El derecho penal contra-discursivo frente al terrorismo

análisis y crítica del caso español

Abstract

This study analyses from a legal and political-criminal perspective the terrorist offenses that affect terrorist speech and radicalization in Spanish legislation, whose expansion and intensification has been notorious in recent national reforms, in order to assess its possible preventive effectiveness and the practical consequences of its application. For all this, we will use the axiological method, valuing the principles and values that make up the basis of the current legal system and applying them to the social problems to which we want to provide a normative response. We will add to this method the perspective of a critical and comparative analysis on a criminological basis. With all of that said, we begin by reasoning an essential concept of terrorism, taking the criminological elements that characterize this kind of violence, to later analyze if the Spanish criminal law against terrorism is adjusted to the reality on which it is applied. At this point, we address the configuration of the offences considered as counter-discursives of terrorism, concluding that its preventive effectiveness is very limited, because its application generates more ideological polarization and radicalization, in addition to subjecting to punishment behaviours that are materially distant from a strict concept of terrorism. For all these reasons, we recommend to rethink the oversize that the Spanish punitive rule has reached in the matter of terrorism, putting in value the positive effects of a transversal criminal policy based on rigorous empirical studies about the dimension of the threats, which provides proportionate and authentically preventive responses, as well as respect the constitutional system.