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1. Source of the legal provision[1]

Article 82B of the Criminal Code [Kodiċi Kriminali] as amended by Law XXIV of 2014 – Law of 2014 amending various laws concerning criminal matters (Amendment No. 2) [Att XXIV tal-2014 – Att tal-2014 li jemenda Diversi Liġijiet li jirrigwardaw materji kriminali (Emenda Nru. 2)].[2] Article 82C Criminal Code [Kodiċi Kriminali] as amended by Law LXV of 2021 – Law of 2021 amending the Criminal Code (Amendment No. 8) [Att LXV tal-2021 – Att tal-2021 li jemenda l-Kodiċi Kriminali (Emenda Nru 8)].[3] Available in the original language via: Leġiżlazzjoni Malta; <https://legislation.mt/eli/cap/9/20240315/mlt>

2. Legal Provision in English

Article 82B Whosoever publicly condones, denies or grossly trivialises genocide, crimes against humanity or war crimes directed against a group of persons or a member of such a group defined by reference to race, colour, religion, citizenship, descent or national or ethnic origin when the conduct is carried out in a manner –
  1. likely to incite to violence or hatred against such a group or a member of such a group;
  2. likely to disturb public order or which is threatening, abusive or insulting,
shall, on conviction, be liable to imprisonment for a term from eight months to two years: Provided that for the purposes of this article “genocide”, “crimes against humanity” and “war crimes” shall have the same meaning assigned to them in article 54A.   Article 82C
  • Whosoever publicly condones, denies or grossly trivialises crimes against peace directed against a person or a group of persons defined by reference to gender, gender identity, sexual orientation, race, colour, language, national or ethnic origin, age, disability, citizenship, religion or belief or political or other opinion when the conduct is carried out in a manner-
  1. likely to incite to violence or hatred against such a person or group; or
  2. likely to disturb public order or which is threatening, abusive or insulting,
shall, on conviction, be liable to imprisonment for a term from eight months to two years.
  • For the purposes of this article a crime against peace means conduct consisting of:
  1. the planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances;
  2. participation in a common plan or conspiracy for the accomplishment of any of the acts referred to in paragraph (a).[4]
 

3. Legal Provision in the original language

Article 82B Kull min pubblikament jiskuża, jiċħad jew itaffi b’mod grossolan xi ġenoċidju, delitt kontra l-umanità u delitt tal-gwerra dirett kontra grupp ta’ persuni jew xi membru ta’ dak il-grupp b’referenza għar-razza, kulur, reliġjon, ċittadinanza, dixxendenza jew oriġni nazzjonali jew etnika meta dik l-imġieba titwettaq b’mod li –
  1. x’aktarx ixxewwex għall-vjolenza jew mibegħda kontra dak il-grupp jew membru ta’ dak il-grupp;
  2. x’aktarx jikser l-ordni pubblika jew li jkun ta’ theddid, abbuż jew insult, jista’, meta jinstab ħati, jeħel priġunerija għal żmien minn tmien xhur sa sentejn:
Iżda għall-finijiet ta’ dan l-artikolu “ġenoċidju”, “delitti kontra l-umanità” u “delitti tal -gwerra” għandu jkollhom l-istess tifsira bħal dik mogħtija lilhom fl-artikolu 54A.   Article 82C
  • Kull min pubblikament jiskuża, jiċħad jew itaffib’mod grossolan delitti kontra l-paċi diretti kontra persuna jewgrupp ta’ persuni b’referenza għal ġeneru, identità tal-ġeneru, orjentazzjoni sesswali, razza, kulur, lingwa, oriġini nazzjonali jewetnika, età, diżabilità, ċittadinanza, reliġjon jew twemmin jew opinjonipolitika jew opinjoni oħra meta dik l-imġieba titwettaq b’mod li –
  1. x’aktarx ixxewwex għall-vjolenza jew mibegħdakontra dik il-persuna jew dak il-grupp; jew
  2. x’aktarx jikser l-ordni pubblika jew li jkun ta’ theddid,abbuż jew insult,
jista’, meta jinstab ħati, jeħel priġunerija għal żmien minn tmienxhur sa sentejn.
  • Għall-finijiet ta’ dan l-artikolu delitt kontra l-paċi jfissermġieba li tkun tikkonsisti:
  1. fl-ippjanar, tħejjija, bidu jew għemil ta’ gwerra ta’aggressjoni, jew gwerra bi ksur ta’ kull trattat, ftehimjew assikurazzjoni internazzjonali;
  2. fil-parteċipazzjoni fi pjan komuni jew assoċjazzjonigħall-għemil ta’ xi wieħed mill-atti msemmija fil-paragrafu (a).[5]

4. Key Points

  • There is no specific legislation in Malta that criminalises the denial of the Holocaust. However, Malta does penalise the public condoning, denial, or gross trivialisation of war crimes, crimes against humanity, genocides in general and crimes against peace. These prohibitions apply regardless of whether the crimes have been established by a court.
  • The offence under Article 82B of the Criminal Code is supplemented by further requirements stipulating that such behaviour must likely incite violence or hatred, and additionally, must likely disrupt public order, or be threatening, abusive, or insulting.
  • Article 82C of the Criminal Code only requires either incitement to violence or hatred, or disruption of public order, or conduct that is threatening, abusive, or insulting.
  • Possible sanctions may include imprisonment for a term from eight months to two years.
  • To date, no convictions have been made specifically for Holocaust denial. Instead, antisemitic remarks are prosecuted as hate speech under Article 82A of the Criminal Code.

