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1. Source of the legal provision

Section 74.1 of the Criminal Code of the Republic of Latvia [Krimināllikums], as Amendments to the Criminal Code of the Republic of Latvia of 14 December 2023 [Grozījumi Krimināllikumā]. Available in the original language via: Likumi; <https://likumi.lv/ta/id/88966-kriminallikums>

2. Legal provision in English

Acquittal of genocide, crime against humanity, crime against peace and war crimes
  • For a person who commits public glorification of genocide, crimes against humanity, crimes against peace or war crimes or who commits public glorification, denial, acquittal or gross trivialisation of committed genocide, crimes against humanity, crimes against peace or war crimes, including genocide, crimes against humanity, crimes against peace or war crimes against the Republic of Latvia and its inhabitants committed by the USSR or Nazi Germany, the applicable punishment is deprivation of liberty for a period of up to five years or temporary deprivation of liberty, or probationary supervision, or community service, or a fine.
  • For a person who commits the same acts, if they have been committed by a group of persons or a public official, or a responsible employee of an undertaking (company) or organisation, or if they have been committed using an automated data processing system, the applicable punishment is the deprivation of liberty for a period of up to six years, with or without probationary supervision of up to three years.
 

3. Legal provision in the original language

Genocīda, nozieguma pret cilvēci, nozieguma pret mieru un kara nozieguma attaisnošana
  • Par genocīda, nozieguma pret cilvēci, nozieguma pret mieru vai kara nozieguma publisku slavināšanu vai īstenotā genocīda, nozieguma pret cilvēci, nozieguma pret mieru vai kara nozieguma, tai skaitā PSRS vai nacistiskās Vācijas īstenotā genocīda, nozieguma pret cilvēci, nozieguma pret mieru vai kara nozieguma pret Latvijas Republiku un tās iedzīvotājiem, publisku slavināšanu, noliegšanu, attaisnošanu vai rupju noniecināšanu soda ar brīvības atņemšanu uz laiku līdz pieciem gadiem vai ar īslaicīgu brīvības atņemšanu, vai ar probācijas uzraudzību, vai ar sabiedrisko darbu, vai ar naudas sodu.
  • Par tādu pašu darbību, ja to izdarījusi personu grupa vai valsts amatpersona, vai uzņēmuma (uzņēmējsabiedrības) vai organizācijas atbildīgs darbinieks vai ja tā izdarīta, izmantojot automatizētu datu apstrādes sistēmu, soda ar brīvības atņemšanu uz laiku līdz sešiem gadiem un ar probācijas uzraudzību uz laiku līdz trim gadiem vai bez tās.

4.  Key points

  • Latvia criminalised not only the denial of the Holocaust following the EU Framework Decision on Racism and Xenophobia 2008/913/JHA (hereafter ‘EU FD 2008’), but also the denial of Soviet crimes to address the growing security threat related to the intensification of Russian disinformation on historical narratives regarding former Soviet rule (and crimes) in the region.
  • Unlike Article 1 (1) c, d of the EU FD 2008, the Latvian criminal offence does not require that Holocaust denial be carried out in a manner likely to incite violence or hatred.
  • Basic sanctions for Holocaust denial may include imprisonment for up to five years, temporary deprivation of liberty, probationary supervision, community service, or a fine.
  • The main issue addressed by the Latvian denial laws is that denying the criminal foundations of the Soviet regime in the Baltic states undermines the legal continuity of these states and questions their legitimacy.
  • Relevant national jurisprudence signals mixed results, as no criminal cases regarding Holocaust denial have been initiated (though three in total regarding the denial of Soviet crimes have).

