Communism Equals or Versus Nazism?

Introduction

In 2010, Timothy Snyder, a distinguished professor of history at Yale University, published a book, Bloodlands: Europe Between Hitler and Stalin, in which he tells a story of Nazi and Soviet mass killings in the lands between Berlin and Moscow; in his own words, “a history of political mass murder” of fourteen million people who were “all victims of a Soviet or Nazi killing policy, often of an interaction between the Soviet Union and Nazi Germany.” It has received a number of awards, was named a book of the year by some dozen publications, has been translated into more than twenty languages, and was a bestseller in many countries. The book was particularly warmly received in the states of the former Eastern bloc, including in Poland (where it was quickly translated), mainly for one reason: Snyder decided to reveal the magnitude of Stalinist crimes and made them “equal” with the crimes of the Nazis; one self-avowed aspiration of the book was to “bring . . . the Nazi and Soviet regimes together.” And close to the end of the book, he remarked melancholically: “At a great distance of time, we can choose to compare the Nazi and Soviet systems, or not. The hundreds of millions of Europeans who were touched by both regimes did not have this luxury.” Throughout the book, he presented Stalin’s crimes from the perspective of their victims—entire states and nations of Europe—and introduced a narrative that was often unknown to foreign, mainly American readers. In this way, he exposed himself to criticism by those who object to equivalent treatment of both regimes and demand that reference to Nazi crimes, including primarily the Holocaust, be different, or somewhat “privileged.”

Disputes and controversies over this issue have also appeared in the political and legal sphere. They were manifested, for example, in the European Parliament which in April 2009 adopted a resolution establishing the “European Day of Remembrance for the Victims of All Totalitarian and Authoritarian Regimes.” The resolution proclaimed that “Europe will not be united unless it is able to form a common view of its history, recognizes Nazism, Stalinism and fascist and communist regimes as a common legacy and brings about an honest and thorough debate on their crimes in the past century” and expressed the hope that “appropriate preservation of European history and Europe-wide recognition of all historical aspects of modern Europe will strengthen European integration.” It has also specifically referred to communist crimes, saying that “the ultimate goal of disclosure and assessment of the crimes committed by the communist totalitarian regimes is reconciliation, which can be achieved by admitting responsibility, asking for forgiveness and fostering moral renewal.” During the discussion in the European Parliament, its President at the time, Hans-Gert Pöttering, evoked the classic study on totalitarianism by Hannah Arendt which developed “the scientific basic criteria to describe totalitarianism,” concluding that “both totalitarian systems (Stalinism and Nazism) are comparable and terrible.” But opposition to this moral and political equivalence was also voiced. Glyn Ford, the representative of the Party of European Socialists, made a statement which is worth quoting at some length: “While I am in favour of the maximum objectivity in analysing Europe’s history, and while I recognise the horrific nature of the crimes of Stalinist Russia, I am afraid that this resolution has elements of a historical revisionism. . . . I am not willing to equate the crimes of the Nazis, the Holocaust and the genocide that saw six million Jews, along with Communists, Trade Unionists and disabled, die, with those of Stalinist Russia. This political relativism threatens to dilute the unique nature of the Nazi crimes, and in doing so provides an intellectual underpinning to the ideologies of today’s neo-Nazis and fascists.”

The resolution gained important, yet only symbolic, significance, and many states who were earlier the scenes of Stalinist and communist repressions made an attempt to introduce legally binding regulations. However, the European Commission has rebuffed a call by some post-communist states for the European Union (EU) to legislate against the condoning or denial of Stalinist and communist crimes.

Member states of the EU and the Council of Europe (CoE) have a wide discretion to adopt national legislation in a way which reflects their attitudes to the crimes of different regimes. Thus, in Poland it is legally forbidden to “contradict, publicly and contrary to the facts, Nazi crimes, communist crimes, and other crimes against peace, crimes against humanity or war crimes, perpetrated against persons of Polish nationality and Polish citizens of other ethnicity or nationality in the period between 1 September 1939 and 31 July 1990”; such acts of denial are to be subject to a fine and/or imprisonment. In this legal way, Polish legislators equated in the scope of penalization the public dissemination of Holocaust denial and “Katyń denial” (i.e., denying the crime committed in spring of 1940 in the forests of Katyń, where the Soviets murdered almost twenty-two thousand Polish prisoners of war, including military officers, policemen, public servants, and intellectuals).

