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1. Source of the legal provision

Article 6 of Government Emergency Ordinance No. 31/2002 (GEO 31/2002) [Ordonanței de urgență a Guvernului Nr. 31/2002 (OUG 31/2002)],[1] of 2002, as amended by Law No. 217/2015 amending and supplementing Government Emergency Ordinance No. 31/2002 on the prohibition of organisations and symbols with a fascist, racist, or xenophobic character and the promotion of the cult of persons guilty of committing crimes against peace and humanity [Lege Nr. 217/2015 pentru modificarea și completarea Ordonanței de urgență a Guvernului nr. 31/2002 privind interzicerea organizațiilor și simbolurilor cu caracter fascist, rasist sau xenofob și a promovării cultului persoanelor vinovate de săvârșirea unor infracțiuni contra păcii și omeniri].[2] Available in the original language via: Ministerul Justitiei [Ministry of Justice]; <https://legislatie.just.ro/Public/DetaliiDocument/170134>

2. Legal Provision in English

(1) Denial, contestation, approval, justification or minimisation in an obvious way by any means in public of the Holocaust or its effects is punished by imprisonment from six months to three years or by a fine (2) Denial, contestation, approval, justification or minimisation in an obvious way by any means in public of genocide, crimes against humanity and war crimes as defined in international law, in the Statute of the International Criminal Court and in the Charter of the International Military Tribunal established by the London Agreement of 8 August 1945 and recognised as such by a judgment of the International Court of Justice, the International Military Tribunal established by the London Agreement of August 8, 1945, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, or any other international criminal tribunal established by relevant international instruments and whose jurisdiction is recognised by the Romanian state, or their effects, shall be punishable by a term of imprisonment of six months to three years or by a fine. (3) The commission of the acts referred to in paragraph 1 shall be punishable by a fine of (1) and (2) by means of a computer system shall constitute offence and shall be punishable by imprisonment for a term of 6 months to 5 years.

3. Legal Provision in the original language

(1) Negarea, contestarea, aprobarea, justificarea sau minimalizarea în mod evident, prin orice mijloace, în public, a holocaustului ori a efectelor acestuia se pedepsește cu închisoare de la 6 luni la 3 ani sau cu amendă. (2) Negarea, contestarea, aprobarea, justificarea sau minimalizarea în mod evident, prin orice mijloace, în public, a genocidului, a crimelor contra umanității și a crimelor de război, astfel cum sunt definite în dreptul internațional, în Statutul Curții Penale Internaționale și în Carta Tribunalului Militar Internațional înființat prin Acordul de la Londra, la data de 8 august 1945, și recunoscute ca atare printr-o hotărâre definitivă a Curții Penale Internaționale, a Tribunalului Militar Internațional înființat prin Acordul de la Londra, la data de 8 august 1945, a Tribunalului Penal Internațional pentru fosta Iugoslavie, a Tribunalului Penal Internațional pentru Rwanda sau a oricărui altui tribunal penal internațional înființat prin instrumente internaționale relevante și a căror competență este recunoscută de statul român, ori a efectelor acestora se pedepsește cu închisoare de la 6 luni la 3 ani sau cu amendă. (3) Săvârșirea faptelor prevăzute la alin. (1) și (2) prin intermediul unui sistem informatic constituie infracțiune și se pedepsește cu închisoare de la 6 luni la 5 ani.[3]

4. Key Points

  • Romania prohibits the denial, contestation, approval, justification or minimisation in an obvious way by any public means of the Holocaust, genocides in general, crimes against humanity and war crimes. For crimes other than the Holocaust, this applies only to those crimes that have been established by an international court with jurisdiction recognised by Romania.
  • Unlike Article 1 (1) c, d of the EU Framework Decision on Racism and Xenophobia 2008/913/JHA (hereinafter ‘EU FD 2008’), Article 6 of the Romanian GEO 31/2002 does not require that such actions be carried out in a manner likely to incite violence or hatred.
  • Sanctions for Holocaust denial may include imprisonment for up to six months to three years or a fine.
  • The prohibition of Holocaust denial in Romania was first introduced by a government emergency ordinance in 2002, driven by efforts toward international integration and the need to counter the rise in antisemitism, Holocaust denial, and the resurgence of the Ion Antonescu cult.
  • As of today, there has only been one instance of conviction under this provision, rendered in 2021. However, this conviction was subsequently overturned by the Appellate Court in 2022.

