HOLOCAUST DENIAL AS A FORM OF HATE
SPEECH – NEW DEVELOPMENTS
Talia 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








Weak
protection
against
Holocaust
denial/Strong
Freedom of
Expression
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
Strong
Manner likely to incite racial hatred
protection
Intent to incite hatred, discrimination
against
Holocaust
or violence
denial/Weak
Manner violating dignity of the
Freedom of
victims
Expression
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

1.
2.
International documents
January 2007 - UN General
Assembly Resolution
61/255:
“Condemns without any
reservation any denial of the
Holocaust;
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) +1(d)

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.”
Optional

“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”
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 FRAMEWORK
Section 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 FRAMEWORK
Incitement to Hatred
Section 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 2009
Denial /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
Article 82A –Incitement to racial
hatred, etc.
Article 82B - Condoning, denying or
trivializing genocide, etc., against a group
"(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.(...)
SLOVENIA
(1) NEW LEGISLATION
Slovenia 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
-Prohibited -
- Permitted Protected by freedom of expression
and the right to ideological freedom


!
“subjective and interested opinions
on historical events”
“ statements, queries and opinions of
Nazi activity with respect to Jews
and concentration camps” (V.
Friedman, 1991)

Not protected by freedom of
expression - in violation of the
principles of equality and
dignity
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.
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’amat
Tel-Aviv University
The Kantor Center for the Study of Contemporary
European Jewry
Email: talianaa@post.tau.ac.il