1. Source of the legal provision

Article 1702 ofof the Criminal Code of the Republic of Lithuania [Lietuvos Respublikos baudžiamasis kodeksas], as amended by Baudžiamojo kodekso 60, 129, 135, 138, 169, 170, 1701 ir 1702 straipsnių pakeitimo įstatymas 2022 04 28 [Law on the Amendment of Articles 60, 129, 135, 138, 169, 170, 1701 and 1702 of the Criminal Code of the Republic of Lithuania of 28 April 2022] Available in the original language via Infolex; <https://www.infolex.lt/portal/start_ta.asp?act=doc&fr=pop&doc=66150>

2. Legal provision in English

Public approval of international crimes, crimes committed by the USSR or Nazi Germany, their denial, or gross minimization
  • A person who publicly approved genocide or other crimes against humanity or war crimes recognized by the legal acts of the Republic of Lithuania or the European Union or by final decisions of the Republic of Lithuania or international courts, denied them, or grossly belittled them—if this was done in a threatening, offensive, or insulting manner, or if public order was disturbed or could have been disturbed—as well as a person who publicly approved the aggression committed by the USSR or Nazi Germany against the Republic of Lithuania, the genocide or other crimes against humanity or war crimes committed by the USSR or Nazi Germany, or other grave or particularly grave crimes committed in 1990–1991 by persons who carried out or participated in aggression against the Republic of Lithuania, denied them, or grossly belittled them—if this was done in a threatening, offensive, or insulting manner, or if public order was disturbed or could have been disturbed—shall be punished by a fine, restriction of liberty, arrest, or imprisonment for up to two years.
  • A legal person is also responsible for the acts provided for in this article.

3. Legal provision in the original language

Viešas pritarimas tarptautiniams nusikaltimams, SSRS ar nacistinės Vokietijos nusikaltimams, jų neigimas ar šiurkštus menkinimas
  • Tas, kas viešai pritarė Lietuvos Respublikos ar Europos Sąjungos teisės aktais arba įsiteisėjusiais Lietuvos Respublikos ar tarptautinių teismų sprendimais pripažintiems genocido ar kitiems nusikaltimams žmoniškumui arba karo nusikaltimams, juos neigė ar šiurkščiai menkino, jeigu tai padaryta grasinančiu, užgauliu ar įžeidžiančiu būdu arba dėl to buvo sutrikdyta ar galėjo būti sutrikdyta viešoji tvarka, taip pat tas, kas viešai pritarė SSRS ar nacistinės Vokietijos įvykdytai agresijai prieš Lietuvos Respubliką, SSRS ar nacistinės Vokietijos įvykdytiems genocido ar kitiems nusikaltimams žmoniškumui arba karo nusikaltimams, arba 1990–1991 metais įvykdytiems kitiems agresiją prieš Lietuvos Respubliką vykdžiusių ar joje dalyvavusių asmenų labai sunkiems ar sunkiems nusikaltimams Lietuvos Respublikai arba labai sunkiems nusikaltimams Lietuvos Respublikos gyventojams, juos neigė ar šiurkščiai menkino, jeigu tai padaryta grasinančiu, užgauliu ar įžeidžiančiu būdu arba dėl to buvo sutrikdyta ar galėjo būti sutrikdyta viešoji tvarka, baudžiamas bauda arba laisvės apribojimu, arba areštu, arba laisvės atėmimu iki dvejų metų.
  • Už šiame straipsnyje numatytas veikas atsako ir juridinis asmuo.

4. Key points

  • Lithuania criminalised not only the denial of the Holocaust following EU Framework Decision on Racism and Xenophobia 2008/913/JHA (hereafter ‘EU FD 2008’), but also the denial of Soviet crimes to address growing security threats related to an intensifying Russian disinformation regarding historical narratives about the former Soviet regime (and crimes) in the region.
  • This conduct is criminalised if carried out in a threatening, offensive, or insulting manner, or if it disturbs, or could disturb, public order.
  • Holocaust denial may be punished by a fine, restriction of liberty, arrest, or imprisonment for up to two years.
  • The main dilemma addressed by the Lithuanian 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 in criminal cases concerning denial regulation – particularly regarding Soviet crimes, where courts justified limiting freedom of expression more often than in the cases of Holocaust denial.
  • Lithuanian criminal legislation faced an EU infringement procedure for failing to implement EU FD 2008, which was solved in 2022.

