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V. Right to Freedom of Expression

We will not keep people on our territory who issue calls to hatred, to violence and to disrespect of our democratic values.  They will leave the territory, and they will leave quickly.

—Nicolas Sarkozy, then-interior minister¹⁴⁵

France has made international headlines in recent years with its uncompromising stance towards those the authorities describe as “hate-preachers.” It is difficult to get a clear measure of how many imams or religious leaders associated with mosques or prayer halls have actually been expelled.  Part of the problem is that statements by politicians and press reports tend to speak of expulsions of “Islamist radicals,” conflating those who were removed pursuant to a criminal deportation order following a terrorism-related conviction and individuals identified by intelligence services as proselytizers of a radical form of Islam and subsequently expelled by administrative order.  In September 2006 the police Unit for the Coordination of the Fight against Terrorism (UCLAT) reported that 71 “Islamic fundamentalists,” 15 of whom were imams, had been expelled outside of judicial proceedings (in other words pursuant to administrative orders) since September 11, 2001.¹⁴⁶ In January 2007 UCLAT stated France had expelled 17 “Islamist activists,” including four imams, during 2006.¹⁴⁷

At this writing, the French government has not responded to a request by Human Rights Watch, submitted in October 2006, for information on the exact number of legal residents in France expelled for incitement to discrimination, hatred, or violence.  Human Rights Watch is aware of eight cases since 2003: Larbi Moulaye, Algerian, expelled in October 2003; Orhan Arslan, Turkish, expelled in January 2004; Omer Ozturk, Turkish, expelled in February 2004; Abdelkader Yahia Cherif, Algerian, expelled in April 2004; Abdelkader Bouziane, Algerian, expelled in April 2004 and again in October 2004; Midhat Guler, Turkish, expelled in May 2004; Abdullah Cam, Turkish, expelled in September 2005; and, Chellali Benchellali, Algerian, expelled in September 2006.¹⁴⁸  Yashar Ali, an Iraqi imam with refugee status in France since 1983, was assigned to compulsory residence in 2004 because he could not be expelled.

The determination to banish “radical preachers” stems from the interlocking goals of promoting a moderate Islam and marginalizing representatives of certain Islamic movements, in particular Salafism; ¹⁴⁹ countering radicalization and recruitment to terrorism in mosques and prayer halls; and advancing integration of France’s large Muslim population.  It is no coincidence that then-Interior Minister Sarkozy warned that “imams who propagate views that run counter to French values will be expelled” shortly after the first elections, in April 2003, for the newly created French Council of the Muslim Creed (Conseil Français du Culte Musulman, CFCM) (The Council is discussed in Chapter VIII, below). ¹⁵⁰  The Union of Islamic Organizations of France (UOIF)—the French affiliate of the Muslim Brotherhood, an Islamic group banned in Egypt—which champions political engagement based on an Islamic communalist identity, won a significant number of the seats on the CFCM.¹⁵¹   At various times, public officials have insisted on the need to protect “the youngest and weakest-minded” from those promoting separatist, discriminatory, or violent ideologies.  The 2004 statute in French immigration law allowing for the expulsion of foreigners for explicit and deliberate incitement to discrimination, hatred, or violence “against a specific person or group of persons” reflects this resolve.

Forms of public expression that directly or indirectly incite discrimination, hatred, or violence on the basis of ethnicity, nationality, race, religion, gender, sexual orientation, or handicap, or that directly incite terrorist acts or justifies such acts, are all punishable offenses in France.¹⁵²  Sanctions range from one to five years in prison and hefty fines; the law does not, however, allow for criminal deportation as a complementary sanction for these crimes.   Human Rights Watch is aware of only one case in which an imam was prosecuted for the offense of incitement to physical violence (see the discussion of Abdelkader Bouziane, below). 

Many public officials and analysts underline the lack of public solidarity demonstrated in these cases of expulsions of imams as evidence of a national consensus that promoters of certain ideas are simply unwelcome in France.  One commentator expressed this sentiment in this way: “You’re a radical Islamist preaching hate every Friday?  Well sorry, but good-bye.”¹⁵³ 

IPSOS France, a survey-based research institute, conducted a telephone survey of 523 Muslims in France in early April 2003 on a variety of subjects, including “measures designed to encourage the emergence of an Islam of France.”  An overwhelming majority—83 percent—of those polled supported the creation of an institution to train imams in France in order to prevent “foreign imams preaching an extremist fundamentalist Islam from coming to France.” When asked how they felt about prohibiting imams from preaching “an extremist fundamentalist Islam contrary to the values of the French Republic,” 55 percent of those interviewed said they favored such measures, while 39 percent said they opposed them.¹⁵⁴ 

How expulsions are viewed within France’s Muslim community, and how they may prove counterproductive to French government objectives, is explored in Chapter VIII, below.