After the fall of communism, as Central and Eastern European states acceded to the European Convention of Human Rights (ECHR) system, the complex and difficult historical legacy of that part of the continent yielded an important challenge to the European Court of Human Rights (ECtHR). Yet the Strasbourg standards developed in cases relating to the Nazi regime (in the context of freedom of speech, assembly and association, and election rights, on which I will concentrate) have not been automatically extrapolated by the ECtHR into its jurisprudence concerning the communist regime.

This lack of parallelism in the legal treatment of public denial of crimes committed by the two types of murderous regimes forms the starting point for this article. I will demonstrate, by discussing selected leading judgments from the ECtHR, how the Court has so far judged the actions of states taken to re-order their own history, law and social relations after communism. I will consider cases regarding a public display of communist symbols (second section of the article), de-registration of a neo-Communist party (third section), and the denial of the right to stand for election for an ex-activist of a Communist party (fourth section). In each of its parts, the article also seeks to explore whether the same judgments would be delivered in Strasbourg if the case was not about events connected with Stalinism and communism, but with Nazism. This is of course a speculative exercise, but it will be undertaken not in the spirit of second-guessing, of the “what if?” sort, but rather to illuminate and understand the broader philosophy (if there is one) behind the approach by a highly prestigious and authoritative European human-rights adjudicator to recent history, and to various legal means of coping with the past. Broader conclusions regarding the comparative treatment of the two genocidal regimes in recent European history will be offered in the fifth section.

One caveat is needed, right at the outset. The primary aspiration of this article is descriptive and explanatory, not normative; that is, my aim is to depict (what I consider to be) a rather glaring asymmetry in the legal treatment of two murderous totalitarianisms in Europe’s twentieth-century history and to offer some tentative explanations, rather than to moralize about this phenomenon. I will reserve my judgment, and a suggestion for the remedy to this disparity of treatment, to the end of this article but, again, I consider as my aim here to provide a description of an attitude by the top European human-rights court which has not been much noted in the literature, and which may provide (subject to the reservations which I make at the beginning of the fifth section) some resources for broader reflection about unequal judgments about evil pasts in Europe.

Case No. 1: Red Star versus Swastika

In July 2008, the ECtHR issued a landmark judgment in the case of Vajnai v. Hungary. A Hungarian national, Mr. Attila Vajnai, vice president of the Workers’ Party, complained that his freedom of speech was violated when, in 2004, he was convicted of the offence of using a totalitarian symbol by wearing a five-pointed red star on his jacket. It had happened during a lawful demonstration in the centre of Budapest; incidentally, at the former location of a statue of Karl Marx which had been removed by the authorities by that time. Criminal proceedings were instituted against Mr. Vajnai, based on article 269/B of the Criminal Code which bans the use of “totalitarian symbols,” such as a swastika, an SS-badge, an arrow cross, a symbol of the sickle and hammer, or a red star. Mr. Vajnai was convicted both by a district court and, on appeal, by the regional court, and brought an application to the ECtHR, claiming breach of Art. 10 of the Convention (freedom of expression). Before the Strasbourg Court, the Hungarian authorities maintained that they had to counteract the dangers associated with a totalitarian communist regime because “all ideologies of a totalitarian nature (including Bolshevism symbolised by the red star) should be treated on an equal footing.” The government also claimed that “wear[ing] the symbols of a one-party dictatorship in public . . . must be seen as a demonstration against pluralist democracy.”

