7 Crimes committed by totalitarian
regimes in Europe
| (32422)
5128/11
COM(10) 783
| Commission Report: The memory of the crimes committed by totalitarian regimes in Europe
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| Legal base | —
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| Document originated | 22 December 2010
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| Deposited in Parliament | 14 January 2011
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| Department | Communities and Local Government
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| Basis of consideration | EM of 27 January 2011
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
7.1 The Commission's report reminds us that, in November 2008,
the Council adopted a Framework Decision on combating certain
forms and expressions of racism and xenophobia by means of criminal
law.[37] The Framework
Decision is limited to crimes committed on the grounds of race,
colour, religion, descent or national or ethnic origin. It does
not cover crimes committed on other grounds. The Commission's
report further explains that a statement added to the minutes
of the Council on adoption of the Framework Decision requested
the Commission to examine and to report to the Council within
two years after the entry into force of the Framework Decision
whether an additional legal instrument was needed, to cover publicly
condoning, denying or grossly trivializing crimes of genocide,
crimes against humanity and war crimes directed against a group
of persons defined by reference to criteria other than
race, colour, religion, descent or national or ethnic origin,
such as social status or political convictions. This request was
reiterated in the Stockholm Programme,[38]
and this report is a result of those requests.
The document
7.2 The report is based on a study commissioned by the Commission
and replies to questionnaires sent to Member States.
OVERVIEW
7.3 The study revealed that all Member States concerned have
taken measures to deal with the legacy of crimes committed by
totalitarian regimes. Member States have adopted different approaches
according to their history, specific circumstances, culture and
legal systems. The study showed that there is no one-size-fits-all
model, and that the mix of instruments and methods used in each
Member State — justice for victims, prosecution of perpetrators,
truth seeking, preservation of the memory, awareness-raising initiatives
— is country-specific. Even among Member States that have
suffered the same kind of totalitarian regimes, the choice of
instruments, measures and practices adopted can differ significantly.
7.4 The study concluded that justice for victims is vital
for the successful transition from totalitarianism to democracy.
Trials of perpetrators, truth-seeking mechanisms, the opening
of archives, rehabilitation and compensations of victims and restitution
of confiscated properties are among the main tools for achieving
this objective, according to the study.
7.5 It also concluded that preserving and promoting the memory
of crimes committed by totalitarian regimes is equally important,
in particular to educate younger generations on the value of democracy
and respect for fundamental rights. The study showed that this
policy was one of the few that were common to most Member States.
THE LEGAL FRAMEWORK ON THE DENIAL OF CRIMES
7.6 The study and the replies to the questionnaires sent by
the Commission to Member States revealed the divergence and complexity
of the approaches to the legal framework for the issue of the
condoning, denial or the gross trivialisation of genocide, crimes
against humanity and war crimes directed against a group of persons
defined by reference to criteria other than race, colour, religion,
descent or national or ethnic origin, such as social status or
political convictions. Four Member States have legislation on
the denial of crimes committed by totalitarian regimes which explicitly
includes the crimes committed by totalitarian communist regimes:
- in the Czech Republic the criminal code contains a specific
offence for a person who publicly denies, puts in doubt, approves
or tries to justify Nazi or communist genocide or other crimes
of Nazis or communists against humanity;
- in Poland the public denial of Nazi crimes, communist crimes
and other crimes against peace and humanity or war crimes is a
criminal offence;
- in Hungary the public denial, calling into question or trivialisation
of the fact of the genocide and other crimes against humanity
committed by national socialist and communist regimes is a criminal
offence; and
- in Lithuania the public condoning, denying or grossly trivialising
of international crimes and crimes committed by the USSR or Nazi
Germany against the Republic of Lithuania or its residents is
a criminal offence.
7.7 In other Member States, with the exception of Latvia,
the report concludes that it is unlikely that the condoning, denial
or gross trivialisation of such crimes would be considered a crime.
This is either because of the absence of legislation on the denial
of crimes of genocide, crimes against humanity or war crimes (irrespective
of the grounds), or because the prosecution of such conduct excludes
the grounds of social status or political convictions, or because
it would have implications for the freedom of expression. However,
certain replies to the questionnaire mentioned that a prosecution
on the basis of other provisions of criminal law could be considered,
for example on the basis of the prohibition of incitement to hatred
or for having violated the "memory of deceased persons".
The report also concludes that there have been no convictions
in any Member State for these crimes.