Freedom of Expression in Europe

The right to freedom of expression has a special place in international human rights law and European societies.  Enshrined in the International Covenant on Civil and Political Rights and the European Convention on Human Rights, freedom of expression is considered a fundamental right.¹⁵⁵  Article 10 of the ECHR gives everyone the right to freedom of expression, understood as “the freedom to hold opinions and to receive and impart information and ideas without interference from public authorities and regardless of frontiers.”  The European Court of Human Rights takes the view that free expression “constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man.”¹⁵⁶  Freedom of opinion, thought and expression is frequently identified by European institutions and politicians as a key “European value.”  This was vividly demonstrated by the concerted defense of the right of the Danish newspaper Jyllands-Posten to publish a series of cartoons depicting the Prophet Muhammad that sparked a worldwide controversy and sometimes violent protests in Muslim countries and elsewhere in February 2006.

At the same time, freedom of expression is not an absolute right: international law explicitly allows for restrictions in the interest of the public good, public order, and national security.¹⁵⁷   The ICCPR prohibits “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” and the International Convention on the Elimination on All Forms of Racial Discrimination (ICERD) requires States to make the dissemination of ideas based on racial superiority, incitement to racial discrimination or to acts of violence “against any race or group of persons of another colour or ethnic origin” a punishable offense.¹⁵⁸ 

In Europe, the experience of fascism and the horrors of the Holocaust have created a strong sensitivity to the real harm that hate-filled and racist opinion and expression can inflict. Several European Union and Council of Europe guidelines and binding instruments address the issue of hate speech, and a number of countries have specific laws making hate speech a crime.  Seven countries in Europe, including France, have made denial of the Holocaust a criminal offense.  The jurisprudence of the European Court of Human Rights reflects this sensitivity.  The court has asserted that “it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance,”¹⁵⁹ and has consistently taken the view that speech involving Holocaust denial is not protected by article 10 of the European Convention.

The European Court has frequently grappled with the tension between freedom of expression, on the one hand, and the authority of governments to restrict certain forms of expression, on the other.  In accordance with the court’s jurisprudence, legitimate interference with the right to freedom of expression within the meaning of article 10 must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society.  The court is primarily concerned with assessing whether the interference was strictly necessary to meet a pressing social need and proportionate to the legitimate aims pursued.  National authorities must provide sufficient and relevant reasons to justify the interference.¹⁶⁰

In assessing whether an interference with freedom of expression was necessary and proportionate, the court takes into account a number of criteria, including the potential impact of the expression in view of where and how it was disseminated; the figure, position, and personal history of the speaker or writer; the nature of the target of the criticism; and the context in which the expression was made.  The main test, however, is whether the expression incited violence or communicated a message that violence was necessary or justified. 

The court has thus taken the view that interference with speech could be justified where it advocated “intensifying the armed struggle, glorified war and espoused the intention to fight to the last drop of blood” in a context of ongoing conflict¹⁶¹ but has ruled that even statements giving moral support to terrorist movements are protected by article 10 if the authorities are unable to provide convincing evidence that these statements would have a “harmful effect on the prevention of disorder and crime.”¹⁶²  The court has considered expressions of hostility for national authorities, support for separatist aspirations, virulent criticism of government action, condemnation of democracy, and promotion of sharia law to be protected speech within the meaning of article 10 to the extent they do not directly advocate violence.¹⁶³

Two critical elements of incitement—intent and causality—emerge from ECtHR jurisprudence.  These are found in other international instruments. In May 2005 the Council of Europe adopted the Convention on the Prevention of Terrorism, requiring states to establish the crime of “public provocation to commit a terrorist offence.”¹⁶⁴  This is defined as the dissemination of a message to the public “with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.”¹⁶⁵  The Convention creates a clear causal link between a statement deemed to be provocative and the act that is to be prevented; it also establishes a “mental requirement” in providing that such public provocation should be a criminal offense if committed “intentionally.”¹⁶⁶ 