Controversially, the ECtHR found that the applicant’s right to free speech was violated, and that, twenty years after the fall of communism in Hungary, the authorities’ actions were neither necessary nor permissible in a democratic society. In a crucially important passage of its judgment, the Court refers to the danger involved in a translation of social feelings and opinions into legal regulations, and the argument is so important that it is worth quoting it at some length: “The Court is of course aware that the systematic terror applied to consolidate communist rule in several countries, including Hungary, remains a serious scar in the mind and heart of Europe. It accepts that the display of a symbol which was ubiquitous during the reign of those regimes may create uneasiness amongst past victims and their relatives, who may rightly find such displays disrespectful. It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression. Given the well-known assurances which the Republic of Hungary provided legally, morally and materially to the victims of communism, such emotions cannot be regarded as rational fears.” In other words, the Strasbourg Court decided which “fears” grounded in recent history “cannot be regarded as rational” and therefore undeserving of legal protection. What arguments have been raised to support such a hierarchy of fears?

First of all, the Court said that the measures applied by the authorities against the applicant were not necessary in a democratic state and society, as there existed no real danger of the communist regime being restored in Hungary: “there is no evidence to suggest that there is a real and present danger of any political movement or party restoring the communist dictatorship.” The Court emphasized that the well-known mass violations of human rights committed under communism “discredited the symbolic value of the red star.” In addition, in the Court’s view the symbol could not be understood as exclusively representing communist totalitarian rule. It was clear that the red star also symbolised the international workers’ movement, as well as certain lawful political parties. In the opinion of the Court, the ban on displaying symbols such as the red star in public, when such displays are unaccompanied by the dissemination of propaganda in support of a totalitarian system, and used by a member of a party with no “totalitarian ambitions,” is too severe and for that reason unacceptable. In its judgment, the Court strongly emphasized that the applicant did not promote any totalitarian propaganda, and that the Hungarian Government had not shown that “an actual or even remote danger of disorder triggered by the public display of the red star had arisen in Hungary.”

The facts of the case indeed prove the validity of arguments about the lack of any danger of the communist regime being restored in Hungary, and that there was no dissemination of totalitarian propaganda by the applicant. At the same time, if one considers ECtHR case law on broadly understood activities inspired by National Socialism, one realizes that, unlike in the case of communist ideology, the same Court does not apply a test of whether there actually was a real risk of restoration of the criminal regime based on this ideology or whether there was any public promotion of the totalitarian regime. In all its case law regarding applications from Nazi or fascist groups claiming that their rights under the Convention had been violated, the European Court has consistently refused to accord them such protection: all such activities (whether distribution of racist or fascist pamphlets, or Holocaust denial, or organizing neo-Nazi paramilitary training camps, or any other Nazi activities) have been denied the protection of the European Convention. Thus, it is difficult to imagine that a similar judgment as that delivered in Vajnai would be rendered in a (hypothetical) case concerning the public display of the swastika symbol on the jacket of a member of the far-right National Democratic Party of Germany, speaking at a rally in Berlin.

Consider the case of an Austrian neo-Nazi activist who brought an application based on, among other things, the Convention’s freedom of expression rights (Article 10): the Court spent very little time rejecting the complaint, reciting rather formulaically its previous declaration that “the prohibition against activities involving the expression of national socialist ideas . . . can be justified as being necessary in a democratic society in the interests of national security and territorial integrity as well as for the prevention of crime.” This sounds very much like a categorical “per se” rule rather than a context-sensitive exercise in proportionality of restriction, as a means of promoting a value supported by the Convention. Clearly, the Court has not bothered to enter into any inquiry about the risk of restoration of a Nazi regime in Austria, or the effectiveness of propagating Nazi ideology by Mr. Schimanek, an Austrian neo-Nazi activist. In this reluctance, the Court mirrored the position of the Austrian law itself, which is categorical on prohibition of promotion of any aspects of Nazi ideology and does not allow any exceptions or qualifications: the actual consequences of such activities are simply irrelevant. To reject Mr. Schimanek’s claims based on Article 10, the Court also resorted to the “all-purpose” Article 17 of the Convention (which prohibits any use of any of the Convention’s rights to protect activities which aim at the destruction or limitation of any of the Convention’s rights and freedoms), and again, without any further argument applied to this case, it announced a principle that Article 10 cannot be invoked in a sense contrary to Article 17. But the cursory and perfunctory character of this appeal to Article 17 is confirmed by the fact that, having announced the test (of Art. 17), the Court has not bothered even in one sentence, much less in a more extended argument, to indicate precisely which rights and freedoms were negatively affected by the activities that the applicant asserted were protected by Art. 10, thus foreclosing any discussion of consequences of the sort which it later relied on in Vajnai.

