Laws against Holocaust Denial
Holocaust denial is illegal in 18 European countries, including all German-speaking countries. Many states have expanded lawsprohibitingHolocaust denial as defamation , racism, or along with denial of further genocide .
international law
In 2003, the Council of Europe adopted the Additional Protocol to the Convention on Cyber Crime on the criminalization of acts of a racist or xenophobic nature using computer systems. Article 6 deals with “denial, gross trivialization, approval or justification of genocide or crimes against humanity”. The protocol has no legal status. Since 2008, the EU member states have been obliged by framework decision to make “the public approval, denial or gross trivialization of genocide, crimes against humanity and war crimes” subject to punishment if these crimes are “based on the criteria of race, skin color, religion, origin or national or ethnic origin ”.
In the course of the 2001 Budapest International Convention against Internet Crime, content that referred to freedom of expression was explicitly omitted at the request of the United States .
List by country
| country | Legal text |
|---|---|
| Argentina |
Law in preparation (2009)
Since February 25, 2009, Argentina has been preparing a law to criminalize the denial of the Holocaust , the Armenian genocide and the crimes committed by the Argentine military dictatorship . |
| Belgium |
Negationism Law (1995, amended 1999)
Loi tendant à réprimer la négation, la minimization, la justification ou l'approbation du génocide commis par le régime national-socialiste allemand pendant la seconde guerre mondiale / Wet tot punishing van het ontkennen, minimaliseren, Rechtsvaardigen of goedkeuren van de genocide die tijdens de tweede wereldoorlog door het Duitse national-socialist regime is gepleegd Article 1 Anyone who denies, grossly trivializes, justifies or approves the genocide committed by the German National Socialist regime during the Second World War in accordance with Art. 444 of the Criminal Code shall be punished with imprisonment from eight days to one year and a fine of 26 to 5000 francs become. The provisions of Art. 2 of the UN Convention on the Prevention and Punishment of Genocide of December 9, 1948 apply to the application of this section. In the event of a recurrence, the guilty party may be deprived of civil rights in accordance with Art. 33 of the Criminal Code. Article 2 In the event of a conviction under this Act, it can be ordered that the whole or part of the punishment be published in one or more newspapers at the expense of the convicted person. Article 3. Chapter VII of Book 1 of the Criminal Code and Art. 58 of the same are also applicable to this law. Art. 4. The Center for Equal Opportunities and Against Racism, as well as any organization that has existed for five years at the time of the act and which, based on its statutes, aims to defend the moral interests and the honor of the resistance or the deportees, can in all Legal issues arising from the application of the law, carry out the legal transaction. |
| Germany |
Section 130 Criminal Code : Incitement of the masses (1985, additions 1992, 2002 and 2005)
(1) Anyone who, in a manner that is likely to disturb the public peace, 1. incites hatred against sections of the population or calls for violent or arbitrary measures against them or 2. attacks the human dignity of others by attacking sections of the population insulted, maliciously scorned or slandered , is punished with imprisonment from three months to five years. (...) (3) A prison sentence of up to five years or a fine shall be punished for anyone who publicly conducts an act of the type specified in Section 6 (1) of the International Criminal Code in a manner that is suitable for disrupting the public peace, under the rule of National Socialism or in a meeting approves, denies, or belittles. (4) Anyone who publicly or in a meeting disturbs the public peace in a manner that violates the dignity of the victims by approving, glorifying or justifying the National Socialist tyranny and arbitrary rule shall be punished with imprisonment of up to three years or a fine. (...) Section 189 Criminal Code: Disparaging the memory of the deceased (1985, amended 1992) Anyone who vilifies the memory of a deceased person is punished with imprisonment for up to two years or with a fine. Section 194 of the Criminal Code: Criminal complaint (1) The insult will only be prosecuted upon request. If the act was committed by disseminating a document or making it publicly available ( Section 11, Paragraph 3), in a meeting or by a performance on the radio, an application is not required if the injured person is a member of a group under National Socialist or other violence - and arbitrary rule was persecuted, this group is part of the population and the insult is related to this persecution. However, the offense cannot be prosecuted ex officio if the injured party objects. The objection cannot be withdrawn. If the injured person dies, the right of application and the right to object are transferred to the relatives named in Section 77 (2). (2) If the memory of a deceased person is vilified, the relatives named in Section 77 (2) shall have the right to apply . If the act is committed by disseminating or making a document publicly available ( Section 11 Paragraph 3), in a meeting or by a performance on the radio, an application is not required if the deceased lost his life as a victim of National Socialist or other violence and has lost arbitrariness and the denigration is related to it. However, the offense cannot be prosecuted ex officio if an applicant objects to the prosecution. The objection cannot be withdrawn. (...) |
| European Union |
EU Directive on Combating Racism and Xenophobia (2007)
