HOLOCAUST DENIAL AS A FORM OF HATE SPEECH – NEW DEVELOPMENTSTalia Na’amat, Adv. , Legal Research

Tel-Aviv University

The Kantor Center for the Study of Contemporary European Jewry

CONCEPTUAL BASIS “Simple” Holocaust denial – statements, doubts or

opinions about the Jewish Holocaust, plain dissemination of ideas

“Qualified”– opinions including offensive value judgments, imputations in disrepute or contempt of the group (i.e., the Holocaust as a mass scale fraud for gaining political and financial interests).

VARYING LEVELS OF PROTECTION AGAINST GENOCIDE/HOLOCAUST DENIAL Total Freedom of Expression (only “Fire”

in a theatre is prohibited speech) Incitement to violence Manner likely to disturb public order Incites to hatred Incites to discrimination Manner likely to incite racial hatred Intent to incite hatred, discrimination or

violence Manner violating dignity of the victims

LEGAL FRAMEWORK – BEFORE EC FRAMEWORK DECISION 2008

Countries’ national Holocaust denial provisions prior to 2008

Austria Belgium Czech Republic France Germany Lithuania Israel Liechtenstein Luxembourg Poland Romania Slovakia Spain (denial revoked in 2007) Switzerland

International documents

January 2007 - UN General Assembly Resolution 61/255:

1. “Condemns without any reservation any denial of the Holocaust;

2. Urges all Member States unreservedly to reject any denial of the Holocaust as an historical event, either in full or in part, or any activities to this end.”

FRAMEWORK DECISION OF 28 NOVEMBER 2008 (IMPLEMENTATION 28 NOVEMBER 2010)

1. (c) “Publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court(…) when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;”

(d) “Publicly condoning, denying or grossly trivializing the crimes defined in Article 6 of the charter of the International Military Tribunal appended to the London Agreement of 8 August 1945(…) when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.”

“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”

1 (c) +1(d) Optional

HUNGARY(1) NEW LEGISLATION

Act of 22 February 2010, signed by the President in March 2010. “Those who publicly hurt the dignity of a victim

of the Holocaust by denying or questioning the Holocaust itself, or claim it insignificant, infringe the law and can be punished by prison sentence of up to three years.

On 8 June 2010 the newly elected parliament changed the wording of the law:“punish those who deny the genocides

committed by national socialist or communist systems”.

HUNGARY (2)LEGAL FRAMEWORKSection 269 - Incitement

against a Community "A person who incites to

hatred before the general public against

(a) the Hungarian nation,(b) any national, ethnic, racial

group or certain groups of the population, shall be punishable for a felony offense with imprisonment up to three years."

Act of 22 February 2010, signed by the President in March 2010. “Those who publicly hurt

the dignity of a victim of the Holocaust by denying or questioning the Holocaust itself, or claim it insignificant, infringe the law and can be punished by prison sentence of up to three years.

On 8 June 2010, the wording of the law: “punish those who deny

the genocides committed by national socialist or communist systems”.

LATVIA (1) NEW LEGISLATION PENAL CODE OF 8 JULY, 1998 – amendment of 21 May 2009 Section 74

"For a person who commits public glorification of genocide, crime against humanity, crime against peace or war crime or public denial or acquittal of implemented genocide, crime against humanity, crime against peace or war crime - the applicable sentence is deprivation of liberty for a term of not less than five years or community work.”

LATVIA(2) LEGAL FRAMEWORKIncitement to HatredSection 78 "(1) For a person who

commits acts intentionally directed towards instigating national, ethnic or racial hatred or enmity, the applicable sentence is deprivation of liberty for a term not exceeding three years or community service, or a fine not exceeding sixty times the minimum monthly wage.(2) For a person who commits the same acts, if they are associated with violence, fraud or threats, (…) deprivation of liberty for a term not exceeding ten years."

Amendment of 21 May 2009Denial /justification

Section 74 "For a person who commits public glorification of genocide, crime against humanity, crime against peace or war crime or public denial or acquittal of implemented genocide, crime against humanity, crime against peace or war crime - the applicable sentence is deprivation of liberty for a term of not less than five years or community work.”

MALTA (1) NEW LEGISLATION MALTA CRIMINAL CODE – Amendment of March 2009 Article 82B -Condoning, denying or trivializing genocide, etc., against a

group "Whosoever publicly condones, denies or grossly trivializes

genocide, crimes against humanity and war crimes directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner -

(a) likely to incite to violence or hatred against such a group or a member of such a group;

(b) 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.(...)