The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, a non-binding set of guidelines drafted in 1995 by a group of international experts, stipulate that authorities may legitimately punish expression as a threat to national security only under the following conditions: 1) the expression is intended to incite imminent violence; 2) it is likely to incite such violence; and 3) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.¹⁶⁷

Case studies

The three cases detailed below reflect the kind of expression giving rise to expulsions from France and the content of the intelligence reports used in court.  All of the state’s evidence, generally contained in these intelligence reports, must be made available to the defense; the use of classified, or secret, evidence is not allowed.  There is little doubt that many of the comments these three imams allegedly made are contrary to the principles of human dignity, tolerance, and respect, and are deeply offensive to many people in France.   In some cases, these comments appear to justify the use of violence.   There is considerable doubt, however, that these comments constitute criminal incitement to violence and/or terrorism as contemplated under international law.

Abdelkader Bouziane

Abdelkader Bouziane, the 54-year-old imam of the El Forquan mosque in Venissieux, a suburb of Lyon, was expelled twice from France in 2004 in what was undoubtedly the most high-profile case to date involving the administrative expulsion of an imam.  The case prompted the French government to change the law to broaden the grounds for hate speech expulsions, and to centralize all appeals against ministerial expulsion orders in the Paris Adminis trative Court (as noted in Chapter III, above).  Human Rights Watch shares the view of the two administrative judges in the minority who reviewed the case and considered that the government failed to establish a convincing case that expulsion was necessary.¹⁶⁸  

Bouziane moved to France from his native Algeria in 1979 and resided there legally until 2004.  He is the father of 16 children, 14 of whom are French citizens, by two wives.  On February 26, 2004, then-Interior Minister Dominique de Villepin issued a ministerial expulsion order stating that Bouziane “openly incites hatred and violence… appears to be one of the principle vectors of Salafist ideology in the Lyon area… [and] appears to entertain in an active manner contacts with very determined members of the fundamentalist Islamist movement in the Lyon area and internationally in relation with organizations that promote terrorist acts.”¹⁶⁹ His expulsion was deemed an “overwhelming necessity” and “absolutely urgent.”

Unaware of the ministerial expulsion order, which had already been issued but not yet communicated to him, Bouziane gave an interview to a local magazine, Lyon Mag, published on April 1, 2004, in which he was quoted as saying that women are not equal to men, that they do not have the right to work alongside men because they would be tempted to commit adultery, and that husbands are authorized by the Koran to beat their wives in certain situations such as adultery.  He is quoted as clarifying that husbands cannot hit women just anywhere: “He should not hit the face but should aim low, [for] the legs or the stomach.  And he can hit hard to scare his wife so she won’t do it again.”¹⁷⁰ 

The public furor these comments provoked apparently prompted the authorities to move more swiftly.  On April 20 Bouziane was notified of the expulsion order and detained.  He was expelled to Algeria the following day.

Bouziane’s lawyer filed appeals the same day as the expulsion, and on April 23 the interim relief judge at the Lyon Administrative Court upheld Bouziane’s petition for suspension on the grounds that the intelligence reports did not convincingly demonstrate that the expulsion was justified.  The judge confirmed his ruling three days later, after the government had contested the decision and submitted further documents.  As a result of this ruling, Bouziane returned to France on May 21.  The Interior Ministry appealed the lower court’s decision to the Council of State, which ruled in favor of the Interior Ministry on October 4. Bouziane was expelled for the second time on October 6.  In July 2005 the Lyon Administrative Court rejected Bouziane’s appeal on the merits against the expulsion order, and the Court of Appeals confirmed that ruling in November  2006.  According to Bouziane’s lawyer: “I asked the judge to examine the materiality of the facts, to verify that this man’s [Bouziane’s] speech was subversive, to go further, but the judge said no, we cannot, the RG file is complete.”¹⁷¹

The intelligence reports submitted by the government to substantiate the threat posed by Bouziane were at the center of the legal debate.  The government submitted three intelligence reports (notes blanches) to the interim relief judge hearing a petition in April 2004 to suspend the expulsion, and a fourth to the Council of State in May 2004.  According to the conclusions of the government commissioner¹⁷² for the case in the Council of State, the first note is “at the same time brief and lacking in detail” and “limits itself to making assertions.” The second note is a discussion of Salafism, while the third is a two-page report describing Bouziane’s role as “religious reference point” for Salafist groups, and his “privileged contact” with militants providing logistical support for jihadist movements.¹⁷³  The government commissioner said that this report, though more detailed than the others, “still does not provide any… specific act, any date, any name… to support the allegations it contains.”¹⁷⁴