5. Background

Lithuania transposed the EU FD 2008 into national criminal law in 2010 by adopting their respective denial legislation, which included not only the denial of Holocaust, but also the denial of Soviet crimes during the occupations (1940-1941, 1944-1990). The reasons for adopting this type of ‘denial laws’ were influenced not only by the purpose of the EU FD 2008, but also related to the growing tensions in the region since the eastern EU enlargement in 2004. The main dilemma addressed by the Lithuanian 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 Soviet occupation.[1] 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.[2] As the Soviet (and later Russian) narrative intensified after the 2000s about 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,[3] the clash over the celebration of the end of the Second World War in 2005 in Moscow, as well as the ban on Soviet symbols in Lithuania in 2008,[4] 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 non-binding declaration condemning all totalitarian atrocities to satisfy member states that wanted the EU FD 2008 to cover Stalinist crimes.[5] As Žilinskas argued, this failure to specifically condemn communist crimes evolved “into a movement for equal legal treatment”[6] 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.[7] The implementation of the EU FD 2008 in Lithuania also faced some challenges. In 2021, the EC notified the Lithuanian Ministry of Justice of infringement procedures for failing to transpose and implement the EU FD 2008.[8] According to the notification, Lithuanian regulations failed to adequately transpose Article 1(c) and (d) and Article 2(1) of the EU FD 2008 for two reasons. First, the scope of behaviour that was criminalised by Article 1702 Criminal Code in its earlier version was not as comprehensive as the EU FD 2008 instructed. Criminal liability for permission, rejection, or excessive denigration under Article 1702 of the Criminal Code applied only if public order was interrupted (not if it may have been). Second, the earlier Article 1702 Criminal Code limited criminal liability to offenses committed on Lithuanian territory or against Lithuanian residents, while the EU FD 2008 did not.[9] In April 2022, an amended version of Article 1702 Criminal Code was adopted to be fully in line with the EU FD 2008.[10]

