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Russia’s Supreme Court Rewrites History of the Second World War

Published on October 28, 2016        Author: 

Introduction and Background

On September 1 2016, exactly 77 years since the outbreak of the Second World War, Russia’s Supreme Court upheld the conviction of Perm resident Vladimir Luzgin under Article 354.1 of the Russian Penal Code ­- Rehabilitation of Nazism. Luzgin had the unpleasant distinction of being the first individual prosecuted under the new provision of the code criminalizing:

[1] Denial of facts, established by the judgement of the International Military Tribunal…, [2] approval of the crimes adjudicated by said Tribunal, and [3] dissemination of knowingly false information about the activities of the USSR during the Second World War, made publicly.

Two months earlier, Luzgin, a 38-years old auto mechanic, was fined 200,000 rubles (roughly €2,800) for reposting on the popular Russian social networking site vkontakte a link to an online article containing numerous assertions in defense of Ukrainian nationalist paramilitaries that fought during the Second World War. The basis for Luzgin’s conviction lay in the statement that unlike the nationalists, “the Communists…actively collaborated with Germany in dividing Europe according to the Molotov-Ribbentrop Pact,” and “Communists and Germany jointly attacked Poland and started the Second World War on 1 September 1939!”

In this post, we address some of the problematic aspects of this “memory law” and the Supreme Court’s decision with respect to freedom of expression in Russia; the Russian Constitution protects this fundamental right expressly, and through incorporation of international customary norms and rules embodied in the European Convention on Human Rights (ECHR), all of which the Supreme Court eschewed in its ruling. Prior to addressing the decision and its implications however, some words are in order on the drafting history of the law and its putative aims.

Article 354.1 Drafting History 

The 2014 amendment to the Penal Code can be traced back to May 2009, when a similar proposal was submitted by a group of Duma deputies in reaction to the alleged rise of “historical revisionism” in Ukraine and other former Communist states. Many of the former Soviet republics and satellites at one time or another viewed the Soviet Union and the Red Army as an occupying power, and pursued policies promoting this interpretation of their Communist past. In response, Russia’s political elites have accused these states of rehabilitating Nazism, and have perpetuated a legitimizing, heroic vision of Soviet-era history with the victory in the “Great Patriotic War” at its core. In line with this historical narrative, today’s regime regards the Molotov-Ribbentrop Pact of August 23 1939 that divided Poland between Germany and the Soviet Union positively, calling it a “colossal achievement of Stalin’s diplomacy.”

Strongly criticised for vagueness and technical shortcomings, the May 2009 bill was soon withdrawn, but a slightly changed version was adopted almost unanimously in May 2014, only two months after the Maidan Revolution in Ukraine which, according to Russia, brought to power a radical “fascist” junta.

Does the “Memory Law” Pursue a Legitimate State Aim?

The May 2014 Amendment was denounced by the Russian civil society, historians, and international organisations; the OSCE’s Representative on Freedom of the Media warned that the Law had the potential to “stifle public debate” and “undermine democracy and human rights.” Russia’s Foreign Ministry deflected this criticism, pointing to similar provisions in the criminal codes of Austria, Germany, Italy, Belgium and France to show the link between the need to protect “historical truth” and national security.

Indeed, the right to express oneself freely on the validity of certain historical facts, as embodied in Article 10 ECHR for instance, admits certain limitations, including those aimed at securing public safety, national security and the rights of others. As of 2014, over 20 OSCE states have criminalized some form of “historical revisionism” ostensibly in order to achieve one of these aims.

The first two clauses of Russia’s Article 354.1 are representative of the most prevalent type of “memory law,” one prohibiting the denial, trivialization or support of international crimes committed by the Nazis (see e.g. the Gayssot Act, France). International treaty bodies, including the European Court of Human Rights (ECtHR), have accorded a wide “margin of appreciation” to states employing “memory laws” to sanction “historical revisionism” of the Holocaust and other Nazi crimes (see e.g. Human Rights Committee, Robert Faurisson v. France, ECtHR Schimanek v. Austria). By contrast, in the recent Perinçek v. Switzerland judgment, the Grand Chamber questioned the existence of a “pressing social need” to punish radical historical opinions, and found a violation of Article 10 in Perinçek’s conviction for statements denying the characterisation of massacres of Armenians in 1915 as genocide.

It is the third clause of Russia’s Article 354.1 – “dissemination of knowingly false information about the activities of the USSR during the Second World War” – that is particularly problematic. Not only is the clause laden with imprecise terms such as “knowingly false” and “activities,” one of its declared aims was to undermine an emerging historical consensus among other European states, and historians, that the Soviet Union committed aggression, war crimes, and other international crimes during the Second World War. Prone to becoming a tool of stifling public criticism by State authorities, legislation designed to protect the State from accusations of having committed international crimes is very rare in European democracies, and subject to greater scrutiny by domestic and international courts. (see e.g. ECtHR, Dink v. Turkey). In this respect, Russia’s law is very similar to the infamous Article 301 of the Turkish Criminal Code prohibiting the “denigration of Turkishness”, a provision previously employed by the State to persecute those questioning Turkey’s denial of Armenian genocide.