Human Rights Watch was able to study the fourth note blanche, submitted to the Council of State in May.  It describes Bouziane as a “veritable spiritual leader” of Salafist groups in the Lyon area and his doctrine as consisting essentially of a “permanent denunciation of the West, of its values and the rules of democracy… This propaganda, with a strong anti-Christian and anti-Semitic dimension, is identical to that used by Salafist imams who have already been expelled [Larbi Moulaye and Yahia Cherif, named in the report].”¹⁷⁵  The report contends that Bouziane “formed a network of the faithful engaged in militant jihadism” and that he had maintained relationships with the “most extremist elements” in Chalons-en-Champagne and Villefranche-sur-Saone where he had served as imam, but clarifies that Bouziane does not use his regular sermons as a “vector” to avoid attracting attention, but rather “his extremist declarations are reserved for the circle of convinced militants he has selected.”  In the same report, Bouziane is said to have called for a fatwa, on March 28, 2003, against US citizens in Iraq in the following terms: “He who wishes to die a martyr and go to heaven must now take up arms and fight the atheists.” 

The report contains much information about jihadist Salafism and relations between Salafists in France and “terrorist structures in Frankfurt[-am-Main, Germany]” as well as information about a gunfight in Frankfurt in June 1999 and the plot to bomb the Christmas market in Strasbourg.  There is, however, no mention of Bouziane in relation to these events or people connected to these events.  Some attention is devoted to Bouziane’s “trusted lieutenant” who remains unnamed but is quoted as advocating resistance to imams he called “Chirac’s men” and was allegedly in contact with certain people identified as militants.  The report concludes that Bouziane presents a “high degree of dangerousness” and is “a decisive actor in the process of recruitment leading to membership in jihadist networks.”

The Lyon interim relief judge who initially suspended the expulsion, paving the way for Bouziane to return to France, weighed Bouziane’s denials of specific accusations in the note blanche, as well as the full transcript of the Lyon Mag interview, against the intelligence report to conclude there was a serious doubt as to the legality of the expulsion.  Bouziane denied having ever pronounced a fatwa, indeed even being in a position of authority to pronounce one.  In the full transcript of the magazine interview, Bouziane said he was a Salafist, “in other words partisan of a return to the true Muslim religion with a strict respect for prayer, pilgrimage, Ramadan, etc…” and that he wished for not only France but the entire world to be Muslim.  He states, however, that the Koran prohibits forcing people to convert to Islam, and that “[e]ven if I am critical of the West, I always ask Muslims who listen to me to respect the laws of the country where they live.”  On terrorism, Bouziane said that “it is a great sin to plant a bomb” and “I firmly condemn terrorism in my sermons.”  Asked about the headscarf, Bouziane said, “We don’t force women to wear the veil… We tell them it is a sin [not to do so]. But not with the stick… With words, and soft words.  It’s not with a stick.  We’re not going to tell her, ‘you’ll go to hell, you’re against your religion.’  No, we tell her it’s an obligation.”  In his appeals, Bouziane’s lawyer argued that his client is an acknowledged follower of what Gilles Kepel, a prominent scholar on Islam and professor at the Institut d’Etudes Politiques de Paris (Sciences Po), calls the “pietistic” branch of Salafism, while the Interior Ministry had mistakenly qualified him as a representative of the so-called jihadist branch. 

It is worth emphasizing again that the ministerial expulsion order was issued before Bouziane gave the interview to Lyon Mag in which he arguably incited Muslim men to commit domestic violence.  The decision to expel was based on the speech and association detailed in the intelligence reports.  In October 2005 the Lyon appellate court convicted Bouziane of “incitement without effect to commit an involuntary attack on the physical integrity of a person,” on the basis of the interview published in Lyon Mag, an offense punishable by up to five years in prison.  He was sentenced, in his absence, to a six-month suspended prison term and a €2,000 fine.  The appeals court rejected the reasoning of the lower court, which had acquitted Bouziane in June 2005, that he had spoken in his capacity as an imam and was therefore protected by freedom of religion.