The following willful acts will soon become punishable in all EU Member States: Public incitement to violence and hatred, including through the distribution and distribution of tracts, pictures or other material directed against a group of persons or a member of such a group defined by race, skin color, religion, origin or national or ethnic affiliation; "Public toleration, denial or massive trivialization of genocide crimes, crimes against humanity and war crimes" as set out in the Statute of the International Criminal Court (Articles 6, 7 and 8) and which are directed against a group of persons or a member of such a group Group defined by race, skin color, religion, descent or national or ethnic affiliation as well as crimes, defined by the Nuremberg Court of Justice (Art. 6 of the Charter of the International Military Tribunal, London Agreement 1945) which are directed against a group of persons or a member of such a group defined by race, skin color, religion, ancestry or national or ethnic affiliation. Member States are free to choose whether to punish behavior as a disturbance of public order, a threat, an abuse or an insult. Relation to religion must be covered, but at least one behavior that is defined as a template for guiding acts against a group of people or a member of such a group by race, skin color, religion, descent or national or ethnic affiliation. Member States ensure that these acts are punishable by a maximum of 1 to 3 years in prison. |
| France |
Law No. 90-615 on the Prevention of Racist, Anti-Semitic and Xenophobic Acts (1990)
Loi Gayssot (French) , see also Loi Gayssot . Modification of the law of July 29, 1881 on freedom of the press Article 8 - Article 24 of the law of July 29, 1881 on freedom of the press is supplemented as follows: In the event of criminal prosecution of one of the offenses of the aforementioned sub-paragraph, the court can also decide: Especially if the responsibility of the author of the infringement is based on Art. 42 and the first sub-paragraphs of article 43 of this law or the first three sub-paragraphs of article 93-3 of law no. 82-652 of July 29, 1982 on audio-visual communication extends the withdrawal of rights under 20 and 30 of Art. 42 Criminal Code with imprisonment for a maximum of 5 years. Art 9. - As a supplement to Article 24 of the law of July 29, 1881 on freedom of the press, Art. 24 (c) it says: << Art. 24 (a). - Anyone who questions the existence of one or more crimes against humanity is defined in Article 6 of the Statute of the International Military Tribunal, recorded in the London Agreement of August 8, 1945, and those of members of one named as criminal under Article 9 of the aforementioned Statute Organization or any person found guilty of such crimes under French or international law, "shall be punished with between one month and one year in prison or a fine." Art 13. - Inserted after Art. 48-1 of the law of July 29, 1881 on freedom of the press, Art. 48-2 says: << Art. 48-2. - Publication or publicly propagated opinion that encourages those to whom it is addressed to evade positive moral judgment on one or more crimes against humanity and tends to justify those crimes (including collaboration) or to justify their perpetrators be punished with one month to one year imprisonment or a fine. |
| Israel |
Holocaust Denial (Prohibition) Act (1986)
Definition 1. In this law, "crimes against Jewish people" and "crimes against humanity" have the same meaning as in "Nazis and Nazi Collaborators Act, 5710-1950. Prohibition of denial of the Holocaust 2. A person who, in writing or through the spoken word, any statement that denies the acts that were committed during the time of National Socialism or relativizes its scope, and which crimes against the Jewish people or humanity, with the Aim to defend the perpetrators, to express sympathy or to identify with them, published, is to be held responsible for this with imprisonment for a period of five years. Prohibition of the publication of sympathies for Nazi crimes 3. A person who, in writing or through the spoken word, makes any statement of praise, sympathy or identification with acts that were committed during the time of National Socialism, which concern crimes against Jewish people or humanity , published, should be held responsible for it with imprisonment for a period of five years. Permitted Publication 4. The publication of an accurate and fair report on a publication prohibited by this law should not be recorded as a relevant offense unless the aim is to express sympathy or identification with the perpetrators of crimes against Jewish people or against humanity. Execution 5. Charges for offenses under this Act will only be brought with the consent of the Attorney General. |
| Liechtenstein |
§ 283 (5) (2000)
Anyone who 1. publicly incites hatred or discrimination against a person or a group of people because of their race, ethnicity or religion is punishable by imprisonment of up to two years. (...) 5. publicly denies, grossly belittles or tries to justify genocide or other crimes against humanity through words, writing, images, signs, gestures, acts of violence or in any other way transmitted via electronic media, |
| Luxembourg |
Article 457 (3) (1997)
Anyone who doubts, relativizes, justifies or denies war crimes or crimes against humanity as defined in the Statute of the International Military Tribunal of August 8, 1945 or the existence of a genocide as defined in the law of August 8, 1985, will face imprisonment between 8 days and 6 months or a fine. In order to come to the trial, the person (or organization) concerned must report the perpetrator. |
| Austria |
Prohibition Act 1947