6. Application

As the laws criminalising denial are quite new in the Baltics, there are only a few domestic cases in Lithuania, none of which have reached the ECtHR at the time of writing. In 2016, a national court acquitted the local council member named Raimondas Pankevičius of the charge that, at a meeting of the Panevėžys City Council, he publicly denied the Holocaust in a speech.[11] In 2011 Petras Stankeras, a Lithuanian amateur historian, was accused of denying the Holocaust and promoting antisemitic views, but these charges were also later dismissed.[12] However, in 2019, a Lithuanian publisher, Povilas Masiulionis, was found guilty of producing a book that contradicted the official historical account of the events of 13 January 1991, where Soviet troops killed 13 unarmed civilians.[13] Furthermore, politician Viačeslav Titov was convicted for his statements about general Adolfas Ramanauskas-Vanagas, who was a leader of Lithuanian partisans in their war against the USSR.[14] None of these convictions, to our knowledge, have been appealed. In 2018 the Lithuanian Supreme Court reversed a conviction for denying Soviet crimes by Jurijus Subotinas (who commented on social media about the Soviet past), as the Court found that: “Article 1702 Criminal Code does not apply because the content of the comment under review is insufficiently detailed and informative to warrant criminal liability. Notably, in establishing criminal liability for acts that may be construed as one form or another of abuse of the right to freedom of expression, it is necessary not only to consider the practice of the ECtHR in interpreting Article 10 of the [European] Convention [on Human Rights], but also to adhere to the standards for establishing personal guilt applied in criminal justice: to establish both objective and subjective elements of the criminal offense, to adhere to the presumption of innocence, and to establish both objective and subjective elements of the criminal offense.”[15] The most recent case involving Article 1702 of the Criminal Code involves charges against a Member of Parliament, Remigijus Žemaitaitis, for an antisemitic statement on his Facebook account in 2023 which triggered not only criminal investigations,[16] but also led to investigating the constitutional viability of an impeachment procedure in 2024.[17] In April 2024, the Constitutional Court ruled that Žemaitaitis had broken his oath of office and grossly violated the constitution with his statements about Jewish people.[18] Anticipating a vote by lawmakers on stripping him of his mandate, he stepped down voluntarily. A person removed from the Seimas [Lithuanian Parliament] through impeachment for a serious violation of the constitution or for breaking their oath of office is banned from standing for election to any office with an oath for ten years. However, Žemaitaitis will avoid this ban given that he opted to resign.[19] He has appealed to the European Court of Human Rights (ECtHR) against the impeachment proceedings against him in the Lithuanian parliament.[20] Moreover, during the summer he started a new party named “Nemuno Aušra” [Nemunas Dawn] for the upcoming Parliamentary elections in October 2024. This election was very successful for his party, and before the second tour in October 27, this Party became a kingmaker in the formation of a ruling coalition for the next 4 years.[21] The party now holds 3 of the 14 ministerial portfolios in the government, including justice minister, after taking third place in the election with 15% of the popular vote and 20 seats from 141 at the Parliament. In December 2024 the newly elected Parliament voted to strip Žemaitaitis of immunity, allowing a trial to proceed on criminal charges. The criminal case was investigated in the open hearings in January 2025 and the verdict is expected later this year.

7. Controversies

The main controversy over denial laws in Lithuania, as in Latvia, is the criminalisation of the denial of Soviet crimes alongside the denial of the Holocaust. As argued by Grażyna Baranowska and Aleksandra Gliszczyńska-Grabias, the problem is not that they view fascism and communism as two equally criminal regimes – which is understandable given the historical experience of these countries – but that they blame others (Nazi Germany and the USSR) for historical injustices, victimise the past for nation-states’ sake, and use history for nationalist mobilisation. The EU promoted memory rules in Western Europe to achieve the opposite. In this way, certain memory laws, while officially serving as a guarantee for accessing historical truth, led to its deformation. Consequently, an ‘alternative’ truth, based on the will of the legislators, is being imposed.[22] As some scholars argue, in practice, the Lithuanian memory law does not protect minorities and instead validates the views of the majority population, protecting it against certain historical reinterpretations.[23] Secondly, the intense legal debate over denial laws in Lithuania focused on the problem of freedom of speech and even freedom of thought – and for this reason, the first proposal of a legal regulation in 2009 was dropped.[24] After further discussions, the legal provision was finally adopted in 2010.[25] However, as Professor Justinas Žilinskas has pointed out: “The first instances show the narrow approach, misunderstanding of the purpose of the crime and confusion of arguments”.[26] Relevant national jurisprudence also signals mixed results in the criminal cases under denial regulation. There have been five criminal cases so far, in which one person was acquitted for Holocaust denial, and one case was dismissed. In the remaining three cases, which related to the denial of Soviet crimes, two persons were found guilty, and one was acquitted. As stated by Pettai, “in the ‘Soviet aggression’ cases, the courts seem to have made quite an effort to prove that the denial of Soviet crimes and or glorification of aggression had incited to 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”.[27] Lastly, new legal developments emerged following Russia’s full-scale invasion of Ukraine in 2022, leading to the inclusion of a new dimension in a draft law that aims to criminalize public approval, denial, or gross minimization of international crimes, including genocide and war crimes committed by the USSR, Nazi Germany, and the Russian Federation against Lithuania and Ukraine. Those found guilty of such offenses could face penalties ranging from fines and restrictions on liberty to arrest or imprisonment for up to two years, particularly if their actions threaten public order. The draft law also holds legal entities accountable and, despite being under consideration for two years, has not yet sparked public debate or discussion.[28] It seems that the judicial verdicts in the criminal case of the Lithuanian member of parliament – Žemaitaitis – both before national courts and the ECtHR will be observed closely by the international community to indicate where Lithuania stands on this front.[29]

