Documents considered by the Committee on 23 March - European Scrutiny Committee Contents


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

Legal base
Document originated22 December 2010
Deposited in Parliament14 January 2011
DepartmentCommunities and Local Government
Basis of considerationEM of 27 January 2011
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionCleared

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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