One may of course argue about the meaning of the red star symbol. It is true that it can symbolize the international workers’ movement. However, in the states in which war crimes were committed under this symbol and which were later deprived of freedom for decades, hardly anybody now associates it primarily with the struggle for workers’ rights. Therefore, in this case it seems that the national courts were the ones that should decide on the significance and social implications of public display of that symbol in Hungary. And the Constitutional Court of Hungary has made this position quite clear: all of the symbols banned by the Criminal Code, including the red star, in Hungary at least, “represent the despotism of the State, symbolize negative political ideas realized throughout the history of Hungary in the twentieth century,” and their use “can cause a reasonable feeling of menace or fear based on the concrete experience of people—including their various communities—who suffered injury in the past.” The Constitutional Court established also that allowing unrestricted public use of such symbols would “seriously offend all persons committed to democracy who respect the human dignity of persons . . . and would offend in particular those who were persecuted by Nazism and communism.” In other words, the highest Hungarian tribunal had determined that, in the specific context of Hungarian democracy, the harm to constitutional values arising out of the display of the red star prevails over the harm to freedom of expression produced by the ban.

There is no consensus throughout Europe on the use of criminal law to prohibit totalitarian symbols—so it would seem that this is precisely when the ECtHR would apply a doctrine of “margin of appreciation” and defer to the choice made by the legislature and constitutional court of a member state of the CoE (a court of considerable clout at the time, one should add). And yet it chose to displace the national choice, judging that the doctrine of margin of appreciation should not apply here, using a rather legalistic argument that the prior case law of ECtHR in which margin of appreciation was granted in freedom of expression cases never dealt with the “extent of State discretion in restricting the freedom of expression by politicians.” In other words, it was the status of Mr. Vajnai as a politician which served to deny Hungary the margin of appreciation and the generous zone of discretion in regulating restrictions of the use of communist symbols. The thinness of this argument, in the context of the huge function that it performed, seems striking and confirms the initial hypothesis of this article, that the Strasbourg Court applies double standards to Nazi and to communist symbols.

Case No. 2: Neo-Communists as a Political Force

Under the decision of Romanian courts, the Party of Communists (Partidul Comuniştilor [Nepecerişti], PCN), an organization established in 1996 with the statutory aim of protecting workers’ rights and “sustaining the principles of the communist doctrine,” could not be registered because of the fact that it would aspire to overthrow the government and democracy and in this way re-establish the communist system.