8. Further reading

  • Karsten Brüggemann, 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).
  • 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 28-10-24.
[1] 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. [2] 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). [3] 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. [4] 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. [5] 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) <https://doi.org/10.1093/acprof:oso/9780199738922.003.0007>. [6] Justinas Žilinskas, ‘Introduction of ‘Crime of Denial’ in the Lithuanian Criminal Law and First Instances of Its Application’ (2012) 19(1) Jurisprudencija 316, 319. [7] 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. [8] EU Newsroom ‘Commission Calls on Greece, the Netherlands and Lithuania to Fully Transpose EU Law Criminalising Hate Speech and Hate Crimes’ (European Commission, 9 June 2021 <https://ec.europa.eu/newsroom/just/items/713873/en> accessed 28 October 2024. [9] Parliament of the Republic of Lithuania, ‘Explanatory Note on The Draft Law Amending Articles 60, 129, 135, 138, 169, 170, 170(1) and 170(2) of The Criminal Code of the Republic of Lithuania’ (2021) <https://e-seimasx.lrs.lt/portal/legalAct/lt/TAP/d6b9afd21c4411ecad9fbbf5f006237b?jfwid=-gucsndw5w>. [10] For the amended version, see the text of current Article 1702 in the above section ‘2. Legal provision in English’. [11] BNS, ‘Former Panevėžys Councillor Acquitted of Genocide Denial’ (Kauno diena, 3 November 2016) <https://kauno.diena.lt/naujienos/kriminalai/nusikaltimai/buves-panevezio-tarybos-narys-isteisintas-del-genocido-neigimo-779891> accessed 28 October 2024. [12] BNS, ‘Investigation into Peter Stanker Is Closed after Finding No Evidence of a Crime’ (15min, 3 March 2011)  <https://www.15min.lt/naujiena/aktualu/istorija/ikiteisminis-tyrimas-del-petro-stankero-nutrauktas-neradus-nusikaltimo-pozymiu-582-140277> accessed 28 October 2024. [13] Vilnius City District Court, ‘Judgement of 18 February 2019, in the Case No. 1-61-908/2019, Trial No. 1-01-2-00009-2017-3’ (Liteko: Lithuanian Courts ’Information System, 2019) <https://liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=7f0e2658-4420-4a42-aa67-e21572bbd5d7> accessed 28 October 2024. [14] Klaipeda District Court, Judgement of 14 May 2019, in the Case No. 1-253-659/2019’  (14 May 2019) <https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.atviraklaipeda.lt%2Fwp-content%2Fuploads%2F2019-05-14nuasmenintasnuosprendisbyloje1-253-659-2019.docx&wdOrigin=BROWSELINK> accessed 28 October 2024. [15] Supreme Court of Lithuania, ‘Judgement of 6 November 2018, in the Case No. 2K-293-788/2018’ (Liteko: Lithuanian Courts ’Information System, 11 Novmber 2018) ,<https://liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=6cce3fcc-46f9-493d-b0aa-fd10b2e575a9> accessed 28 October 2024. [16] BNS, ‘Lithuanian MP’s post about Israel draws condemnation as anti-Semitic’(Lrt.lt, 09 May 2023) <https://www.lrt.lt/en/news-in-english/19/1984809/lithuanian-mp-s-post-about-israel-draws-condemnation-as-anti-semitic> accessed 28 October 2024. [17]Constitutional Court of the Republic of Lithuania, The inquiry of the Seimas [Parliament] whether the actions of the member of the Seimas, Remigius Žemaitaitis, violates the Constitution was accepted for examination.’ (CCL Newsroom, 07 December 2023) <https://lrkt.lt/lt/apie-teisma/naujienos/1331/priimtas-nagrineti-seimo-paklausimas-ar-seimo-nario-remigijaus-zemaitaicio-veiksmai-priestarauja-konstitucijai:598> accessed 28 October 2024.; Milena Andrukaitytė, ‘Lithuanian MP Žemaitaitis stripped of immunity over anti-Semitic posts’ (Lrt.lt, 14 February 2024) <https://www.lrt.lt/en/news-in-english/19/2195646/lithuanian-mp-zemaitaitis-stripped-of-immunity-over-anti-semitic-posts> accessed 28 October 2024. [18] BNS, ‘Lithuanian MP Žemaitaitis broke oath, violated constitution, court finds’ (Lrt.lt, 25 April 2024) <https://www.lrt.lt/en/news-in-english/19/2259470/lithuanian-mp-zemaitaitis-broke-oath-violated-constitution-court-finds> accessed 28 October 2024. [19] BNS, ‘Žemaitaitis steps down as MP following Constitutional Court ruling’  (Lrt.lt, 29 April 2024) <https://www.lrt.lt/en/news-in-english/19/2261468/zemaitaitis-steps-down-as-mp-following-constitutional-court-ruling>. [20] BNS, ‘Lithuania’s ex-MP Žemaitaitis turns to ECHR over his impeachment process’ (Lrt.lt, 26 August 2024) <https://www.lrt.lt/en/news-in-english/19/2346878/lithuania-s-ex-mp-zemaitaitis-turns-to-echr-over-his-impeachment-process> accessed 28 October 2024. [21] Eglė Samoškaitė, ‘We created him’: Behind the rise of Žemaitaitis and Nemunas Dawn’ (Lrt.lt, 16 October 2024) <https://www.lrt.lt/en/news-in-english/19/2386559/we-created-him-behind-the-rise-of-zemaitaitis-and-nemunas-dawn> accessed 28 October 2024. [22] Grażyna Baranowska, Aleksandra Gliszczyńska-Grabias, ‘Right to Truth’ and Memory Laws: General Rules and Practical Implications’ (2018) 47(1) Polish Political Science Yearbook 97. [23] Grazyna Baranowska, Leon Castellanos-Jankiewicz, and Agnieszka Chidlow, ‘The Impact of Language on Multinational Enterprises’ Knowledge Transfer: Insights from the Spanish Context’ (2020) 5(1) European Papers ‒ a Journal on Law and Integration 137. [24] Žilinskas (n 6). [25] Seiom of the Republic of Lithuania, ‘ Conclusion of the Main Committee on the draft law on the addition of Article 170-2 of the Criminal Code and the addition of the Code’s annex’ (Law and Order Committee, 16 April 2010) <https://e-seimas.lrs.lt/portal/legalAct/lt/TAK/TAIS.369887?jfwid=-onfyferuh> accessed 28 October 2024. [26] Žilinskas (n 6). [27] 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) 183. [28] Seimas of the Republic of Lithuania, ‘Draft Law Amending Article 1702 of the Criminal Code of the Republic of Lithuania’(Petras Gražulis [drafter], 28 February 2022)  <https://e-seimas.lrs.lt/portal/legalAct/lt/TAP/af6ff77098a111ec9e62f960e3ee1cb6> accessed 28 October 2024. [29] BNS, ‘Lithuanian Jewish leader calls for state’s reaction to MP’s anti-Semitic remarks’ (Lrt.lt, 14 June 2023) <https://www.lrt.lt/en/news-in-english/19/2013413/lithuanian-jewish-leader-calls-for-state-s-reaction-to-mp-s-anti-semitic-remarks> accessed 28 October 2024; Jewish Community of Lithuania, ‘Criminal Case against Former MP Žemaitaitis Begins’ (04 September 2024), <https://www.lzb.lt/en/2024/09/04/criminal-case-against-former-mp-zemaitaitis-begins/> accessed 28 October 2024.
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