5. Background

Legislation addressing Holocaust denial in Romania has been in place since the enactment of Government Emergency Ordinance 31/2002 (GEO 31/2002) on 13 March 2002. Article 6 of the GEO 31/2002 prohibited the public denial of the Holocaust and its effects, making its public denial punishable by imprisonment of up to five years and “the loss of certain rights”.[4] Moreover, the ordinance banned fascist, racist, and xenophobic organisations and symbols,[5] and outlawed the cult of all persons guilty of committing war crimes and crimes against humanity.[6] The issuance of GEO 31/2002 was driven by international pressure, prompting Romania to confront and acknowledge its role in the Holocaust,[7] particularly as a precondition for NATO and EU membership.[8] These international demands emerged amidst a national movement seeking the rehabilitation of Ion Antonescu, the Romanian pro-fascist dictator during the Nazi era, an ally of Hitler, and who was responsible for facilitating the Holocaust in Romania. He was executed as a war criminal in 1946.[9] Prior to the adoption of the ordinance, numerous squares and streets were named after him, and statutes were erected to honour his memory.[10] Concurrently, there was a rise in both Holocaust negationism and antisemitism in Romania,[11] alongside a noticeable increase in the prominence of radical right organisations and parties.[12] Following a report in November 2004 by the International Commission on the Holocaust in Romania (ICHR), which called for the formal adoption of the GEO 31/2002,[13] the ordinance was enacted as law with minor modifications in 2006.[14] This new legislation included a definition of the Holocaust, characterising it as “the systematic persecution supported by the state and the annihilation of European Jews by Nazi Germany, as well as by the allies and its collaborators from 1933-1945”.[15] Further reference was made to the Roma population being subjected to deportation and annihilation during the Second World War. Four months later, Article 6 was expanded to prohibit “the public denial, contestation, endorsement, or justification, by any means, of the Holocaust, genocide, crimes against humanity, or their effects”.[16] Article 6 underwent its most recent alteration in 2015, when the prohibition of minimising the Holocaust, genocides in general and crimes against humanity “in an obvious way” was added.[17] Furthermore, the following amendments were implemented: Firstly, the Legionary Movement[18] was explicitly categorised a fascist organisation, thereby prohibiting its symbols and propaganda in public spaces.[19] And secondly, in an effort to increase the application of the provision prohibiting the denial of the Holocaust by the judiciary,[20] the Holocaust was redefined as “the systematic persecution and annihilation of Jews and Romani people, supported by the authorities and institutions of the Romanian State within the territories that it administered between 1940 and 1944”.[21]

6. Application

The first and only criminal conviction under Article 6 for denying the Holocaust occurred in 2021,[22] involving a former colonel of the Romanian Intelligence Service. He received a suspended prison sentence of one year and one month for publishing two articles and a book between 2013 and 2017, wherein he contested the Holocaust’s existence, labelling it as “one of the biggest scams of the 20th century”.[23] He further claimed that the Holocaust is “a diabolical invention of Zionist organisations to raise money to support Zionist activities”.[24] However, on 31 March 2022, the Bucharest Court of Appeal overturned the sentence in response to an appeal from the defendant.[25] The court opined that, instead, a warning not to commit further crimes of the same nature sufficed. The application of Holocaust denial bans has therefore been sporadic, despite the criminalisation on paper. In May 2021, the general prosecutor’s office published a thematic assessment of criminal investigations conducted between 2017 and 2020 concerning incitement to hatred or discrimination (Article 369 of the Criminal Code) and the provisions of GEO 31/2002.[26] The report revealed a low number of cases concerning these offences compared to overall criminal cases. Furthermore, it highlighted the lack of significant national impact from the investigated acts, as evidenced by decisions to waive prosecution, dismiss cases, and impose minimal penalties or fines. Most sentences were either suspended or had penalties waived entirely.

7. Controversies

The 2015 amendment to GEO 21/2002, adding the alternative of minimisation, was issued by three members[27] of the centre-right National Liberal Party following criticism from the ICHR and other organisations combating antisemitism in Romania.[28] The criticism highlighted the continued existence of neo-legionary organisations, and failure to enforce the GEO 31/2002 despite complaints about public antisemitism to the Prosecutor’s Office.[29] According to the Explanatory Memorandum accompanying Law 217/2015, the amendment was moreover deemed necessary to rectify legal deficiencies within the original Holocaust definition.[30] It was argued that these deficiencies prompted Holocaust deniers to assert that Romania’s current territories differed from those governed during the relevant historical period,[31] and that the modern Romanian state bore no responsibility for the Holocaust (so called “selective Holocaust denial”).[32] The Holocaust definition was therefore redefined, now directly addressing the Holocaust supported by “the Romanian State”. Although the legislative revision by Law 217/2015 has been praised at the international level, scholars have noted that it has faced significant backlash from public figures in Romania.[33] Criticism targeted mainly the status of the Legionary Movement as a fascist organisation and the perceived failure to equally condemn communist crimes.[34] Radu Preda, then director of the Institute for the Investigation of Communist Crimes and the Memory of the Romanian Exile (IICCMER), described the legislation as “pro-communist”. Radu Ciuceanu, the head of the Romanian Institute for the Study of Totalitarianism of the Romanian Academy, criticised that the Legionary Movement did not “meet (…) a fascist ideological character”. Others just plainly characterised the law as “antidemocratic and insulting to Romanian culture”.[35]

