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Criminalizing History

Legal Restrictions on Statements and Interpretations of the Past in Germany, Poland, Rwanda, Turkey and Ukraine

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Edited By Klaus Bachmann and Christian Garuka

Why do states ban certain statements and interpretations of the past, how do they ban them and what are the practical consequences? This book offers an answer to these questions and at the same time examines, whether the respective legislation was supply-or demand-driven and how prosecutors and courts applied it. The comparison between Germany, Poland, Ukraine, Rwanda and Turkey offers several surprising insights: in most countries, memory law legislation is supply driven and imposed on a reluctant society, in some countries they target apolitical hooligans more than intellectuals or the government’s political opponents. The book also discusses, why and how liberal democracies differ from hybrid regimes in their approach to punitive memory laws and how such laws can be tailored to avoid constraints on free speech, the freedom of the press and academic freedoms.

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Freedom of expression and debates about history in the case law of the European Court of Human Rights: Ireneusz C. Kamiński

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(Ireneusz C. Kamiński)

 

The Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter “the Convention”),255 being the jewel in the crown of the Council of Europe’s treaties, provides guarantees to a set of human right and freedoms considered fundamental to any post-war democratic society and state. Freedom of expression has been ranked as one of those freedoms. Under Article 10 of the Convention, everyone has the right to freedom of expression and this right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers (paragraph 1). Freedom of expression is not absolute though. Public authorities may limit this freedom once three preconditions are cumulatively met (so called three-level test in paragraph 2 of Article 10). First, any limitation must be prescribed by law, which means that it must result from an existing piece of law (understood as legislation and court decisions) which is adequately accessible and formulated with sufficient precision.256 Second, limitation is permitted only when it aims at protecting one of the interests or goods enumerated in Article 10 (national security, territorial integrity or public safety, prevention of disorder or crime, protection of health or morals, protection of the reputation or rights of others, preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary). Third, restrictions can only be accepted when they are “necessary in a democratic society.” In most cases when...

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