Proporzionalità dell’intervento penale e scelte sanzionatorie: il problema dei discorsi d’odio.

The dissertation starts from the paradox of freedom of expression, a cornerstone of constitutional democracy and at the same time a factor of vulnerability, especially in the context of hate speech and denialism. Drawing on the case law of the European Court of Human Rights, a comparison with Germany, Spain, and France, and a critical analysis of the Italian framework, it shows how so-called “indirect incitement” offences are controversial due to tensions with the Italian principio di offensività and the uncertain practical robustness of reconstructions based on a “concrete danger” requirement. To move beyond the alternative between preservation and abolition, the dissertation shifts the focus from “whether to punish” to “how to punish”, treating proportionality as a standard for reviewing criminalisation choices and showing how, within that assessment, in certain contexts the type of sanction plays a decisive role. The analysis therefore turns to identifying a sanction which, by its nature and characteristics, can be regarded as proportionate to the offences in question. To this end, it examines the restorative justice paradigm as recently introduced into the Italian legal system, ultimately advancing a de iure condendo proposal drawing on the field of substitute sanctions.