The complaint brought before the Strasbourg judges in the case of Partidul Comuniştilor (Nepecerişti) and Ungureanu v. Romania concerned the allegation that the refusal to register the PCN as a political party had infringed their right to freedom of association, as guaranteed by Article 11 of the Convention. A Bucharest court of appeal refused registration of the party in August 1996, and the party’s application for reversing this decision was quashed by the Prosecutor-General of Romania, so the party—having exhausted domestic remedies—lodged an application to the ECtHR. The refusal to register the party in Romania was based on the legislative decree (which at the time controlled the question of registration of political parties) which provided, among other things, that “political parties may be freely founded in Romania, with the exception of fascist parties or those that spread ideas contrary to the constitutional and legal order.” The Court analyzed the documents which the national courts used as the basis to refuse registration of the party, including the political program of the PCN dated March 1996 which stated, among other things (and in the Court’s summary), that “its aims were to defend workers’ interests and to adhere to the essence of communist doctrine . . .” and that it “deplored what it called the antisocial and anti-working-class direction in which Romanian society has moved since the overthrow of the previous regime in 1989.” Finding that Article 11 was violated by Romania, the Court emphasized that the program does not “contain any passages that may be considered a call for the use of violence, an uprising or any other form of rejection of democratic principles—an essential factor to be taken into consideration—or for the ‘dictatorship of the proletariat.’” Thus, the Court stated that a mere reference, either through the name or program of the organization, to the heritage of communism, could not be synonymous with the rejection of the principles of democracy, although communism, which prevailed in Romania for a few decades, rejected and contradicted democratic rules. To be sure, the Court admitted that the anti-democratic character of a party may be revealed by its actual actions rather than a program, the latter serving to conceal rather than reveal the real nature and aims of the party, and so the program must be always confronted with the actions. And yet, in this particular case, such a confrontation was not possible since the party’s “application for registration was refused and it consequently did not even have time to take any action. It was thus penalized for conduct relating solely to the exercise of freedom of expression.” And since earlier in its reasoning the Court established that in this case the claims based on freedom of association (Article 11 of the Convention) must be considered in the light of freedom of expression (Article 10), which in fact imposes a stronger scrutiny on legal interferences with the Convention’s right for the simple reason that “expression” should enjoy higher protection than “action” (such as forming a political party), it is in this context that the Court invoked an oft-quoted formula that protection based on Article 10 also applies to expressions “that offend, shock or disturb”—this argumentative strategy which made it easy for the Court to find, unanimously, a breach on the part of Romania. In addition, an appeal to Article 17 (which, as we saw in the previous part of this article, was so effectively used to endorse Austria’s interference with neo-Nazi expressions and actions) was summarily and curtly rejected on the basis that “nothing in the constitution and programme of the PCN warrants the conclusion that it relied on the [European] Convention [of Human Rights] to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it.” It is an extraordinary argument: quite obviously the PCN did rely on the Convention’s rights (Art. 10 and 11), but whether its reliance on freedoms of speech and of association could lead to the destruction of other rights must be a matter of argument rather than a mere assertion.

The position of the Court expressed in the words “The Court is also prepared to take into account the historical background to cases before it, in this instance Romania’s experience of totalitarian communism prior to 1989. However, . . . that context cannot by itself justify the need for the interference” is of key importance to the topic of this article. According to James Sweeney, “This is an unusually frank—and clearly identifiable—exchange between the European Court and the Respondent State on how a democracy might defend itself from anti-democratic forces in a transitional context.” Sweeney’s comment is very significant. In fact, the European Court displaces the state’s judgment about the most effective ways of disarming the danger coming from non-democratic actors having their pedigree in the ancien régime.

Again, it is difficult to assume that the same conclusion could be formulated in Strasbourg in a similar case instituted against Germany or Austria, even though no doubts can be raised as to the completion of the transitional period (consolidating democracy after the Second World War) in those countries. So far this historical context in the two countries blemished with Nazism has helped the Court to accept far-reaching restrictions of individual rights and freedoms by national authorities. The rulings concerning Austria and its Prohibition Act (Verbotsgesetz), under which any actions based on the idea of National Socialism were severely penalized, can serve as examples. Although this concept was not clear and not sufficiently specified, Strasbourg accepted that “actions” comprised such activities as singing Nazi songs or using names deriving from the times of the Third Reich, and pointed out that it should be assumed that the Austrian legislators had a legitimate right to include in this definition all activities of this kind.

It is significant that the margin of appreciation granted to Austria regarding legislation, and application of legal regulations governing its dealing with Austria’s pro-Nazi past, has been consistently broad whenever Strasbourg judges considered national regulations arising from coping with the Nazi past. As noted by Paul Harvey, in the context of Strasbourg jurisprudence on cases about the far right, the Court “has been much more ambivalent in its attitude to anti-democratic actors coming from the other end of the political spectrum.” When discussing the Court’s decision in Rekvényi v. Hungary (in which the Court upheld restrictions on access to the police and civil service for communist sympathizers), Harvey noted that the “Court was at pains to point out that the contested restriction was permissible only as a democratization measure which would imply that it could only apply for a limited time,” while no such condition have been made in similar cases concerning Nazi and fascist sympathizers in the other members of the CoE.

