1. Source of the legal provision[1]
Section 405 of the Criminal Code of 2009 [Trestní Zákoník]
Available in the original language via Codexis: <https://next.codexis.cz/legislativa/CR17044_2024_04_01>
2. Legal provision in English
Denying, questioning, approving and justifying genocide
Whoever publicly denies, questions, approves or tries to justify Nazi, communist or other genocides, or Nazi, communist or other crimes against humanity or war crimes or crimes against peace shall be punished by imprisonment for six months to three years.
3. Legal provision in the original language
Popírání, zpochybňování, schvalování a ospravedlňování genocidia
Kdo veřejně popírá, zpochybňuje, schvaluje nebo se snaží ospravedlnit nacistické, komunistické nebo jiné genocidium nebo nacistické, komunistické nebo jiné zločiny proti lidskosti nebo válečné zločiny nebo zločiny proti míru, bude potrestán odnětím svobody na šest měsíců až tři léta.
4. Key points
- In 2001, several years prior to the adoption of the EU Framework Decision on Racism and Xenophobia 2008/913/JHA (hereafter ‘EU FD 2008’), the Czech Republic criminalised not only Holocaust denial, but also the denial of communist and other genocides.
- The Czech denial ban provision neither requires any incitement to hatred or likely disturbance of the public peace, nor any recognition of the historical crime by a court.
- These offences are punishable by imprisonment for a term ranging from six months to three years.
- In addition to crimes committed by the Nazi and communist regimes, the genocide against the Roma is also a significant topic of public discourse in the Czech Republic.
- So far, the case law has been more focused on the investigation of communist crimes themselves than their denial under the law of 2001. Still, there have been several cases of Holocaust denial after 2001.
5. Background
The Czech Republic was among the first countries in CEE to criminalise both the denial of the Holocaust and the Soviet crimes as soon as 2001, significantly before required to do so by the EU FD 2008. The provision was adopted in the “context of an increasing dissemination of denial statements linked to ultra-right groups and movements”[2] The history of the 2001 reform can be traced back to the Criminal Code of 1961. This code already criminalised the defamation of any nation, race and belief in Sections 198, the act of genocide in Section 259, and the support and propagation of fascism and similar movements proclaiming national, racial and religious hatred in Section 260, and the public condoning of said movements in Section 261.[3]
The 1961 Criminal Code continued to be valid even after the fall of communism in 1989, although it was amended multiple times. Moreover, the debate over the 2001 reform[4] was taking place at a time where the only unreformed communist party in Central and Eastern Europe (CEE) – the Communist Party of Bohemia and Moravia (KSČM), which had registered in 1990 as a territorial branch of the old Communist Party of Czechoslovakia (KSČ) – was still represented in both houses of Parliament, and an important player on and behind the scenes in Czech politics, including in the election of the President of the country. The KSČM only dropped out of Parliament following defeat in the elections in 2021. In general, the social democrats (ČSSD) were also not keen on discussing communist crimes, and were opposed to the establishment of new memory institutions. They too, once a dominant party in the country, also dropped out of Parliament in 2021.
6. Application
A small but persistent and fairly well-organised extreme right-wing movement with antisemitic views emerged in the Czech Republic in the 1990s, and authorities thus pursued Holocaust-denial investigations and prosecutions. The first criminal case was initiated in 2001, when a Prague publisher released a Czech translation of Adolf Hitler’s “Mein Kampf”.[5] The publisher, Michal Zitko, was charged with disseminating Nazi propaganda and faced up to eight years in prison.[6] Although the publisher initially landed a conditional sentence, he was ultimately acquitted due to lack of evidence before the Supreme Court in March 2005.[7]
According to a briefing by the European Council of January 2022, Section 405 of the Criminal Code has recently been evoked in the context of the Nazi genocide against Roma and Sinti, and there has been renewed efforts to create a memorial for these victims at the location of a former “Roma camp” in Lety near Písek.[8] Lety is the most prominent site of memory related to Czech-Romani history, which is why the pig farm that was built on this public space has become a symbol for failed memory politics and anti-Romani sentiments in Czech society.[9] The Czech Republic was singled out in a European Parliament resolution for failing to remove the pig farm and create “a graceful memorial” to honour victims of the Romani Holocaust.[10]
Special attention was given to investigate communist crimes, rather than focusing on their denial under the reform of 2001. This was not without precedent. A special Office for the Documentation and Investigation of Communist Crimes of the Police of the Czech Republic (ÚDV) was established in 1995, and it has successfully led to about 70 final court verdicts according to their most recent published data.[11] Investigation responsibilities enable the ÚDV to expose and to prosecute criminal acts from the period of 1948-1989.