Chellali Benchellali

Chellali Benchellali moved to France from his native Algeria in 1963 and lived near Lyon until his expulsion on September 7, 2006.  He served as imam at the Abou Bakr mosque in Venissieux.  On January 6, 2004, Benchellali, his wife Hafsa Benchellali, and one of their sons, Hafed, were arrested on terrorism charges.  Another son, Menad, had been arrested and put in pretrial detention in 2002 on terrorism charges; a third son, Mourad, had been apprehended in Afghanistan in February 2002 and was at the time being held in Guantanamo Bay.¹⁷⁶  On January 8, 2004, while Benchellali was still in police custody, the interior minister issued a ministerial expulsion order arguing that Benchellali openly incited violence and hatred.  On January 12 Benchellali was remanded into pretrial detention, where he remained until May 2005.  On June 16, 2006, he was convicted of association de malfaiteurs and sentenced to two years in prison (of which 18 months suspended); he was not ordered criminally deported.¹⁷⁷  However, he was detained on September 5, 2006, and expelled two days later upon execution of the 2004 ministerial expulsion order.  Benchellali appealed the expulsion on the grounds that it was illegal because based solely on protected speech and violated his right to family life.

The two intelligence reports submitted by the government to substantiate the expulsion state that Benchellali “incites openly jihad during very politicized sermons.”  It provides several examples.  First, it mentions seven separate sermons from 2003 in which Benchellali allegedly said, “May Iraq be the tomb of the Americans, may Palestine be the tomb of the Jews, and may Chechnya be the tomb of the Russians.”  In a different sermon, still in 2003, the imam is said to have complained about the humiliation of Muslims by a “handful of Jews that God has damned,” and on another occasion denounced what he viewed as the passivity of Muslims, saying “Jews dominate the world even though there are only 14 million of them.”¹⁷⁸

Benchellali’s lawyer argued in his appeal that “[n]one of these remarks… incite… neither directly nor indirectly nor tacitly the perpetration of acts of terrorism,” adding that they “do not in any way address the situation of Muslims in France or the behavior, positions or attitudes of the French state with respect to the above-mentioned armed conflicts… As virulent as they may be, [these remarks] do no more than express an opinion about ongoing armed conflicts in which Muslims are engaged.”¹⁷⁹  These statements, the lawyer argued, do support Mujahidin, “that is, fighters resisting what is considered, in Mr. Benchellali’s opinion and more broadly by a large swath of public opinion, to be an unjustified oppression.”¹⁸⁰

One of the intelligence reports also asserts that Benchellali is close to the Salafist Group for Preaching and Combat (Groupe Salafiste pour la Predication et le Combat, GSPC) and in close relations with “very determined members of the fundamentalist Islamist movement in the Lyon area,” but according to Benchellali’s lawyer, the only people mentioned directly in the report are Benchellali’s sons Menad and Mourad, and Mourad’s friend Nizar Sassi (also detained at Guantanamo Bay and awaiting a verdict on association de malfaiteurs charges in France).   Nothing besides the quotes from his sermons is provided to substantiate the claim that Benchellali is close to the GSPC.

Boualam Azzaoum, an activist in Divercite, a grassroots organization active in the suburbs of Lyon, minimized the influence Benchellali may have had:  “He can hardly speak French, nobody listens to him.  He’s on the margins of the community.”¹⁸¹  There appears to be very little in the intelligence reports beyond the quotes from his sermons.  Benchellali’s lawyer told Human Rights Watch, “There’s nothing else in there, so that must be the worst he said… This is a crime of opinion.  It’s an open door to expel everyone if they can expel [someone] for saying virulent things.”¹⁸²   

Abdullah Cam

Abdullah Cam, a Turkish national, had lived in France for almost 20 years when he was expelled on September 7, 2005.  Having settled in Villeurbanne, a suburb of Lyon, Cam was married to a Turkish woman who had moved to France when she was five years old; they have four children, all of whom were born in France.  The ministerial expulsion order issued on August 26, 2005, called him “one of the principal religious leaders in France of the extremist Islamic movement called KAPLAN that promotes recourse to violence and terrorist action.”¹⁸³   Metin Kaplan is the leader of the “Caliphate State,” which is alleged to seek the overthrow of the Turkish government and the establishment of an Islamic state.¹⁸⁴ Cam was notified of the expulsion order and detained on September 6, and flown to Istanbul the following day.  His lawyer was able to file a petition for suspension on September 8 after Cam had already been expelled; this petition was rejected on September 26.  The Paris Administrative Court rejected Cam’s appeal on the merits against the expulsion order and the country designation order on July 7, 2006.