Case No. 3: Election Rights and the Communist Past

The case of Ždanoka vs. Latvia is perhaps the most interesting and most controversial of all the cases discussed here. The facts of the case were as follows: Ms. Tatjana Ždanoka, a Latvian politician, was disqualified from standing for parliamentary election on account of her former membership in the Communist Party of Latvia (CPL) which, during the Soviet period, was a regional branch of the Communist Party of the Soviet Union. After Latvia regained its independence on 4 May 1991, the CPL was declared unconstitutional on 23 August 1991, with a stipulation that persons who had participated in the activities of the CPL after 13 January 1991 (the date of the attempted coup against the government of independent Latvia by several organizations, including the CPL) would be ineligible to stand for political office. Ms. Ždanoka was found to indeed have been involved in CPL activities after 13 January 1991 and on this basis was disqualified from standing in the parliamentary elections of 1998, and in addition lost her seat on the Riga City Council, which she had already won in the municipal elections of 1997. This was repeated in the 2002 parliamentary elections: Ms. Ždanoka was placed on the list of candidates by an alliance called “For Human Rights in a United Latvia” but was removed from the list by the Central Electoral Commission on the same grounds as before (incidentally, the alliance obtained eventually nearly 19 percent of the vote and won twenty-five seats in Parliament, so her chances of getting into the Parliament were quite high). Thus, the complaint concerned an alleged violation of the right to stand for election (under Article 3 of Protocol No. 1 to the ECHR), which resulted from the applicant’s disqualification. In support of her claims, she argued that “membership of the CPL did not [itself] suffice to prove a lack of loyalty towards Latvia,” that the CPL “could not be accused of having attempted to overthrow the democratic regime,” and that “nothing in her personal conduct since the alleged facts justified the restriction on her electoral rights.”

The ruling of the First Section of the ECtHR (“Ždanoka I”) recognized the violation of the applicant’s rights—though not unanimously. The majority of the Court has stated (uncontroversially) that Article 3 of Protocol No. 1 “implies the personal rights to vote and stand for election,” and any restrictions must be proportionate to legitimate aims. Among those aims are “punitive aspects,” but in case of Ms. Ždanoka the majority of the Court concluded that her “individual conduct in 1991 was not sufficiently serious to justify her disqualification from standing for office at present.” Nor was her current conduct sufficient to disqualify her because, even if the government disliked her ideas and activities, “they are not prohibited by the Latvian legislation, and . . . [Ms. Ždanoka] has never been investigated for or convicted of any offence.” In addition, the majority found Latvia in breach of Article 11 of the Convention (freedom of association), again, on the basis of lack of proportionality of the means (disqualification on account of her active participation in the CPL “more than a decade after the events held against that party”) to the aim pursued by the legislation.

So the “militant democracy” arguments by the Government of Latvia were flatly rejected by the ECtHR majority in the judgment of the First Section. There were two strongly worded dissenting opinions though: by Judge Bonello who argued for a broader “margin of appreciation” which would take seriously the national authorities’ fears that “by allowing militant non-democrats to stand for election shoulder to shoulder with those who, for the fulfilment of democracy, had been prepared to pay the ultimate cost, would destabilize the very moral authority of democracy itself”; and also by Judge Levits who compared the Latvian regulation with various other forms of electoral disenfranchisement in democratic states, and who asserted that the states should have a wide margin of appreciation in this area, and that “the [European] Court should respect the deeply political character of this problem, instead of substituting itself for society and delivering a judicial decision on this issue.”

But this was not the last word of the European Court on the case of Ms. Ždanoka. The Grand Chamber of the Court, in pursuance of a quasi-appellate procedure, admitted the arguments of Latvia, and held that there was no violation of Article 3 of Protocol 1 (without examining the claims under Articles 10 and 11 which it found unnecessary to do). It decided that with incorporation of such a restriction, Latvia tried to protect its young democracy against persons who had actively opposed it when the state was leaving the yoke of the former Union of the Soviet Socialist Republics. The Court ruled that “while such a measure may scarcely be considered acceptable in the context of one political system, for example in a country which has an established framework of democratic institutions going back many decades or centuries, it may nonetheless be considered acceptable in Latvia in view of the historic-political context which led to its adoption and given the threat to the new democratic order posed by the resurgence of ideas which, if allowed to gain ground, might appear capable of restoring the former regime.” Thus, the Latvian state was found to be better equipped to assess the risk that the permission to stand for elections given to persons such as the applicant would entail, and that the national authorities should “be left sufficient latitude to assess the needs of their society in building confidence in the new democratic institutions.”