Moreover, in 2019, the last Secretary General of the KSČ, Milouš Jakeš, the last prime minister of the Czechoslovak Socialist Republic (ČSSR), Lubomír Štrougal, and one of the last ministers of the Interior, Vratislav Vajnar, were accused by the Czech prosecutors of the killing of fleeing civilians from the Iron Curtain in the ČSSR.[12] The first two passed away before their trials begun, whereas the latter passed away in 2023 before sentencing. In June 2024, a trial was opened against another perpetrator in the line of command, Jan Muzikář, a top former commander of the border guards of the ČSSR.[13]
7. Controversies
The first controversy is related to the absence of distinction between communist crimes and the Holocaust. The ‘denial laws’ in the Czech Republic were adopted after presenting various arguments such as “the need to protect the ‘historical truth’ and ‘freedom’, or to secure the dignity of the victims, survivors and their descendants”.[14] A key debate took place around the proposal of Jiří Payne, a member of parliament, who argued the need to protect freedom from extremist political powers and to limit the spread of hatred and intolerance.[15] However, the adoption of the “denial laws” lacked the distinction between Nazi and communist crimes. Some experts, like Professor of law Zdeněk Jičínský, objected to the inclusion of the crimes of Nazism and communism at the same level, arguing that, while Nazis were definitively “directed towards liquidation of the Czech nation”, many Czechs were helping communism, so in the latter case “determining the border between us and them, between initiators and perpetrators, seduced, frightened and totally innocent is extremely difficult and usually it results in smaller or greater alibismus, in efforts to hide one’s own part of responsibility”. Hence, his argument appealed to the responsibility of Czechs for communist crimes, as opposed to Nazi crimes. In addition, in 2008, the Czech government initiated “The Prague Declaration on European Conscience and Communism”, calling for “Europe-wide condemnation of, and education about, the crimes of communism.”[16]
The second controversy involves political challenges for memory institutions, in particular, the Institute for the Study of Totalitarian Regimes (ÚSTR) – which was established in 2007 and carries out academic research into two periods in the modern history of Czechoslovakia: the period of Nazi occupation in 1939-1945 and the period of communist rule in 1948-1989.[17] The Institute has been criticised for being too political, as its members allegedly “became primarily ideological tools of the new governing post-communist elites that served to centralise control of the collective ‘national’ memory.”[18] Broadly, the newly established memory institutions are under pressure from the political left and former communist structures, which also leads to internal conflicts over leadership, and the streamlining of these institutions. These institutions include not only the ÚSTR, but also the Security Services Archive (ABS),[19] and the 20th Century Museum in Prague.[20]
The third controversy is linked with the memory of the crimes against Roma minorities during the Second World War, when 95 percent of the Roma population in the Czech Republic were killed.[21] In the Czech Republic, this genocide has been recognized under the terms “Roma Holocaust”, “Holocaust of the Roma” or “Genocide of the Roma”.[22] Sometimes referred to as the “Forgotten Holocaust,” the Roma Genocide was excluded from the history of the Second World War for decades after its end. There were no Roma witnesses at the Nuremberg Trials.[23] The lack of recognition of the crime reflects the long-standing discrimination against Roma people in Europe. The Roma genocide is a subject that is still readily neglected by Czechs.
8. Further reading
- Laurent Pech, ‘The Law of Holocaust Denial in Europe’, in Ludovic Hennebel and Thomas Hochmann (eds), Genocide Denials and the Law (Oxford University Press 2011).
- Max Steuer, ‘The (Non)Political Taboo: Why Democracies Ban Holocaust Denial’ (2017) 49(6) Sociológia
- Jakub Drápal, Defending Nazis in Postwar Czechoslovakia: The Life of K. Resler, Defence Counsel ex officio of K. H. Frank (Karolinum Press 2018).
- Roman David, Communists and their Victims: The Quest for Justice in the Czech Republic (University of Pennsylvania Press 2018).
- Jiří Přibáň, ‘Politics of Public Knowledge in Dealing with the Past: Post-Communist Experiences and Some Lessons from the Czech Republic’ in Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (eds.) Law and Memory: Towards Legal Governance of History (Cambridge University Press 2017) 195.
- Tomas Sniegon, ‘Implementing post-communist national memory in the Czech Republic and Slovakia’ in Conny Mithander, John Sundholm and Adrian Velicu (eds.) European Cultural Memory Post-89 (Brill 2013).
- Nadya Nedelsky, ‘Divergent Responses to a Common Past: Transitional Justice in the Czech Republic and Slovakia’ (2004) 33(1) Theory and Society
- Nadya Nedelsky, ‘Czechoslovakia, and the Czech and Slovak Republics’, in Lavina Stan (ed.) Transitional Justice in Eastern Europe and the Former Soviet Union: Reckoning with the Communist Past (Routledge, 2009).
[1] Special thanks for Dr. Neela Winkelmann for clarifying crucial issues covered in this entry.
[2] Piotr Bąkowski, ‘Holocaust denial in Criminal law: Legal frameworks in selected EU Member States’ (European Parliament Research Service (EPRS), 2022) <https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698043/EPRS_BRI(2021)698043_EN.pdf> accessed 28 October 2024.
[3] Section 261. Who publicly shows sympathy for fascism or for another similar movement mentioned in Section 260 will sentenced to imprisonment for six months: National Assembly of the Czechoslovak Socialist Republic, ‘Criminal Code’ (National Gazette, 8 December 1961) <https://www.ustrcr.cz/data/pdf/projekty/usmrceni-hranice/dokumenty/zakon140-1961.pdf> accessed 28 October 2024.
