all illegal behavior and content online on the Pharos government platform since 2009 or file a complaint. Since the Hamas attacks of October 7, several associations such as the European Jewish Organization (EJO) or the French Jewish Youth (JFJ) are pleased to have filed complaints against dozens of people, including the former LFI candidate for the presidential election Jean-Luc Mélenchon, the “rebellious” MP Danièle Obono and the spokesperson for the New Anticapitalist Party (NPA), Philippe Poutou.
As of October 10, 2023, the Minister of Justice, Eric Dupond-Moretti, recalled in a circular that the “comments praising the attacks, presenting them as legitimate resistance to Israel”, as well as the “public broadcast of messages inciting to pass a favorable judgment on Hamas or Islamic Jihad”, could constitute the offense of advocating terrorism.
Since then, lawyer Vincent Brengarth has deplored “an increase in prosecutions” for this offense. According to Agence France Presse (AFP), the Paris prosecutor’s office has received 386 referrals linked to the conflict between Israel and Hamas. Several personalities were summoned by the police, such as SUD Rail unionist Anasse Kazib, former French basketball player Emilie Gomis and six students from the Student Solidarity section of the School of Advanced Studies in Social Sciences.
The majority of files are still under investigation. The general secretary of the CGT du Nord, Jean-Paul Delescaut, was sentenced to one year in prison on April 18. After the Hamas attack, the departmental union published a leaflet, since withdrawn, in which was written: “The horrors of the illegal occupation have accumulated. Since Saturday [October 7], they have received the responses they provoked. » The head of the CGT appealed this conviction.
Alice Dejean de la Bâtie, lecturer in international criminal law at Tilburg University in the Netherlands, doubts that convictions will increase, since “judges will have to establish a link between comments on the situation in Palestine and the Hamas attacks. » “The European Court of Human Rights [ECHR] could otherwise intervene,” continues the researcher. This European court has already condemned France in 2022 for “heavy criminal sanctions” against Jean-Marc Rouillan, co-founder of the armed far-left group Action Directe, who had described the authors of the terrorist attack against Charlie Hebdo in 2015. Despite the ECHR ruling, the Toulouse Court of Appeal once again sentenced him to prison in 2023.
Me Brengarth is concerned about the evolution of the interpretation of the text: “Normally, this offense must target the most serious cases, such as encouragement of terrorist action. Here, we are rather critical of Israel’s position, which do not, in themselves, constitute an apology or legitimization of the October 7 attacks. » The lawyer represents Rima Hassan, candidate in seventh position on the LFI list in the European elections, who will be interviewed on April 30.
A number of activists and politicians, including other parties, have criticized this summons of a candidate three months before an election. “Political disputes” should not “be resolved in court,” Raphaël Glucksmann, head of the Socialist Party-Public Place list in the European elections, told AFP. “We should not summon political opponents,” also deplores National Rally deputy Jean-Philippe Tanguy.
Alice Dejean de la Bâtie recalls that “this is not the first time that criminal law has been used to discredit opponents”. “But there is a general tendency, in many European governments, including France, to claim that citizens go beyond the framework of freedom of expression and enter into “apology for terrorism” when they express themselves on certain subjects,” she analyzes.
In its global annual report, published on April 24, the non-governmental organization Amnesty International warns of the risks of hindering freedom of expression in France. “We have been asking for years for these offenses of glorifying terrorism to be repealed in the laws,” said Nathalie Godard, director of action at Amnesty International France. Freedom of expression must be limited on questions of incitement to hatred, but the apology of terrorism is an offense which is defined in an extremely vague and subjective manner, and which therefore represents in itself a risk of violation of freedom of expression. »