MALTA(2) LEGAL FRAMEWORK

"(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 racial hatred or whereby violence or racial 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 to eighteen months.

(2) (...)(1) "Whosoever publicly condones, denies or grossly trivializes genocide, crimes against humanity and war crimes (...) when the conduct is carried out in a manner -

(a) likely to incite to violence or hatred against such a group or a member of such a group;

(b) 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.(...)

Article 82A –Incitement to racial hatred, etc.

Article 82B - Condoning, denying or trivializing genocide, etc., against a group

SLOVENIA (1) NEW LEGISLATIONSlovenia Penal Code of 1 November 2008

Article 297- Public Incitement to Hatred, Violence or Intolerance "(1) Whoever publicly provokes or stirs up ethnic, racial, religious or

other hatred, strife or intolerance, or provokes any other inequality on the basis of physical or mental deficiencies or sexual orientation, shall be punished by imprisonment of up to two years.

(2) The same sentence shall be imposed on a person who publicly disseminates ideas on the supremacy of one race over another, or provides aid in any manner for racist activity or denies, diminishes the significance of, approves, disregards, makes fun of, or advocates genocide, holocaust, crimes against humanity, war crime, aggression, or other criminal offences against humanity.

(3) –(6) (…)”

SLOVENIA(2) LEGAL FRAMEWORK

"(1) Whoever publicly provokes or stirs up ethnic, racial, religious or other hatred, strife or intolerance, or provokes any other inequality on the basis of physical or mental deficiencies or sexual orientation, shall be punished by imprisonment of up to two years.

(2) The same sentence shall be imposed on a person who publicly disseminates ideas on the supremacy of one race over another, or provides aid in any manner for racist activity or denies, diminishes the significance of, approves, disregards, makes fun of, or advocates genocide, holocaust, crimes against humanity, war crime, aggression, or other criminal offences against humanity.

SPAIN(1) LEGAL FRAMEWORK (UNTIL 2007)

Article 510 (1.)” Whosoever incites discrimination, hatred or violence against a group or association, due to racist or antisemitic motives, or motivations related to ideology, religion or belief, family status, to the belonging to an ethnic group or a race, national origin, sex or sexual orientation, illness or disabilities, shall be punished with imprisonment for a period of one to three years, and with a fine of six to twelve months.

Article 607 (2) “Any dissemination of ideas or theories which deny or justify the offences classified in the previous paragraph of this article, or which attempt to rehabilitate systems or institutions which harbour practices which generate such crimes, by any means, shall be punished with imprisonment for a period of one to two years.”

SPAIN(1) CONSTITUTIONAL COURT, 7 NOVEMBER 2007 Prohibiting denial is un-constitutional

Deemed incompatible with the right to freedom of expression as guaranteed by the Spanish Constitution: “the precept would conform to the Constitution if it were possible to assume from its terms that the conduct penalised necessarily implies a direct incitement to violence against specific groups or contempt for victims of the crimes of genocide. (TC 235/2007, of 7 November 2007)

Dissenting vote by Senior Judge Jorge Rodríguez-Zapata Pérez – any denial violates the constitutionally protected right to honour and thus is not protected under freedom of expression.

SPAIN(2) CONSTITUTIONAL COURT, 2007 Prohibiting denial is unconstitutional

“subjective and interested opinions on historical events”

“ statements, queries and opinions of Nazi activity with respect to Jews and concentration camps” (V. Friedman, 1991)

!

statements, expressions or campaigns of a racist or xenophobic nature..

Expressing specific understanding of history or perception of the world with the deliberate aim of deriding and discriminating.

freedom of expression cannot provide protection to “discourse of hatred” that is, to any discourse which involves direct incitement to violence against citizens in general or against particular races or beliefs.

- Permitted -

Protected by freedom of expression and the right to ideological freedom

-Prohibited -

Not protected by freedom of expression - in violation of the principles of equality and dignity

SPAIN(3) SUPREME COURT, 2011 Disseminating Neo-Nazi ideas is not prohibited

July 2011- Spain Supreme Court overturned convictions of four individuals charged with distributing neo-Nazi propaganda –disseminating Nazi ideology is not a crime unless used to incite violence or certain danger, or create a hostile climate.

THANK YOU!

Talia Na’amatTel-Aviv University

The Kantor Center for the Study of Contemporary European Jewry

Email: talianaa@post.tau.ac.il