Parole cattive e azioni criminose. La sottile linea di confine tra libertà di espressione e responsabilità penale.

Abstract

Opinion crimes are receptive manifestations of critical thought, which consist in merely communicative actions and offend feelings or collective and high-level moral values. The nature of these crimes causes several problems of compatibility with the Constitution and in particularly with article 21, which recognizes to everyone the fundamental freedom of thought. In the same time, opinion crimes violate the main principles of criminal law: because of the abstractness of the values that they hurt, these crimes are not really offensive and their provisions risk to be indefinite; moreover, the mere manifestation of thought is often punished with very strict sanctions, which create a big disproportion between offence and penalty. Focusing on propaganda, apology and instigation, which are a subgroup of opinion crimes, and studying the controversial theme of negationism in a comparative law prospective, this thesis questions itself about the opportunity of conserving this kind of offences in our legal system and tries to find that narrow border line that divides freedom of thought from criminal liability. By the way, our analysis will try to distinguish between words that consist in simple verbal articulations communicative of an idea and words that have an additional factual essence, which can influence someone’s will and can product concrete effects in the surrounding world. After some reflections about the social, political and ethical implications of these offences, our research comes to the conclusion by which the abrogation of opinion crimes is the only way to follow to guarantee the complete respect of the fundamental principles that permeate constitutional and criminal law. On the contrary, the persistence of these provisions in our legal system would prohibit the interchange of opinions, which is the real essence of democracy, and would impose a dominant idea, putting down all the others. The only exception is made for instigation, which is not a real opinion crime because of its peculiar nature. In fact, this specific offence marks the transformation of words in actions and represents a good compromise between the need to guarantee freedom of thought and the necessity to protect other fundamental rights.