5. Background

Latvia transposed EU FD 2008 into national criminal law by adopting their respective denial legislation (Section 74.1 of the Criminal Code), which included not only the denial of Holocaust, but also the denial of Soviet crimes during their occupation of the country (1940-1941, 1944-1990). In 2009, Latvia amended its Criminal Code by introducing a completely new criminal offence in Section 74.1, which was amended in 2014 as follows: “For public glorification of genocide, crimes against humanity, crimes against peace and war crimes or public glorification, denial, acquittal or gross trivialization of committed genocide, crimes against humanity, crimes against peace and war crimes, including genocide, crimes against humanity, crimes against peace and war crimes perpetrated by the USSR or Nazi Germany against the Republic of Latvia and its inhabitants.”[1] This amendment was proposed by the Ministry of Justice during the second reading of the (then proposed) law.[2] The Ministry indicated that the provision’s purpose is to strengthen criminal liability for such crimes, and that similar aggravating features (group of persons or a public official, or a responsible employee of an undertaking (company) or organization, or if they have been committed using an automated data processing system) are already included in Section 78 of the Criminal Code (“Inciting national, ethnic and racial hatred”). The reasons for adopting this type of “denial laws” were influenced not only by the purpose of the EU FD 2008 on combating racism and xenophobia through criminal law, but also related to growing tensions in the region since the eastern EU enlargement in 2004. The main issue addressed by the Latvian denial law is that denying the criminal foundations of the Soviet regime in the Baltic states undermines the legal continuity of these states and questions their legitimacy. While rebuilding their statehoods in the 1990s, the Baltic states all legitimised themselves with reference to the period of independence between 1918 and 1940 to negate and overcome the legacy of the illegal Soviet occupation.[3] Thus, any denial of the criminality of the foundations of the Soviet regime was considered as undermining the legal continuity of the Baltic states and their legitimacy.[4] As the Soviet (and later Russian) narrative projection intensified after the 2000s regarding how the Baltic States had supposedly voluntarily joined the USSR, the Baltics started searching for other ways to minimise this subversion of their national biographies. There were many other factors, such as the debate over the ‘Bronze Soldier’ monument in Estonia in 2007,[5] the clash over the celebration of the end of Second World War in 2005 in Moscow, as well as the ban on Soviet symbols in Lithuania in 2008,[6] all of which signalled increasing hostilities. During the debate on the EU FD 2008, the Baltic countries lobbied for the policy to condemn Soviet-era crimes. However, the Council of the EU only added a declaration condemning all totalitarian atrocities to satisfy member states that wanted the EU FD 2008 to cover Stalinist crimes.[7] As Žilinskas argued, this failure to specifically condemn communist crimes  evolved “into the movement for ‘equal legal treatment’”[8] of the crimes of totalitarian regimes that culminated in the Prague Declaration of 2008 “On European Conscience and Communism”, where the signatories – famous European politicians and activists ‒ called for a just recognition of the criminal communist legacy in Europe.  Nonetheless, in 2010, the European Commission (EC) rejected a major initiative to hold Soviet crimes to the same standard as Nazi crimes.[9]

6. Application

The application of the Latvian denial law until 2022 was recently analysed by Eva-Clarita Pettai, indicating that “a number of cases involving article 74.1 have been investigated so far, yet they all ended at the pre-trial stage, which makes it difficult to draw conclusions about the Section’s ultimate legal interpretation or its effects on free speech and open historical debate”.[10] However, after 2022 there have been two criminal cases in which a person was convicted under Section 74.1 Criminal Code. In 2023, two judgments concerned statements which were related to the justification and glorification of Russia’s aggression in Ukraine.[11]  