The current version from 1992 reads: § 3g. Anyone who acts in a way other than that described in §§ 3a to 3f in the National Socialist sense [reactivation or identification with the NSDAP, note] , is subject to imprisonment from one to one, unless the act is more severely punishable according to another provision punished for ten years, if the perpetrator or the activity is particularly dangerous, up to 20 years. § 3h. According to § 3g, anyone who denies, grossly belittles, or approves of the National Socialist genocide or other National Socialist crimes against humanity in a printed work, on the radio or in another medium or whoever publicly in a way that makes it accessible to many people is also punished or seek to justify. |
| Poland |
Law on the Institute of National Remembrance - Commission for the Prosecution of Crimes against the Polish People of December 18, 1998 (Dz.U. 1998 nr 155 poz. 1016)
Article 55 Article 1
2. the implementing regulations regarding the prosecution of crimes specified in point 1 a), |
| Portugal |
Racial Discrimination Act
§ 240 (2) - Anyone in public meetings, in writing for the purpose of dissemination, or in any other form of social communication, individuals or groups of individuals on the basis of their race, skin color or ethnic, national or religious origin, with the aim of inciting or encouraging racial or religious Discrimination, defamed or insulted, is punishable by imprisonment from three months to two years or a fine. |
| Romania |
Emergency Law No 31 (2002, ratified May 2005)
(3) Promotion of the cult of persons who are guilty of crimes against peace and humanity, or the promotion of fascist, racist or xenophobic ideologies by means of propaganda of any kind in public is punished with imprisonment from 6 months to 5 years and the loss of civil rights . (4) Public denial of the Holocaust or its consequences is punished with imprisonment from 6 months to 5 years and the loss of civil rights. It is forbidden to maintain public spaces or to erect statues, groups of statues or commemorative plaques that honor people who have been found guilty of crimes against peace and humanity and also to name streets, boulevards, squares, parks or other public spaces after such people. |
| Switzerland |
261bis Racial Discrimination (1995)
Anyone who publicly calls for hatred or discrimination against a person or a group of people because of their race, ethnicity or religion, who publicly disseminates ideologies aimed at the systematic degradation or slander of members of a race, ethnic group or religion, whoever is with the same Objective Organizes, promotes or takes part in propaganda campaigns who publicly disparage or discriminate or discriminate against a person or a group of persons because of their race, ethnicity or religion in a manner that is contrary to human dignity through word, writing, images, gestures, assault or in any other way for one of these reasons denies genocide or other crimes against humanity, grossly trivializes or seeks to justify anyone who refuses a person or group of people a person or group of people because of their race, ethnicity or religion, a service offered by them that is intended for the general public, will face up to three imprisonment Years or a fine. |
| Spain |
Anti-Genocide Act (1971, amended 1995)
Art. 607 (2) The dissemination of any kind of ideas or doctrines which deny or justify crimes within the meaning of the previous paragraph of this article, the attempt to re-establish regimes or institutions that protect or allow them to be protected will be punished with imprisonment of one to two years . The addition of the words “deny or” was declared unconstitutional and void by the Spanish Constitutional Court in its decision of November 7, 2007 [1] . |
| Czech Republic |
Law against the support and promotion of movements that suppress human rights and freedoms (2001)
Punishment for Holocaust Denial Section 260 (1) The person who supports or promotes movements that suppress human rights and freedoms or that spread national, racial, religious or class hatred or hatred against other groups of people is punished with imprisonment of 1 to 5 years. (2) The person will be imprisoned for 3 to 8 years if: a) He / she commits the act mentioned in Paragraph (1) by means of print, film, radio, television or in another, similarly effective way, b) He / she commits the act as a member of an organized group c) He / she commits the act in the event of a national emergency or in a state of war Section 261 The person who publicly shows sympathy with a group named in Section 260 is punished with imprisonment from 6 months to 3 years. Section 261a The person who “publicly denies, questions, approves or seeks to justify the Nazi or communist genocide” or other crimes committed by the Nazis or communists is punished with imprisonment from 6 months to 3 years. |
| United States |
Holocaust denial is not a criminal offense, but may be liable to pay damages under civil law
The factuality of the Holocaust was judged in 1985. Judgment of the Superior Court of California, No. C 356 542, of July 22, 1985 in the legal dispute Mel Mermelstein vs. Institute for Historical Review et al. |
Resolutions of the German Federal Constitutional Court
On April 13, 1994, the German Federal Constitutional Court ruled that denying the Holocaust does not fall under the fundamental right of freedom of expression under Article 5, Paragraph 1 of the Basic Law ( Az. 1 BvR 23/94, published in BVerfGE 90, 241). Rather, it is
- [...] a factual assertion which, according to countless eyewitness reports and documents, the judgments of the courts in numerous criminal proceedings and the findings of historical science, has been proven to be untrue. Taken in isolation, an assertion of this content therefore does not enjoy the protection of freedom of expression.
