Holocaust denial in criminal law: Legal frameworks in selected EU Member States

The Holocaust ('Shoah' in Hebrew) – the state-sponsored, systematic persecution and mass murder of Jews, whom the Nazi regime and its collaborators sought to annihilate along with other persecuted groups, such as Roma and Sinti – took place in Europe. It is therefore not surprising that a trend to address negationism – i.e. unfounded theories questioning certain historical events – by means of criminal law, originated in Europe. With time, the scope of criminalisation has been extended to cover not only the Shoah, but also other internationally recognised crimes. Such prohibition is, however, not without controversy as it may interfere with fundamental rights, such as freedom of expression and academic freedom. The Council of Europe has played a major role in addressing Holocaust denial, in particular through the case law of the European Court of Human Rights pertaining to the limits of freedom of expression. The Court has consistently excluded negationism from the protection of the European Convention on Human Rights, pointing to the antisemitic nature of the prohibited statements and qualifying them as abuse of rights. In the European Union (EU), a 2008 Framework Decision on racism and xenophobia sought to align national legislation on historical denialism. Yet, national laws still differ in many respects, such as the definition of offences and the range of historical events, the memory of which they serve to protect. This Briefing looks at criminal provisions in 17 selected EU Member States: Belgium, Czechia, Germany, Greece, Spain, France, Italy, Lithuania, Luxembourg, Hungary, Netherlands, Austria, Poland, Portugal, Romania, Slovenia and Slovakia. It attempts to identify the main elements of the criminal conduct and of the corresponding punishment. The following EPRS policy analysists have contributed to the country analyses: Piotr Bąkowski (Poland), Carmen-Cristina Cirlig (Romania), David De Groot (Netherlands), Micaela Del Monte (Luxembourg and Portugal), Angelos Delivorias (Greece), Fabiana Fracanzino (Spain and Italy), Fruzsina Fuzesi (Hungary), Vilma Karvelyte-Shetty (Lithuania), Karoline Kowald (Austria), Katrien Luyten (Belgium), Hendrik Mildebrath (Germany), Marketa Pape (Czechia), Anja Radjenovic (Slovenia), Branislav Stanicek (Slovakia), and Sofija Voronova (France). This is an update of a Briefing published in September 2021.