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:
 Denial of facts, established by the judgement of the International Military Tribunal…,  approval of the crimes adjudicated by said Tribunal, and  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 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”.
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.