The Judgment

The Supreme Court upheld Luzgin’s conviction because by restating the historical claim that the USSR and Germany both attacked Poland in September 1939, he assisted in the “rehabilitation of Nazism” and formation of belief in the “negative activity of the USSR in the Second World War.” It is hard to see how the impugned statement could amount to denial or approval of any of the crimes committed by the Nazis as established by the IMT at Nuremberg. In the judgment, the Supreme Court sidestepped any discussion of the veracity of facts contained in Luzgin’s repost, relying instead on prosecution experts who submitted their findings to the Perm Court that Luzgin’s statements (which were not even his own to begin with) “did not correspond to the reality recognized on the international level.” While a large portion of the expert report was dedicated to description of crimes committed by Ukrainian nationalists and their collaboration with the Nazis, these were not among the crimes adjudicated by the IMT at Nuremberg.

The Supreme Court rightly concluded that Luzgin’s adopted statement that Communists collaborated with the Nazis, which was read by 20 people, is conducive to forming a negative opinion of the Soviet Union’s activities during the Second World War. But was his assertion actually “false”? It is a well-settled fact that in September 1939 the Soviet Union and Nazi Germany were partners in solving the so-called “Polish question,” agreeing to partition Poland only one week before Germany’s invasion. One might also recall Stalin’s reply to von Ribbentrop’s birthday telegram in 1940: “The friendship of Germany and the USSR, cemented by blood, has all the reason to be lasting and firm.” Thus, there is nothing “knowingly false” about Luzgin’s assertion that the Communists and Germans collaborated or invaded Poland starting the Second World War. One should add that if the IMT at Nuremberg is the ultimate authority here, its relevance to the Soviet Union’s actions is only tangential: a victor’s tribunal, the IMT had no jurisdiction over “activities of the USSR”.

Conclusion

The third clause of Article 354.1. criminalizes the “wrong” views on Russia’s Soviet-era history, and by its very existence whitewashes the legacy of Communists and the Soviet Union, a non-existent state, instead of protecting millions of victims of Stalinist atrocities. Unfortunately, in upholding Luzgin’s conviction, Russia’s Supreme Court has embraced the legislators’ Orwellian instruction to flout provable historical fact. Since he has exhausted all effective domestic remedies, the doors are now open for Mr. Luzgin to pursue historical truth in Strasbourg.

In the remaining paragraphs we offer some concluding thoughts on the prospects of this litigation. Article 10 ECHR permits restrictions to expression that are prescribed by law, pursue a “legitimate aim” and are “necessary in a democratic society.” Because they deal with Nazi crimes and are somewhat narrowly tailored, the first two provisions of Article 354.1 just might pass judicial muster for all three at the international level (whether Luzgin actually “rehabilitated Nazism” is a separate factual inquiry for the Court on which we will not speculate here) .

Unlike norms that prohibit the revival or praise of totalitarian regimes however, which might fall into the rubric of laws ensuring a “democracy capable of defending itself“, “slander” laws designed to impose criminal sanctions on individuals accusing previous regimes of having committed international crimes are not likely to pursue any legitimate aims in a democratic society. Discrediting the international consensus on historical truth is certainly not one of them.

With respect to the “necessity” criterion, the ECtHR has been very reluctant to endorse an infringement of political speech absent a showing of a “pressing social need”, as it has stated in Perinçek. The ECtHR has also reiterated the “chilling effect” that the fear of sanctions has on the exercise of freedom of expression. In Dink, the Court emphasized that Article 10 ECHR generally prohibits restrictions on freedom of expression in the sphere of political speech and issues of public interest, especially where it concerned “research of historical truth,” finding that Dink’s conviction for denigrating Turkish identity had not answered any “pressing social need.”

Adopted at the height of the Ukraine crisis, Article 354.1., and especially its third clause, is a masked attempt to impose a patriotic social consensus in Russia by indirectly labeling anyone who questions the Soviet Union’s positive role in the Second World War a “Nazi” or “Nazi collaborator.” With the Supreme Court’s ruling, the controversial law’s impact will result in more revisionism in Russia, while confining public debates over the dark pages of Soviet history to police stations and courts, instead of promoting open discussions in schools, university classes and pages of academic publications. For these reasons, and along the lines of argumentation in Dink, the “slander” clause of Article 354.1 will be found incompatible with the ECHR by the European Court, should the case end up there.