In early 2004, the French authorities had expelled two other alleged followers of Metin Kaplan—Omer Ozturk and Orhan Arslan—by ministerial expulsion; in January 2006 Ilyas Harman, another alleged member of the Kaplan movement, was notified of an expulsion order adopted on October 24, 2005.  The organization was outlawed in Germany in 2001.  French intelligence services are concerned that “the existence of cadres composed of young Turkish Islamists from the Kaplan movement… encourages the constitution of networks for the active support of the international radical Islamist cause.  In addition, the dissolution of the organization in Germany could incite its leaders… to transfer their activities to France and to radicalize their position.”¹⁸⁵

The intelligence report submitted as government evidence in Cam’s case is quite detailed.  As far as Human Rights Watch is aware, based on information from Cam’s lawyer and family, the intelligence report is the only evidence submitted by the government.  It contains information about travel, meetings, and association with certain individuals, such as Ozturk and Arslan, seeking to establish that Cam is a follower of Metin Kaplan.  In addition, the report suggests that Cam is an active supporter of the Algerian Islamic Salvation Front and says, “His physical appearance (beard and head-gear) leave no room for doubt as to his fundamentalist convictions.”¹⁸⁶

Particular emphasis is placed on criticisms by Cam of French laws, society and authorities, as well as statements critical of integration.  The report states that Cam’s sermons “vilify the French state, Western governments and Israel, inciting the faithful to [adopt] a communal response and to [carry out] civil disobedience.  Sometimes engaging in apology of terrorism, he also relegates Muslim women to a position of inferiority.”¹⁸⁷ The report recounts statements made as far back as 1994, when for example he apparently called the interior minister “a venomous snake who wants the death of Islam in order to subjugate Muslims and integrate them into European society.”  A year later he apparently urged those gathered at Friday prayer to “revolt against the diktat of the French” and said that “France is no longer a country of freedom.” He called the French state “racist and secular” and urged the faithful to ignore the “anti-Muslim warnings made by the French government.”  He is said to have discouraged intermarriage and patronage of non-Muslim shops, to have encouraged parents to take their girls out of school if they cannot wear the headscarf (this was before the law prohibiting all religious symbols in public schools), and to have urged young students to “refuse all integration in a society that is not one of Islam.”

References to expressions that allegedly incite violence are very few and indirect.  In the mid-1990s Cam is said to have announced that he was in favor of helping “all those who fight for Islam” and to have welcomed a May 1996 attempt on the Turkish president’s life in a meeting after Friday prayer.   The report asserts that Cam “clamors for pursuing attacks and invites young people to join the ranks of the Kaplan movement in order to participate in these violent acts to support the Algerian Islamists.” 

Impact on Freedom of Expression

Human Rights Watch acknowledges that the content of the speech detailed in the cases above is deeply controversial and in some cases widely seen as offensive, and that many people in France consider measures to restrict this kind of speech to be both positive and necessary.  Nonetheless, we remain concerned that the expulsion of imams accused of preaching hatred amounts to disproportionate interference with freedom of expression. Administrative expulsion, while not a criminal sanction, is a form of very severe penalty imposed in these cases in response to instances of exercise of the freedom of expression. Indeed, it is hard to categorize it as other than a dramatic interference with an individual’s freedom to hold opinions and ability to impart and receive information.   It is worth restating the position of the European Court that the right to freedom of expression is applicable,

not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.  Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society.”¹⁸⁸

In view of the ICCPR and ICERD provisions on speech, as well as the Johannesburg Principles, Human Rights Watch believes that restrictions on the content of expression must address speech that is likely to incite violence, discrimination, or hostility against an individual or clearly defined group of persons in circumstances where this violence, discrimination, or hostility is imminent, and where alternative measures to prevent such conduct are not reasonably available. 

There is always a danger that laws that penalize speech will have a chilling effect on free expression generally, creating self-censorship and inhibiting political discourse, including criticism of the government.  This runs directly contrary to the view that public debates based on the free and unhindered dissemination of ideas and opinions are an important way of countering radicalization and promoting understanding and tolerance with the overall aim of preventing terrorism. 

Where persons deliberately and directly incite violence, discrimination, or hostility (a form of criminal behavior), the criminal justice system, with its high standard of proof, is a more appropriate response than the use of immigration powers.