Criminalizing Holocaust denial in the EU: Compendium on 27 Member States

Introduction

1) Aims, content and structure of the compendium

The compendium Criminalizing Holocaust Denial in the EU collects, translates to English and provides an overview on the current state of criminal Holocaust denial legislation of all 27 Member States. Being the first endeavor of this kind, the compendium pursues primarily four goals: first, it aims to provide an EU-wide comprehensive empirical basis for further comparative research on Holocaust denial bans and memory laws^[1] more generally. The compendium is therefore kept deliberately descriptive. Second, it seeks to inform policy makers at the national and EU level about the existing rules in (other) EU Member States and their application. This is particularly relevant since Article 1 (1) (d) of the EU Framework Decision on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal law (2008/913/JHA) [‘EU FD 2008’] obliges Member States to criminalise, under certain conditions, the condoning, denial or gross trivialisation of the Holocaust. Thus, the compendium serves as a source of inspiration for national policy regarding possible regulatory techniques of denial bans. It also helps EU policy makers to assess to what extent states have implemented the EU FD 2008 regarding Holocaust denial. Thirdly, it seeks to broaden legal practitioners’ and the general public’s knowledge about Holocaust denial legislation, which is crucial for a critical and informed discourse about memory politics and law within the EU space.^[2] With its linkage to public education about the Holocaust as such, the compendium finally aims to contribute to providing a basis for a world in which memory laws such as Holocaust denial bans may no longer be necessary.

Holocaust denial bans have been selected as comparative material as they are the earliest and clearest examples of modern memory laws and have served as a blueprint for other forms of mnemonic governance. Moreover, they exist, even if not always explicitly codified as a separate crime, in all Member States and are usually clearly identifiable as such. Still, the country entries also include references to denial bans regarding other crimes of genocide, crimes against humanity or war crimes where they are intrinsically linked to the Holocaust denial provision.

The country entries are structured as follows: they contain the source where the relevant criminal Holocaust denial provision can be found, the text of the provision in English and in the original language, a short summary of the most relevant specificities of the country (“key points”), the background of the provision, its application in the case law, the controversies surrounding the legislation and the selected references for further reading.

2) Target groups

The compendium addresses a wide range of stakeholders involved in the discourse about memory politics and law, including academics, national and international policy makers, practitioners, but also the general public that seeks more information on Holocaust denial legislation across the EU.

3) Methodology

The compendium entries rely on a variety of sources. They include, in particular, the relevant national laws, parliamentary debates and other parliamentary documents, other official state information, the 2014 European Commission Report on the implementation of the EU FD 2008,^[3] European Commission information on infringement procedures for non-implementation of the EU FD 2008, national case laws, secondary literature, output by NGOs or thinktanks, and relevant media coverage. Where we encountered language barriers and/or were not fully able to assess the relevant information ourselves, national experts (scholars, state agents, or NGOs) were consulted.

In countries the language of which was not represented in our team (BG, CZ, CY, DK, EE, EL, HR, LV, RO, SI, SK, FI, SE) and where no official English translation of the relevant legal provisions existed, translations were made with the assistance of DeepL.

4) About the authors

The compendium is the result of the first phase of the research project “Mnemonic Reality: Investigating Memory Laws’ Impact on Reality and Reality’s Impact on Memory Laws”, funded by the Germany-based Volkswagen Foundation (2023-2025). The interdisciplinary team consists of nine young researchers from the Academy of European Human Rights Protection of the University of Cologne (Germany), the Centre for Global Studies of the Open University in Lisbon (Portugal), and Mykolas Romeris University in Vilnius (Lithuania) of various European nationalities (German, Italian, Lithuanian, Portuguese, and Polish) and with backgrounds in law, historical science and sociology.

^[1] Cf. “Memory laws enshrine state-approved interpretations of crucial historical events and promote certain narratives about the past“, Council of Europe, Factsheet ‘Memory Laws and Freedom of Expression’, July 2018.
^[2] A recent UNESCO study has found an alarming extent of Holocaust denial and distortion, ‘History Under Attack: Holocaust Denial and Distortion on Social Media’, Report of 13 July 2022.
^[3] COM(2014) 27 final.