7. Controversies

The main controversy over the denial law in Latvia, as in Lithuania, is the criminalisation of the denial of Soviet crimes, along with the denial of Holocaust. As stated by Pettai, “combating racist talk, antisemitism and other hate speech were only indirectly part of the debates surrounding this piece of legislation. In media reports that appeared in connection with criminal investigations against individuals for the potential crimes of denial or gross trivialization of Stalinist crimes, hate speech and anti-state agitation were, however, central.”[12] Another controversy is linked with the legal issues of the legal formulation of denial ban law itself and the application of the denial ban law in practise. According to Pettai, differently from the Lithuanian version, neither the 2009 law, nor its amendment of 2014 laid out the criteria under which denial was to be seen as a criminal offence – that is, whether it was done to incite hatred or to cause public disorder, as the EU FD 2008 required. Thus, even though the law was justified, at least initially, in order to transpose the EU legislation, the central criteria for defining denialism as hate speech did not appear in the final law itself. From a formal point of view, the Latvian memory law thus resembles more closely the other “anti-communist memory laws” – like those in Poland and Czech Republic – that have no built-in safeguards to balance anti-hate speech laws with rights to freedom of expression.[13] However, the concretization of such criteria can take place through judicial practice, as indicated in the summary of the case law of the Latvian Supreme Court.[14] For example, in a case involving incitement to national, ethnic and racial hatred (Section 78 of the Criminal Code) the Supreme Court explained, that, “[i]n order to decide whether the statement reaches such a degree of gravity that a person can be held criminally liable according to the second part of Section 78 of the Criminal Code for inciting national hatred or discord, the court must evaluate the intention of the speaker of the statement, the content and form of the statement, as well as the breadth of access to the statement, the duration of its availability, the social and political context in which the statements were made and disseminated, the status of the person making the statement in society, especially evaluating the influence of this person on the audience for which the statements are intended, as well as the person’s behaviour during the perpetration, and the connection with organisations that incite to hatred.”[15] Regarding case law, the problem appears to be that in the cases concerning “Soviet aggression”, the courts seem to have made a sizable effort to prove that the denial of Soviet crimes and or glorification of aggression had incited public disorder, or that they were done in a clearly insulting manner, thus justifying the limitation of the defendant’s rights to freedom of expression.[16] One of the possible explanations for such “asymmetry” with Holocaust denial cases can also be the actual situation in society, that is, doubts are much more often expressed about the commission of crimes by the USSR, while the fact that Nazi Germany committed crimes is not (as often) denied. Instead, the discussions in society arise about Latvian collaboration with the Nazis, and successive co-responsibility for the crimes committed by the Nazis.