ACTION AT EU LEVEL
7.8 The report goes on to examine action at EU level to promote
the memory of totalitarian crimes, including: the European Parliament's
Resolution of 2 April 2009, which called for the proclamation
of 23 August as a Day of Remembrance; the June 2009 General Affairs
Council Conclusions, which stated that the memory of such crimes
must be preserved; and a number of international conferences on
the subject. The Commission commits itself to contributing to
the memory of the crimes of totalitarian regimes, particularly
through the exchange of experiences and practices, and the use
of relevant financial programmes:
"The Commission is committed to contributing, in line with
its responsibilities, to the promotion of the memory of the crimes
committed by totalitarian regimes in Europe. The Commission considers
that it is important to address knowledge gaps concerning the
totalitarian past of all Member States, and especially concerning
the period of time in which Eastern and Western Europe have lived
two different experiences. The memory and awareness of the tragic
past and of the crimes committed by totalitarian regimes should
bring together the peoples of Europe. It is important to contribute
to the recognition of, and support for, all victims of the totalitarian
regimes that have devastated Europe. The Commission can facilitate
the exchange of experiences and practices in this area. This will
also confirm the importance of the values of respect for human
dignity, freedom and democracy on which the European Union is
founded."[39]
7.9 In its Resolution of 2 April 2009, the European Parliament
called for the establishment of a Platform of European Memory
and Conscience to provide support for networking and cooperation
among national research institutes specialising in the subject
of totalitarian history, and for the creation of a pan-European
documentation centre/memorial for the victims of all totalitarian
regimes. It also called for a strengthening of the existing relevant
financial instruments with a view to providing support for professional
historical research on the issues outlined above. The conclusions
of the GAERC Council on 16 June 2009 welcomed this initiative,
which would provide support for networking and cooperation among
national bodies related to the examination and remembrance of
totalitarian regimes. Bringing together all actors from all Member
States, including academic and independent researchers and experts,
in order to exchange experiences, analysis and best practices,
including on how Member States promote collective memory through
educational curricula, would be a way of contributing to promote
awareness and exchange of experiences in this area. In its report,
the Commission says that such a Platform could be eligible to
apply for an annual operating grant under the Europe for Citizens
programme. The Commission considers that it is important that
exchange of experiences and best practices bring together all
actors from all Member States, including academic and independent
researchers and experts.
SCOPE FOR HARMONISATION AT EU LEVEL
7.10 The Council asked the Commission to examine whether a
legal instrument, additional to the Framework Decision on racism
and xenophobia, is needed to cover publicly condoning, denying
or grossly trivializing crimes of totalitarian regimes. Article
83 TFEU is the legal basis for the definition of criminal offences
and penalties for particularly serious crime with a cross border
dimension. Article 83(1) TFEU lists these areas: they do not include
these types of crime. However, the report notes that the list
of areas can be extended unanimously by the Council, after obtaining
the consent of the European Parliament, on the basis of "developments
in crime".
7.11 The Commission concludes that, in light of the divergence
of the measures adopted by Member States, the conditions for introducing
legislation have not been met, but it will keep the matter under
review.
CONCLUSIONS
7.12 The report concludes as follows:
"The Commission is convinced that the European Union has
a role to play, within the scope of its powers in this area, to
contribute to the processes engaged in the Member States to face
up to the legacy of totalitarian crimes. The European Union is
founded on the respect of fundamental rights and is a constant
inspiration and source of encouragement to all nations struggling
to come to terms with the sufferings of their past. The memory
of the horrors of the past must be a shared endeavour for all
in the European Union to make a reality of the expression 'Your
past is our past'. Keeping this memory alive is our collective
duty as a sign of tribute and respect for all victims who have
suffered and died and as a way to ensure that it never happen
again. This memory nourishes the commitment of the European Union
to democracy and the respect of fundamental rights, and to fight
against modern manifestations of intolerance and extremism."[40]
The Government's view
7.13 In an Explanatory Memorandum dated 27 January 2011, the
Parliamentary Under-Secretary of State at the Department for Communities
and Local Government (Andrew Stunell) says that the Government
is satisfied that it is appropriate for the Commission to report
on this issue. That said, it believes that the commemoration of
totalitarian crimes is best left to individual Member States to
address in a way that is appropriate to their history, traditions
and legal systems. In particular the Government would oppose any
requirement on the UK to create an offence of denial of the crimes
of totalitarian regimes. The Commission's conclusions are in line
with this view, but he notes that it will keep the situation under
review.
Conclusion
7.14 We agree with the Minister that the commemoration
of totalitarian crime is best left to individual Member States
and we do not readily see why the EU should be involved in this
field. In particular, we very much doubt that the trivialisation,
condoning or denial of crimes committed by totalitarian regimes
has a cross-border element that would justify legislating at EU
level; such legislation would also raise profound questions of
the scope of the freedom of speech.
7.15 In clearing the document from scrutiny we ask the
Minister to be vigilant to ensure that any future proposals for
action by the EU in this field respect the competences that were
conferred on it.
37 2008/913/JHA: OJ No. L 328, 06.12.08, pp. 55-58. Back
38
Adopted by the European Council on 10-11 December 2009: OJ No.
C 115, 04.05.2010, pp. 1-38. Back
39
See p. 7 of the Commission report. Back
40
Ibid, p. 10. Back
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