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8 Responses

  1. Nick Notan

    According to the posting, the third clause of Article 354.1 is aimed against “dissemination of knowingly false information about the activities of the USSR during the Second World War”.

    Also, accordng to the posting “The third clause … by its very existence whitewashes the legacy of Communists and the Soviet Union”.

    Is the latter statement apparently incorrect,
    or
    do the authors hold an opinion that it should be legal to disseminate knowingly false information about the activities of the USSR during the Second World War?

  2. Terry

    Given that the Molotov Ribbentrop Pact of 1939( and its attendant by products such as Stalin;s annexation of first Eastern Poland and then the Baltic States of Estonia, Latvia and Lithuania) are common knowledge to historians of WWII(at least in the non-Communist West), one wonders how that this can be “knowingly false”? According to his daughter Svetlana, even during and after WWII, Stalin would observe in her presence “echt, together with the Germans we would have been invincible!”

  3. It should be legal to discuss history anyway. Russian history, the history of Turkey. Maybe we could do it in a way that doesnt insult dead soldiers. Maybe this is the basic idea of some other denying as well.

  4. Nick Notan

    Terry, according to the posting, one of Luzgin’s statements is ” “Communists and Germany jointly attacked Poland and started the Second World War on 1 September 1939!” “.

    Of course, this is a false statement. The USSR did not attack Poland on 1 September 1939. Poland and other countries did not declare war on the USSR, but declared war on Germany. The US film “The Battle of Russia” (1943) clearly shows how the events unfolded.

    Also, most likely, Stalin did not know that Germany would attack Poland: before that, in 1938 and 1939, Germany, Poland and Hungary had achieved their goals with respect to Czechoslovakia rather “by diplomacy” (despite that their troops invaded Czechoslovakia, and much closer in time). Also, before that, in 1939 Germany and Poland had achieved their goals with respect to Lithuania rather “by diplomacy”. Similarly, in 1938 Germany achieved its goals with respect to Austria “by diplomacy”. Most likely, Stalin expected that Germany would continue achieving its goals “by diplomacy”.

    Further, Stalin did not even know until the very last hours that Germany would attack the USSR in June of 1941. How could Stalin know for sure in 1939 that Germany would attack Poland, and join the attack of September 1, 1939? Hence, no joint attack could take place.

  5. Veronika Bilkova Veronika Bilkova

    Dear Gleb and Ilya,

    many thanks for this interesting post which casts light on the background of the case as well. Moreover, while the post is focused on Russia, it illustrates a more general trend we witness in the CEE region (all these new memory/history laws). I have several comments.

    First, although I personally have doubts about “slander” laws, I am not sure whether in a tradition which clearly does not exclude such laws (I mean the European tradition), we can claim that these laws “are not likely to pursue any legitimate aims in a democratic society”. It is true that the concept of “democracy capable of protecting itself” is not necessarily applicable here – though it might be in some cases, because attempts to reinterpret history are often an integral part of attempts to change the system today. Even if this is not the case, however, spreading intentional lies about some historical events may interfere with rights or dignity of other people, especially victims and relatives of victims. Sure, this happens more typically in “denial cases” – when crimes and, consequently, the status of victims are denied. Yet, a similar situation may arise in “imputation cases” – when crimes and, consequently, the status of criminals are alleged. Of course, in some instances, the reasons given by the State could be just a smokescreen for something more sinister. And even if these reasons are genuine, the criminalization of the denial/imputation of crimes may still fail to meet the necessity/proportionality test and be found unlawful. But this is different than arguing that “slander laws are not likely to pursue any legitimate aims in a democratic society”.

    Secondly, I agree it would be useful if Article 354.1 were considered by the ECtHR. I also agree that the Court might find this provision, or its application in the Luzgin case, incompatible with the ECtHR. For the reasons above, I do not think, however, that it is likely to do so on the ground of the legitimacy criterion (taking also into account that the Court rarely engages with this criterion at any length). Rather, the criterion of legality could be at stake, provided the formulation in 345.1(3) is somewhat clumsy, and, as you rightly say, the criterion of proportionality/necessity. From this perspective, it would be interesting to read the explanatory memorandum to see how the amendment was justified. Would you know whether it is available?

    Thirdly, in reaction to the comments above, I believe it is important to make a distinction between Article 354.1 as such and its application in the Luzgin case. Whether it should be lawful to disseminate knowingly false information about WWII and whether Mr Luzgin did so are two different, albeit not unrelated questions.

    Once again, thank you very much for bringing this case to the attention of the EJILTalk readers.