[4] Parliament of the Czech Republic ‘Law of 25 October 2000 amending Act No. 140/1961 Coll Criminal Code, as amended’ (Collection of Laws [Zakony Pro Lidi], 01 December 2000) <https://www.zakonyprolidi.cz/cs/2000-405> accessed 28 October 2024.
[5] Jan Richter, ‘Czech court clears publishers of Hitler speeches’ (Radio Prague International, 09 November 2014) <https://english.radio.cz/czech-court-clears-publishers-hitler-speeches-8284285> accessed 28 October 2024.
[6] Kate Connolly, ‘Czechs try to ban Hitler’s book’ (The Guardian, 16 June 2000) <https://www.theguardian.com/world/2000/jun/16/books.booksnews> accessed 28 October 2024.
[7] CTK, ‘Czech Supreme Court overturns acquittal on publication of Hitler’s speeches, wants more evidence’ (Romea, 07 July 2018) <https://romea.cz/en/czech-republic/czech-supreme-court-overturns-acquittal-on-publication-of-hitler-s-speeches-wants-more-evidence#google_vignette> accessed 28 October 2024.
[8] Bąkowski (n 3).
[9] Jiří Smlsal ‘The Stench of Pigs and the Authority of Historians: Czech Debates About the Lety Concentration Camp’ (Cultures of History Forum, 25 January 2022) <https://www.cultures-of-history.uni-jena.de/czech-republic/czech-debates-about-the-lety-concentration-camp> accessed 28 October 2024.
[10] Brian Kenety ‘Lety u Pisku: The politics behind the ‘concentration camp’ pig farm’ (Radio Prague International, 19 May 2005) <https://english.radio.cz/lety-u-pisku-politics-behind-concentration-camp-pig-farm-8099096> accessed 28 October 2024.
[11] Czech Republic Police, ‘The Office for the Documentation and the Investigation of the Crimes of Communism Police of the Czech Republic’ [2024] (<https://www.policie.cz/clanek/the-office-for-the-documentation-and-the-investigation-of-the-crimes-of-communism-police-of-the-czech-republic.aspx> accessed 28 October 2024.
[12] The Associated Press, ‘3 former top Czech communist face misuse of power charges’ (AP News, 26 November 2019) <https://apnews.com/general-news-40b1e2dac20b43cdb2fa3fa36bc640ab> accessed 28 October 2024.
[13] Daniela Lazarová ‘Former communist border patrol chief denies responsibility for killings’ (Radio Prague International, 12 June 2024) <https://english.radio.cz/former-communist-border-patrol-chief-denies-responsibility-killings-8819735> accessed 28 October 2024.
[14] Max Steuer, ‘The (Non)Political Taboo: Why Democracies Ban Holocaust Denial’ (2017) 49(6) Sociológia 673.
[15] Ibid, 682.
[16] Radio Free Europe ‘Interview: How Much Do Western Europeans Know About Communist Crimes?’ (Radio Liberty, 13 October 2011)
https://www.rferl.org/a/interview_how_much_does_west_know_about_communist_crimes/24358883.html> accessed 28 October 2024.
[17] Institute for the Study of Totalitarian Regimes, ‘About Us’ [2024] <https://www.ustrcr.cz/en/about-us/> accessed 28 October 2024.
[18] Tomas Sniegon, ‘Implementing post-communist national memory in the Czech Republic and Slovakia’ in Conny Mithander, John Sundholm and Adrian Velicu (eds.) European Cultural Memory Post-89 (Brill 2013).
[19] Security Services Archive, ‘About us’ (Institute for the Study of Totalitarian Regimes, 14 February 2013) <http://old.abscr.cz/en/the-archive-of-security-forces> accessed 28 October 2024.
[20] Twentieth Century Museum, ‘Homepage’ [2024] <https://www.muzeum20stoleti.cz/en/> accessed 28 October 2024.
[21] Michael Longaro, ‘Czechs discuss holocaust denial at public forum’ (Radio Prague International, 24 May 2006) <https://english.radio.cz/czechs-discuss-holocaust-denial-public-forum-8619499> accessed 28 October 2024.
[22] Council of Europe, ‘Czech Republic – Recognition of the Roma Genocide’ [2024] <https://www.coe.int/en/web/roma-genocide/virtual-library/-/asset_publisher/M35KN9VVoZTe/content/cyprus-recognition-of-the-genocide, https://www.coe.int/en/web/roma-genocide/czech-republic> accessed 28 October 2024.
[23] Margareta Matache, Gabriela Ghindea and Matei Demetrescu, ‘The Roma Holocaust/Roma Genocide in Southeastern Europe: Between Oblivion, Acknowledgment, and Distortion’ (The Auschwitz Institute for the Prevention of Genocide and Mass Atrocities and the Roma Program at the François-Xavier Bagnoud Center for Health and Human Rights, Harvard University 2022) <https://fxb.harvard.edu/wp-content/uploads/sites/2464/2022/11/The-Roma-Holocaust-Roma-Genocide-in-Southeastern-Europe-Report-1.pdf> accessed 28 October 2024.