Política criminal y tipificación de la ciberdelincuencia terrorista en relación con la protección del orden público y el sistema constitucional

Abstract

I have dedicated this thesis to the study and critical assessment of the complex phenomenon of terrorism and the cybercrime associated with it. I develop this task in order to reason the essential criminological features of terrorism, verifying the institutional treatment given to it internationally and in Spain, as well as putting forward proposals for improvement on the current state of the issue in the criminal law and political-criminal sphere. The criminological conceptualisation of terrorism that I address in the first two chapters of this work focuses on delimiting the most relevant characteristics and contributing factors with respect to terrorism from different perspectives, such as historical, socio-political, cultural, communicative and psychological. I firstly study the historical development of this violence, showing how terrorism has manifested itself cyclically in "waves" since its emergence at the end of the 19th century, and analysing the different characteristics of each of the four waves and the institutional reaction to it, including that which has arisen in Spain. After that, I analyse the need for a material basis for the anti-terrorist law is developed, founded in reasons that pre-exist the criminal law itself. To this end, I have justified the figure of the legally protected object as an instrument for the material basis of the criminal law, founded on human rights framework. On this basis, I assert the need of a criminological definition of terrorism in order to verify whether any of its features have a genuine plus of material unlawfulness. I identify the criminological definition of terrorism as acts of serious violence that incorporate the conditional threat of repetition if the threatened disobey the change in the socio-political status quo demanded by the perpetrators, who harness the fear generated in society to achieve coercively what they require. The additional unlawfulness that would justify criminal intervention beyond serious violence would lie in the coercive terrorisation, which harms the legally protected objects of public peace and freedom of political decision and its public demonstration. I have substantiated these legally protected objects carefully in accordance with the human rights framework, rejecting the relevance of public order as a legally protected object in this area. The last chapter assesses the framework of terrorist crimes in Spain, critically comparing it with the previous conceptual proposals. The overall assessment is negative; insofar Spanish criminal law accumulates different grounds for incrimination without a solid foundation beyond symbolic and populist interests, given that the law lacks a substantive and nuclear definition of terrorism on which to base the different types of offences. These offences allow an exacerbated advance of the punishment of conduct prior to criminal preparation, establishing very high penalties. This conceptual vacuum hampers the criminalisation of terrorist cybercrime, which also lacks legal definition of its own. I have therefore concluded that serious violence in physical space must take place alongside cybercrime in order to consider this last offence in the criminal framework of strict terrorism, despite the fact that the Spanish criminal law incriminates innocuous actions through ICTs as autonomous acts of terrorism. For all these reasons, I consider that a legal reform of these offences is necessary to allow the guarantees and rights that have been jeopardised to survive. To this end, I have reasoned to introduce a legal definition of terrorism based on the criminological features set out above, and to configure criminal offences only through a relationship of offensiveness with respect to the legally protected object that justifies this criminalization. Finally, I propose strategies for the elimination of group and contact prejudices for a more useful political-criminal approach to counter-terrorism prevention.