Decision of the BVerfG of June 22, 2018, Az. 1 BvR 673/18, Rd. 22-23
It should be noted that a restriction of freedom of expression according to Article 5, Paragraph 2 of the Basic Law is only possible on the basis of general, but not specific laws:
- Interventions in freedom of expression must [...] be formally based on a general law that is not directed against a specific opinion, [...]
Nevertheless, the Federal Constitutional Court recognizes this formal requirement of the general public
- [...] made an exception for laws aimed at preventing a propagandistic affirmation of the National Socialist rule of violence and arbitrariness between the years 1933 and 1945. It thus takes into account the identity-shaping significance of German history and allows this to flow into the understanding of the Basic Law (see BVerfGE 124, 300 <328 ff.>).
Criticism and debate
The laws on the criminal liability of Holocaust denial are controversial among lawyers. The former constitutional judge Wolfgang Hoffmann-Riem ruled: “As a legislator, I would not criminalize denial of the Holocaust.” The Central Council of Jews in Germany condemned Riem's statement. Winfried Hassemer , criminal law scholar and former Vice President of the Federal Constitutional Court, expressly agreed with him.
The historian Eberhard Jäckel also spoke out against laws on Holocaust denial on the grounds that a ban on a certain historical image would be “not worthy of a free society”.
2013 ECHR judgment
The human court in Strasbourg ruled in 2013 that the conviction of a genocide denier in Switzerland violated the freedom of expression . The case concerned the genocide of the Armenians from 1915 onwards. The laws mentioned here are affected by the judgment, provided that they do not explicitly refer to the Holocaust, but instead make denial of genocide generally a criminal offense.
Additional information
See also
literature
- Gregory S. Gordon: Atrocity Speech Law: Foundation, Fragmentation, Fruition. Oxford University Press, 2017, ISBN 0-19-061268-1
- Alex Brown: Hate Speech Law: A Philosophical Examination. Routledge, London 2015, ISBN 0-415-88547-7
- Milosz Matuschek: Remembrance Criminal Law : a new justification of the prohibition of Holocaust denial on a comparative law and socio-philosophical basis. Duncker & Humblot, 2012, ISBN 3-428-53733-5
- Ludovic Hennebel, Thomas Hochmann: Genocide Denials and the Law. Oxford University Press, New York 2011, ISBN 978-0-19-973892-2
- Michael Whine: Expanding holocaust Denial and Legislation against it. Jewish Political Studies Review, Vol. 20, No. 1/2 (Spring 2008), pp. 57-77
- Robert Kahn: Holocaust Denial and the Law: A Comparative Study. Palgrave Macmillan, 2004, ISBN 1-4039-6476-9
- Thomas Wandres: The criminal liability of denying Auschwitz. Duncker & Humblot, 2000, ISBN 3-428-10055-7
Web links
- Jonathan D. Josephs: Holocaust Denial Legislation: A Justifiable Infringement of Freedom of Expression? Series of the Working Papers du Center Perelman de philosophie du droitn ° 2008/3
- Michael J. Bazyler: Holocaust Denial Laws and Other Legislation Criminalizing Promotion of Nazism.
- Daniel Emery: The rise of Hate 2.0. BBC, June 22, 2009
Individual evidence
- ^ Colin Tatz, Winton Higgins: The Magnitude of Genocide. ABC-Clio, 2016, ISBN 978-1-4408-3160-7 , p. 154, fn. 1
- ^ Additional Protocol to the Convention on Cyber Crime
- ^ Karl-Peter Schwarz: Identity in the community of values , in: Frankfurter Allgemeine of December 30, 2010
- ↑ Press release from the Argentine Ministry of Justice of February 25, 2009 ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. Spanish
- ↑ Act of 18 December 1998 on the Institute of National Remembrance - Commission for Prosecution of Crimes against the Polish Nation , Ustawa z dnia 18 grudnia 1998 r. o Instytucie Pamieci Narodowej - Komisji Scigania Zbrodni przeciwko Narodowi Polskiemu ( Memento of September 30, 2007 in the Internet Archive ) Link of the law: tekst ujednolicony . Polish
- ^ Wording of the judgment at Nizkor Project , May 6, 1995
- ↑ AFP: Ex-constitutional judge: "I would not make Holocaust denial a criminal offense". In: Focus Online . July 9, 2008, accessed October 14, 2018 .
- ↑ http://www.tagesspiegel.de/politik/deutschland/Holocaust;art122,2568827
- ↑ Report in the Tagesspiegel from July 11, 2008
- ↑ http://www.deutschlandfunkkultur.de/historiker-jaeckel-holocaust-leugner-mit-ignoranz-strafen.945.de.html?dram:article_id=132449
- ^ Judgment in Strasbourg: Freedom of expression comes first