5. Background

To implement the EU Framework Decision on Racism and Xenophobia 2008/913/JHA (hereafter ‘EU FD 2008’),[6] Malta enacted legislation on 17 July 2009 criminalising the public condoning, gross trivialisation, and denial of genocides under Article 82B of the Criminal Code. Such conduct is subject to legal sanctions only when carried out in a manner likely to incite violence or hatred (Article 82B a of the Criminal Code). Notably, it must also be likely to disrupt public order or be threatening, abusive, or insulting (Article 82B(b) of the Criminal Code). By introducing this requirement, Malta exercised its discretion under Article 1 (2) EU FD 2008 – thus opting for a narrow scope when sanctioning such behaviour.[7] Similarly, Malta specified that public denial or gross trivialisation is only punishable under Article 82B of the Criminal Code upon a final determination of genocide by a competent national or international court.[8] Conversely, for Article 82C of the Criminal Code, it requires either incitement to violence or hatred, or disruption of public order, or conduct that is threatening, abusive, or insulting. During parliamentary deliberations, the meaning of the term “publicly” was especially discussed. This term was meant to specifically denote public gatherings as distinct from private expressions of opinion or academic contributions.[9] Although the opposition ultimately supported the governmental proposal for legislative amendment, culminating in the adoption of the memory laws, it concurrently characterised it as an “overkill”.[10] In particular, criticism was directed towards the added provision of Article 82D of the Criminal Code concerning complicity, which specifically criminalises the act of aiding, abetting, or instigating the incriminated statement under Article 82B or 82C of the Criminal Code.[11] Malta appears to be the only EU member state to have adopted such a provision.[12] The opposition further denounced the severity of the imposed prison sentence. Provided that the offence is directed against a group of people or an individual belonging to a group as defined by the listed attributes in Articles 82B and 82C of the Criminal Code, it carries a penalty of up to 2 years imprisonment. Article 82B underwent its last amendment in 2014, introducing the additional attribution of “citizenship” to the provision,[13] whilst Article 82C of the Criminal Code was last revised in 2021, adding “age” and “disability”.[14]

6. Application

To date, there has been no conviction for Holocaust denial in Malta. Furthermore, no prosecutions have been reported under Articles 82B or 82C of the Criminal Code. This lack of legal action could be attributed to the relatively recent enactment of these memory laws in 2009. At the same time, instances of explicit Holocaust denial, such as those by far-right politician and leader of the Imperium Europa party, Norman Lowell, appear to not have resulted in prosecution under these specific provisions. Lowell has made highly controversial statements, including comparing Auschwitz to “the Disneyland of Poland” and denying the Holocaust by calling it “the biggest lie since the Virgin Mary”.[15] Instead, the politician has been convicted for inciting hatred under Article 82A of the Criminal Code[16] in 2008 for delivering racist speeches and publishing a derogatory article that included terms such as “parasites” for Jews and “vicious Sudanese”, as well as advocating violence against refugees. Lowell’s subsequent appeal was unsuccessful.[17]

7. Controversies

The introduction of Articles 82B and 82C of the Criminal Code did not stir major controversy in Maltese society. Public debate concerning Holocaust denial in Malta most recently focused upon Ronald Bugeja, author of the biography entitled “Mein Führer Adolf Hitler – L-Istorja u l-Bijografija” [My Führer Adolf Hitler: History and Biography], which he promoted during the book review programme Ħajjitna Ktieb on Maltese Television (TVM) in April 2023.[18] The book is deemed revisionist as it glorifies and justifies Hitler and the actions of the Nazi civil and military administration.[19] It is reported that Bugeja’s intention was to explore whether there were any positive aspects of Hitler. He asserted that the Nazi leader was unaware of the “atrocities” committed during World War II, while blaming Jews and Communists for having “destroyed” Germany.[20] The public controversy focused on two main issues: firstly, the initial promotion of the book, and secondly, the lack of critical reflection during the interview.[21] The interviewer, John Demanuele, later apologised for having hosted the interview.[22] The authors’ organisation PEN Malta expressed that it was “shocked and disgusted” with the national broadcaster for using its platform to promote Nazi ideas.[23] Meanwhile, in a letter published in the Times of Malta, the German ambassador condemned any “ill-guided attempts to attribute allegedly positive characteristics to Hitler and/or to belittle the enormity of his crimes”, calling such views “erroneous to the extreme”.[24] The Ministry of Culture distanced itself from the interview and referred to PBS, the national public broadcaster, which has initiated an internal investigation into the incident.[25] Moreover, a police report was filed against Bugeja.[26] There is no further information if any action was taken. The public outrage over this interview suggests that Holocaust minimisation and denial remain strongly condemned in Malta.