8. Further reading

  • Karsten Brüggemann and Andres Kasekamp, ‘The Politics of History and the “War of Monuments” in Estonia’ (2008) 36(3) Nationalities Papers
  • Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR: A Study of the Tension between Normativity and Power in International Law, (Martinus Nijhoff 2003).
  • Eva-Clarita Pettai, ‘Protecting Memory or Criminalizing Dissent? Memory Laws in Lithuania and Latvia’, in Elazar Barkan and Ariella Lang (eds.), Memory Laws: Criminalizing Historical Narratives (Routledge 2022).
  • 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).
  • Division of Case-law and Research of the Supreme Court of Latvia, ‘Hate Speech And Freedom Of Speech (Court Practice In Criminal Cases On Articles 74.1, 78, 150 Of The Criminal Law: Case Law between October 2012 – May 2018’ [2018] <https://at.gov.lv/files/uploads/files/6_Judikatura/Tiesu_prakses_apkopojumi/2018/Naida%20runa%20un%20varda%20briviba_Apkopojums_2018_22_10_2018.doc> accessed 28 October 2024.
  • Memocracy Research Consortium, ‘Country Studies of the Baltic states; Germany; Poland and Hungary; Russia and Ukraine’ (MEMOCRACY Policy Briefs, 2024) <https://memocracy.eu/policy-briefs> accessed 28 October 2024.
[1] Ministry of Justice, ‘Amendments to the Criminal Code [Grozījumi Krimināllikumā]’ (State Gazette, 31 May 2014) <https://www.vestnesis.lv/op/2014/105.2> accessed 28 October 2024. [2] Ministry of Justice, ‘Proposals for the draft law “Amendments to the Criminal Law”’ (Latvian Ministry of Justice, 2014) <https://titania.saeima.lv/LIVS14/SaeimaLIVS14.nsf/0/99B230835138A272C2258A5C002713A8?OpenDocument> accessed 28 October 2024. [3] Article 42 of the 1907 Hague Regulations concerning the Laws and Customs of War on Land states that a “territory is considered occupied when it is placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised”; see further: International Committee of the Red Cross, ‘Occupation and International Humanitarian Law: Questions and Answers’ [4 August 2004] < https://www.icrc.org/en/article/occupation-international-humanitarian-law-questions> accessed 28 October 2024. [4] See Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR: A Study of the Tension between Normativity and Power in International Law (Martinus Nijhoff 2003). [5] Karsten Brüggemann and Andres Kasekamp, ‘The Politics of History and the “War of Monuments” in Estonia’ (2008) 36(3) Nationalities Papers 425; David J. Smith, ‘Woe from Stones: Commemoration, Identity Politics and Estonia’s ‘War of Monuments”’ (2008) 39(4) Journal of Baltic Studies 419; Inge Melchior and Oane Visser, ‘Voicing Past and Present Uncertainties: The Relocation of a Soviet World War II Memorial and the Politics of Memory in Estonia’ (2011) 59 Focaal 33; Steven Lee Myers, ‘Tensions Between Russia and Estonia Escalate’ (The New York Times, 2 May 2007) <http://www.nytimes.com/2007/05/02/world/europe/02cnd-russia.html> accessed 28-10-24; Martin Ehala, ‘The Bronze Soldier: Identity Threat and Maintenance in Estonia’ (2009) 40(1) Journal of Baltic Studies 139. [6] ‘Code of Administrative Offenses of the Republic of Lithuania of 2008 (Article 188-18: Distribution or display of Nazi or Communist symbols)’ (Infolex, 2015) <http://www.infolex.lt/ta/103787:str188-18>  accessed 28 October 2024. [7] 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). [8] Justinas Žilinskas, ‘Introduction of ‘Crime of Denial’ in the Lithuanian Criminal Law and First Instances of Its Application’ (2012) 19(1) Jurisprudencija 316, 319. [9] Wendy Zeldin, ‘European Union: Rejection of Eastern European States’ Call to Hold Communist Crimes to Same Standard as Nazi Crimes’ (Library of Congress, 30 December 2010) <https://www.loc.gov/law/foreign-news/article/european-union-rejection-of-eastern-european-states-call-to-hold-communist-crimes-to-same-standard-as-nazi-crimes/> accessed 28 October 2024. [10] Eva-Clarita Pettai, ‘Protecting Memory or Criminalizing Dissent? Memory Laws in Lithuania and Latvia’, in Elazar Barkan and Ariella Lang (eds.) Memory Laws: Criminalizing Historical Narratives (Routledge 2022) 188; for more on Latvian implementation of EU FD 2008, see: Latvian Centre for Human Rights ‘Franet National contribution to the Fundamental Rights Report 2021: Latvia’ (European Union Agency for Fundamental Rights, 2022) < https://fra.europa.eu/sites/default/files/fra_uploads/fundamental_rights_report_2022-_latvia_.pdf2022> accessed 28 October 2024. [11] Judgement on the behalf of Latvia, ‘Vidzeme regional court judgement ECLI:LV:VRT:2023:0216.11840001522.3.S’ (16 February 2023) <https://manas.tiesas.lv/eTiesasMvc/nolemumi/pdf/500434.pdf> accessed 28 October 2024; I. Ādamsone-Struža, ‘Rīga regional court judgement ECLI:LV:RIRT:2023:0210.11840004722.2.S’ (10 February 2023) <https://manas.tiesas.lv/eTiesasMvc/nolemumi/pdf/499891.pdf> accessed 28 October 2024. [12] Pettai (n 12) 188. [13] Pettai (n 12) 185. [14] Latvian Jurisprudence and Scientific Analytical Department, ‘Hate Speech And Freedom of Speech (Court Practice In Criminal Cases On Articles 74.1, 78, 150 Of The Criminal Law)’ (2018) <https://at.gov.lv/files/uploads/files/6_Judikatura/Tiesu_prakses_apkopojumi/2018/Naida%20runa%20un%20varda%20briviba_Apkopojums_2018_22_10_2018.doc> accessed 28 October 2024. [15] Department of Criminal Affairs, ‘Decision on case 1181700120 of 10 January 2023’ (Senate of the Republic of Latvia, 2023) <https://at.gov.lv/downloadlawfile/8850> accessed 28 October 2024. [16] Pettai (n 12) 183.
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