The Law of Holocaust Denial in Europe: Towards a (Qualified) EU-Wide Criminal Prohibition

Denial of Genocide and Crimes against Humanity in the Jurisprudence of Human Rights Monitoring Bodies

“…25 306 A. Kučs However, the Committee did not refute or at least discuss in their decision wider scholarly criticism of the Gayssot Act which was also applicable in this case (for instance, that the law does not require any proof of racist intent of the author or malice and that no evidence of a causal link between one's expressions and incitement to hatred is required, Pech 2009). The need to prove the causal link between expressions and the threats they impose on protected values, is emphasised by the HRC itself in its latest commentary on Article 19.…”

“…Therefore, one might expect that the ECtHR would provide more far-reaching scope for the freedom of expression than one can find in the case law of the HRC. However, that is far from being the case in ECtHR's jurisprudence, which has 'exercised its supervisory jurisdiction in a highly deferent manner with respect to national convictions for Holocaust denial' (Pech 2009). The Court has allowed states to apply pure content-based restrictions on such expressions by adopting the German Courts' inspired notion of holocaust as 'clearly established fact'.…”

“…38 When it comes to the assessment of the 'necessity' of restrictions in these cases, the Commission has constantly emphasised that restrictions prescribed by states should be justifiable and proportionate. However, the 'Commission's decisions reflect a Journal of Ethnic and Migration Studies 309 readiness to grant national authorities an extremely ample "margin of appreciation"' (Pech 2009), which might be explained by the inclination 'to pay due respect to the specific historical past of each country' (Pech 2009). This is evidenced by the fact that the Commission had always found the applications regarding the restrictions on Holocaust denial 'necessary in a democratic society'.…”

“…These include justice and social peace, 49 tolerance and nondiscrimination. 50 In its earlier decisions, the Commission took into account the impact of Article 17 in assessing the necessity of restrictions imposed on denial or trivialisation of Holocaust (Pech 2009). However, in view of the wide possibility for restrictions on the rights this provision entails it has avoided reliance solely on this clause in assessing the restrictions of the right to the freedom of expression.…”

“…State policy, even with best case will, is not history policy'. 56 The concept of 'clearly established facts' is also difficult to reconcile with the Courts stance in relation to other historical events, namely, that it is not the task of the Court to settle historical disputes (Pech 2009). If the Court takes a restrictive stance towards expressions denying or trivialising Nazi crimes, it would need to provide very convincing reasons to treat, for instance, the denial of crimes against humanity perpetrated by Communist regimes differently when such cases come before the Court.…”