8. Further Reading

  • Report from the Commission to the European Parliament and the Council on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law (COM 27 final, 2014).
  • William R. Pruitt, ‘Understanding Genocide Denial Legislation: A Comparative Analysis (2017) 12(2) International Journal of Criminal Justice Sciences’ 270.
  NETHERL [1] Special thanks to Dr. Carla Camilleri (Aditus Foundation) for her valuable insights and clarifications on key issues addressed in this entry. [2] Gazzetta tal-Gvern ta’ Malta Nru. 19,291, 01.08.2014. [3] Gazzetta tal-Gvern ta’ Malta Nru. 20,750, 14.12.2021. [4] <https://legislation.mt/eli/cap/9/20240315/eng> accessed 12.08.24. [5] <https://legislation.mt/eli/cap/9/20240315/mlt> accessed 12.08.24. [6] COM/2014/027 final. [7] Article 1 (2) EU FD 2008 reads “For the purpose of paragraph 1, Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting”. [8] Thereby making use of Article 1 (4) EU FD 2008; see European Commission, Report from the Commission to the European Parliament and the council on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law (COM 27 final, 2014) 6. [9] Maltese Chamber of Deputies, Official and Revised Report, Session no. 77, 28 January 2009, 764. [10] Maltese Chamber of Deputies, Official and Revised Report, Session no. 77, 28 January 2009, 747. [11] See Article 82D of the Criminal Code. [12] European Commission, Report from the Commission to the European Parliament and the council on the implementation of Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law (COM 27 final, 2014) 6. [13] Law XXIV of 2014. [14] Law LXV of 2021. [15] Jonathan Cilia, ‘Norman Lowell Denies Holocaust After Calling Auschwitz The ‘Disneyland Of Poland’’ Lovin Malta (6 May 2019) <https://lovinmalta.com/news/norman-lowell-denies-holocaust-after-calling-auschwitz-the-disneyland-of-poland/> accessed 09.08.24. [16] Article 82A reads “(1) whosoever uses any threatening, abusive or insulting words or behaviour, or displays any written or printed material which is threatening, abusive or insulting, or otherwise conducts himself in such a manner, with intent thereby to stir up violence or hatred against another person or group of persons on the grounds of gender, gender identity, sexual orientation, race, colour, language, ethnic origin, age, disability, religion or belief or political or other opinion or whereby such violence or hatred is likely, having regard to all the circumstances, to be stirred up shall, on conviction, be liable to imprisonment for a term from six (6) to eighteen (18) months […] (2) For the purposes of sub-article (1) “violence or hatred” means violence or hatred against a person or against a group of persons in Malta defined by reference to gender, gender identity, sexual orientation, race, colour, language, national or ethnic origin, age, disability, citizenship, religion or belief or political or other opinion”. [17] See for more <https://fra.europa.eu/en/databases/anti-muslim-hatred/node/6700> accessed 09.08.2024. [18].‘Police report filed against Maltese author of a glorifying Hitler biography’ EJC (17 April 2023) <Police report filed against Maltese author of a glorifying Hitler biography – European Jewish Congress (eurojewcong.org)> accessed 09.08.24. [19] Matthew Vella, ‘PEN Malta riled at prison historian’s Hitler glorification being given TVM platform’ Malta Today (14 April 2023) <https://www.maltatoday.com.mt/arts/books/122332/pen_malta_riled_at_prison_historians_hitler_glorification_given_tvm_platform> accessed 09.08.2024. [20] ‘Police report filed against Maltese author of a glorifying Hitler biography’ EJC (17 April 2023) <Police report filed against Maltese author of a glorifying Hitler biography – European Jewish Congress (eurojewcong.org)> accessed 09.08.24. [21] Jessica Arena, ‘Watch: Anger, disgust as TVM promotes Hitler propaganda biography’ Times of Malta (14  April  2023) <Watch: Anger, disgust as TVM promotes Hitler propaganda biography (timesofmalta.com)> accessed 09.08.2024. [22] Matthew Vella, ‘TVM investigates Nazi book promotion as John Demanuele issues apology’ Malta Today (14  April 2023) <TVM investigates Nazi book promotion as John Demanuele issues apology (maltatoday.com.mt)> accessed 09.08.2024. [23] Statement published by PEN Malta on Facebook, 13 April 2023 <https://www.facebook.com/photo/?fbid=535892738712401&set=pcb.535894342045574> accessed 09.08.2024. [24] Letters to the editor, Times of Malta (15 April 2023) <Letters to the editor – April 15, 2023 (timesofmalta.com)> accessed 09.08.2024. [25] Jessica Arena, ‘Watch: Anger, disgust as TVM promotes Hitler propaganda biography’ Times of Malta (14  April  2023) <Watch: Anger, disgust as TVM promotes Hitler propaganda biography (timesofmalta.com)> accessed 09.08.2024. [26] Daniel Tihn, ‘Police report filed against author of Hitler biography, German ambassador reacts’ Times of Malta (15 April 2023) <Police report filed against author of Hitler biography, German ambassador reacts (timesofmalta.com)> accessed 09.08.2024.
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