Memory Laws in the Baltic States : [a report by research consortium "The Challenge of Populist Memory Politics for Europe: Towards Effective Responses to Militant Legislations on the past (MEMOCRACY)"]

Abstract

This report provides an overview of the memory laws that codify the remembrance of the Nazi and Soviet eras in the three Baltic states: Estonia, Latvia and Lithuania. The report summarizes the distinct patterns of mnemonic legal regulation in the Baltic states, including national and international case law, the related controversies and the background of memory legislation in a compact format. Memory laws generally presume certain past events to be more significant for a society than others, either because they are seen as a danger to vital societal and political principles the government wants to defend or as a form of official truth that should be protected from scrutiny.1 Legislation validating specific narratives about the past2 is frequently linked to security concerns.3 The Council of Europe (CoE) defines ‘memory laws’ as norms that ‘enshrine state-approved interpretations of crucial historical events and promote certain narratives about the past, by banning, for example, the propagation of totalitarian ideologies or criminalizing expressions which deny, grossly minimize, approve or justify acts constituting genocide or crimes against humanity, as defined by international law’.4 Uladzislau Belavusau and Aleksandra Gliszczy´nska-Grabias describe them more broadly as acts that enshrine state-approved interpretations of crucial historical events. As the field of memory laws is constantly evolving, there are many genre typologies.6 ‘The hard core of memory laws’ are so-called punitive memory laws, since they penalize certain categories of speech about the past.7 Such laws are the most controversial form of state intervention, as they deliberately restrict the possible scope for negotiation and debate on matters of the past.8 This report does not intend to provide a theoretical background for potentially new classifications of various ‘memory laws’. It proceeds from an understanding of memory laws as legislations that regulate social memory and convey a certain interpretation about the past. The pertinent Baltic legislation is contextualised against the backdrop of the relevant European standards, largely set before the Baltic states became part of the European Union (EU) in 2004. Memory laws in the Baltic states were adopted in the course of dealing not only with their past during the Nazi German occupation (1941-1944), but also with the two Soviet occupations (1940-1941 and 1944-1990, respectively). Whereas the ruling Nazi party (National Socialist German Workers’ Party) was held accountable for their crimes, the Communist Party of the Soviet Union never assumed any responsibility, and attempts at a ‘Russian Nuremberg’ failed in 1992.9 The Baltic accounts are further complicated by the domestic collaboration with the Nazi destruction of the local and European Jewry (especially in Latvia and Lithuania) and the role of local communist parties during the Soviet occupations of the Baltic states. The legacy of communism continues to shape politics and society in this region to this day. The report distinguishes between a) punitive memory laws, b) non-punitive memory laws and c) quasi-memory laws. The most important punitive memory law – relating to specific historical events in the Baltic countries – is the offence of Holocaust denial, approval or downplaying – which was adjusted to the Baltic realities, and thus also includes the denial of Soviet crimes during the two Soviet occupations. Domestic regulations following the formulations suggested by the ‘Framework Decision 2008/913/JHA on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law’ (FD 2008)11 were introduced in the 2010s,12 after years of attempts since 1990 to include the Baltic experiences in the European narrative, mainly focused on the remembrance of the Holocaust. [...].