  6. Gleb Bogush and Ilya Nuzov

    To the person calling himself Nick Notan

    Our statement is not “apparently incorrect”. As explained in the post, the third clause of Article 354.1 doesn’t serve a legitimate state aim as required by human rights law, as it protects a historical myth of no longer existing state, not supported by the international consensus, from legitimate truth-seeking.

    It is true, that the Red Army did not invade Poland on 1 September 1939, but did it two weeks after. Does this statement (taking into account that it was written by another person) constitute ‘dissemination a knowingly false information’ and amount to the denial of historical facts? We don’t think so. The diplomatic exchange between Moscow and Berlin on, before and after 17 September 1939 demonstrate the awareness of both parties and their zeal in ‘solving of Polish question’,

    Your other historical interpretations speak for themselves. With regard to Austria and Czechoslovakia, at least, they deny the facts established by the IMT, that place your comment in the same category as Luzgin’s (re)post and make you responsible under the same clause that you are trying to defend. 

  7. Gleb Bogush and Ilya Nuzov

    To Veronika Bilkova:
    Dear Veronika, thank you for your interest to the post and thoughtful comments. Just a few thoughts in response.
    You’re absolutely right that the trend in the CEE region concerning denial/memory laws is quite far from being obvious. The rationale for criminalization of past atrocities does often involve considerations of historical truth and rights of the victims, but are these ‘legitimate’ within the meaning of, say, ECHR? What are the victims’ rights being protected here? We authors also have divergent views to the extent the criminal law may be utilized to combat denial of historical events.
    But, again, the Russian law, by discriminately criminalizing ‘slander’ against the Soviet Union, departs from any recent European practices (although recent decommunization laws in Ukraine might also fall into this category). To put it simply, it is not aimed to the protection of the historical truth, but protects the historical myth from the truth.
    You’ asking about the explanatory note to the bill. It is publicly available (here, in Russian) : http://asozd2.duma.gov.ru/main.nsf/(ViewDoc)?OpenAgent&arhiv/a_dz_6.nsf/ByID&C00D00C3BE1A8C1C43257C9000363A9A
    and quite illustrative. The text is quite short (less than 3 pages) and simply tells the story of Nuremberg trial and its historical importance. Pointing to the ‘experience of other countries as (France, Germany, Austria etc.-), the note submits that criminalization of ‘rehabilitation of Nazism’ ‘as an international crime’ (sic!) ‘will serve the realization of Nuremberg principles’. The drafters failed to demonstrate any empirical evidence supporting the existence of such denial, any examples of behavior they were willing to criminalize.
    Against such background, the Luzgin case is hardly surprising. Such practice is exactly what the article’s critics have warned about at the time of its adoption. The problem with this law is that denial of Nazi crimes in Russia, if it exists, is not common and is not likely to gain any public support. The real threat however is the denial of other kind – the unwillingness of the Russian authorities to come to terms with the Communist past and to disassociate the Russian people, themselves the ultimate victims of those atrocities, from the Soviet regime.

  8. Nick Notan

    Dear Gleb Bogush and Ilya Nuzov,

    Thank you for finally noticing and admitting the fact that the Red Army did not invade Poland on 1 September 1939. As I understand, this amounts to the effective disavowal of the following statement in your posting “… there is nothing “knowingly false” about Luzgin’s assertion that the Communists and Germans collaborated or invaded Poland starting the Second World War “. Indeed, even although the Communists invaded what had remained from Poland, the invasion started only 17 days after the start of the Second World War. It is very pleasant that we have found some common ground.

    In this connection it should be noted that whether, as you say, the “diplomatic exchange between Moscow and Berlin … demonstrate the awareness of both parties and their zeal in ‘solving of Polish question’ ” is irrelevant to the Luzgin case. The existance of such zeal does not mean that the Communists and Germans invaded Poland starting the Second World War, what has never happened. The Court of course was bound to consider the facts of the case rather than some alternative statements (such as regarding the zeal); and the Court has correctly found that Luzgin’s adopted assertion was incorrect. Of course, the Russian Supreme Court was not involved this time into “rewriting the history” as the title of your posting suggests.

    With regard to the question of legitimacy, it does not seem important that the USSR is not existing. For example, as you may recall, Estonia, Latvia, and Lithuania seek compensation from Russia on the basis that Russia has declared itself as the successor of the Soviet Union after its disintegration in 1991.

    Also, I have not found any support for your following statement in the references which you provided: “one of its declared aims [i.e. of clause 3] was to undermine an emerging historical consensus among other European states, and historians, that the Soviet Union committed aggression, war crimes, and other international crimes during the Second World War”. In your response to Ms. Bilkova, you yourself have noted that the text of the explanatory note to the bill “is quite short and simply tells the story of Nuremberg trial and its historical importance”.

    To conlcude, the situation seems to be much more pleasant than as it is presented in the posting.

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