8. Further Reading

  • Raul Cârstocea, ‘Between Europeanisation and Local Legacies: Holocaust Memory and Contemporary Anti-Semitism in Romania) (2021) 35(2) East European Politics and Societies 313.
  • Valerie Chelaru, ‘Tradition, Nationalism and Holocaust Memory: Reassessing Antisemitism in Post-Communist Romania’ (2022) 10(2) PLURAL. History. Culture. Society. Journal of History and Geography Department 58.
  • Alexandru Florian (ed.), Holocaust Public Memory in Postcommunist Romania (Indiana University Press 2018).
  [1] Monitorul Oficial Nr. 214, 28.3.2002. [2] Monitorul Oficial Partea I Nr. 558, 27.7.2015. [3] <https://legislatie.just.ro/Public/DetaliiDocument/170057> accessed 09.08.24. [4] Article 6 GEO 21/2002 (“Contestarea sau negarea în public a Holocaustului ori a efectelor acestuia se pedepseşte cu închisoare de la 6 luni la 5 ani şi interzicerea unor drepturi”). [5] Articles 3 and 4 GEO 21/2002. [6] Article 5 GEO 21/2002. [7] The International Commission on the Holocaust in Romania (ICHR), an international committee appointed by the government to examine the Holocaust in Romania, approximates the total death toll of Romanian and Ukrainian Jews under Romanian administration to be between 280,000 and 300,000, see International Commission on the Holocaust in Romania, Final Report (Polirom, 2004) 179. [8] Michael Shafir ‘Varieties of antisemitism in post-communist east central Europe: Motivations and Political Discourse’ in Jewish Studies at the CEU 2002-2003 (Central European University Press, 2003) vol. 3, 175, 196 f; Valerie Chelaru, ‘Tradition, Nationalism and Holocaust Memory: Reassessing Antisemitism in Post-Communist Romania’ (2022) 10 PLURAL. History. Culture. Society. Journal of History and Geography Department 58, 79; Raul Cârstocea, ‘Anti-semitism in Romania: Historical Legacies, contemporary challenges’ (2014) ECMI Working Paper #81, 27. [9] Adam Taylor, ‘Why Romania had to ban Holocaust denial twice’ The Washington Post (27 July 2015). [10] International Commission on the Holocaust in Romania, Final Report (Polirom, 2004) 359. [11] Nikolay Koposov, Memory Laws, Memory Wars (CUP 2017) 166. [12] Raul Cârstocea, ‘Anti-semitism in Romania: Historical Legacies, contemporary challenges’ (2014) ECMI Working Paper #81, 26 f. [13] International Commission on the Holocaust in Romania, Final Report (Polirom, 2004) 390. [14] Law 107 of 27 April 2006 (Law 107/2006); see Nikolay Koposov, Memory Laws, Memory Wars (CUP 2017) 167. [15] Article 2 letter d) Law 107/2006. [16] Article 6 of Law 237/2006 (“negarea, contestarea, aprobarea sau justificarea, prin orice mijloace, în public, a Holocaustului, genocidului sau a crimelor contra umanităţii ori a efectelor acestora se pedepseşte cu închisoare de la 6 luni la 5 ani şi interzicerea unor drepturi sau cu amendă”). [17] Law 217 of 23 July 2015 (Law 217/2015). [18] Article 2 letter f) Law 217/2015: “the Legionary Movement shall be understood a fascist organisation in Romania that operated in the period 1927-1941 under the names of ‘Archangel Michael Legion’, ‘Iron Guard’, and ‘Everything for the Country Party’”. [19] Raul Cârstocea, ‘Between Europeanisation and Local Legacies: Holocaust Memory and Contemporary Anti-Semitism in Romania’ (2021) 35 East European Politics and Societies 313, 323. [20] Michael Shafir, ‘Neither “Fleishig” nor “Milchig”: A Comparative Study’, in: Florian Alexandru (ed.) Holocaust Public Memory in Post-Communist Romania (Indiana University Press 2018) 103. [21] Article 2 letter e) Law 217/2015. [22] Judecătoria Sectorului 3 Bucureşti, 29 April 2021, 9749/301/2020 <https://portal.just.ro/301/SitePages/Dosar.aspx?id_dosar=30100000000642032&id_inst=301> accessed 09.08.24. [23] Cited after Dora Vulcan, ‘O sentință care va face istorie. Cât de reprezentativ este pentru societatea românească ofițerul SRI care neagă Holocaustul?’ Europa Liberă România (8 february 2021) <https://romania.europalibera.org/a/sentinta-sri-holocaust-antisemitism/31088231.html> accessed 29 July 2024. [24] Flavia Drăgan, ‘Undă verde pentru negaționiști, de la CAB. Vasile Zărnescu, ex-ofițerul SRI care a negat Holocaustul, scapă de închisoare’ DeFapt.ro (1 April 2022) <https://defapt.ro/negationistul-vasile-zarnescu-scapa-de-inchisoare/> accessed 09.08.24. [25] Curtea de Apel Bucureşti, 31 March 2022, 9749/301/2020 (1363/2021) <https://portal.just.ro/2/SitePages/Dosar.aspx?id_dosar=30100000000642032&id_inst=2> accessed 09.08.2024. [26] Superior Council of Magistracy, Judicial Inspection, ‘Report on the review of the investigation of cases under the criminal offence stipulated by Article 369 of the Criminal Code and the criminal offences stipulated by Emergency Governmental Ordinance 31/2002, amended by Law 157/2018’ (2021). [27] Crin Antonescu, PNL senator, Andrei Gerea, PNL deputy, George Scutaru, PNL deputy. [28] Michael Shafir, ‘Neither “Fleishig” nor “Milchig”: A Comparative Study’, in: Florian Alexandru (ed.) Holocaust Public Memory in Post-Communist Romania (Indiana University Press 2018) 103; Gabriel Andreescu, ‘Temele “legii antilegionare” din perspectiva eticii memoriei’ (2015) 11 Noua Revistă de Drepturile Omului 3, 3. [29] Gabriel Andreescu, ‘Temele “legii antilegionare” din perspectiva eticii memoriei’ (2015) 11 Noua Revistă de Drepturile Omului 3, 3. [30] Michael Shafir, ‘Neither “Fleishig” nor “Milchig”: A Comparative Study’, in: Florian Alexandru (ed.) Holocaust Public Memory in Post-Communist Romania (Indiana University Press 2018) 103 f. [31] Expunerea de motive, Proiect de Lege pentru modificarea O.U.G. Nr. 31/2002, 1. [32] Raul Cârstocea, ‘Anti-semitism in Romania: Historical Legacies, contemporary challenges’ (2014) ECMI Working Paper #81, 28; Raul Cârstocea, ‘Between Europeanisation and Local Legacies: Holocaust Memory and Contemporary Anti-Semitism in Romania’ (2021) 35 East European Politics and Societies 313, 323. [33] See for the following controversy: Raul Cârstocea, ‘Between Europeanisation and Local Legacies: Holocaust Memory and Contemporary Anti-Semitism in Romania’ (2021) 35 East European Politics and Societies 313, 324 ff.; Valerie Chelaru, ‘Tradition, Nationalism and Holocaust Memory: Reassessing Antisemitism in Post-Communist Romania’ (2022) 10 PLURAL. History. Culture. Society. Journal of History and Geography Department 58, 81 f. [34] Compare Andrei Pleșu, ‘Mărturii pentru cercetări viitoare’ adevarul.ro (10 August 2015) <https://adevarul.ro/blogurile-adevarul/marturii-pentru-cercetari-viitoare-i-1643301.html> accessed 09.08.24. [35] Valerie Chelaru, ‘Tradition, Nationalism and Holocaust Memory: Reassessing Antisemitism in Post-Communist Romania’ (2022) 10 PLURAL. History. Culture. Society. Journal of History and Geography Department 58, 81 f, with reference to Alex Ștefănescu, ‘Poate că sunt eu nebun’ adevarul.ro (20 August 2015) <https://adevarul.ro/news/societate/poatenebun-1_55d58512f5eaafab2cbe441e/index.html> accessed 09.08.24; Ion Spânu, ‘Legea 217/2015 a lui Crin Antonescu, o Lege împotriva culturii române’ Cotidianul.ro (2 July 2017) <https://www.cotidianul.ro/legea-2172015-a-lui-crin-antonescu-o-lege-impotriva-culturii-romane/> accessed 09.08.24.
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