The judgment was not unanimous. In dissenting opinions, individual judges opposed the conclusion of the Court, arguing that the rights of the applicant had been violated. Some based their arguments mainly on the belief that even if similar restrictions had to be imposed during the difficult times of transformation, they were no longer necessary at the time when Latvia became a member of the family of democratic states. Judge Rozakis, for one, believed that disqualification of Ms. Ždanoka served no useful purpose in terms of protection of a democratic system because it was based on her “past attitude” and not on any imminent threat that she may have posed to the democratic governance of Latvia at the time of her disenfranchisement. Judge Zupančič stated commonsensically though perhaps irrelevantly in this particular case that “people cannot be prevented from actively participating in the democratic process simply because they are likely to be elected,” and implied that the disqualification of Ms. Ždanoka was triggered by a majority’s intolerance towards the Russian-speaking minority in Latvia. And Judges Mijović and Gyulumyan in a joint dissenting opinion emphasized that such restrictive measures, as in this case, “should be temporary to be proportionate,” while here the rule was of indefinite duration: “More than ten years after its initial concerns, we cannot accept that the Latvian parliament still believes that former CPL members are a threat to democracy.”

Again, it is worth noting that a similar argument has not been used in the 1979 decision on the inadmissibility of a complaint about perpetual deprivation of the right to vote of a person who had been convicted for collaboration with the Nazi occupiers. Although the ban was still in force more than thirty years after the end of the Second World War, when Belgium (the state against which the complaint was lodged) was a stable, strong Western democracy, it was decided that “the purpose of legislation depriving persons convicted of treason of certain political rights and, more specifically, the right to vote [was] to ensure that persons who have seriously abused, in wartime, their right to participate in the public life of their country are prevented in future from abusing their political rights in a manner prejudicial to the security of the state or the foundations of a democratic society.” The Commission decision contained literally no argument: it simply “noted” (and endorsed) the argument by the Government of Belgium, adding that from a legal point of view, the case had to be considered under Article 3 of Protocol 1 in conjunction with Article 14 of the Convention (prohibition of discrimination) and then summarily concluded, again, without any further argument, that “the different treatment imposed on the applicant in the matter of voting rights in no way violates Article 14.”

In his already-mentioned dissenting opinion to the judgment in the Ždanoka case, Judge Zupančič said clearly that it is not the past of the applicant but her possible future political activity that was a thorn in the flesh of Latvian authorities, and the decisions of the latter were infused with reluctance and xenophobia expressed in Latvia towards the thirty percent minority of Russian-speakers. Noting with reference to the Court’s prerogatives that “historical and collective aspects of the situation are beyond the scope of our jurisdiction,” Zupančič also asked rhetorically: “are we here to correct the historical wrongs?” However, when analyzing case law on the Nazi past of Europe (but also some other historical contexts), it is difficult not to notice that very often the Court did assess and analyze those “historical and collective aspects of the situation,” to use the language of Judge Zupančič. In one of the Holocaust denial cases, the Strasbourg Court determined that it was neither arbitrary nor unreasonable to consider the pamphlets displayed by “negationists” of the Holocaust as a defamatory attack against the Jewish community and against each individual member of this community, and it added: “By describing the historical fact of the assassination of millions of Jews, a fact which was even admitted by the applicant himself, as a lie and a Zionistic swindle, the pamphlets in question not only gave a distorted picture of the relevant historical facts but also contained an attack on the reputation of all those who were described as liars or swindlers.”

The proposition that the Court (any court, perhaps) is not in the business of “correcting the historical wrongs,” to use again Judge Zupančič’s own words, has an immediate attractiveness to it: if the society through its legislation, education and social policy is unwilling or unable to bring about compensatory or retributive justice and give some compensation or at least psychological protection to the victims of past wrongs and their descendants—there is very little that courts can do. Courts operate at the margins of a policy, and at the end of the day only give concrete effect to the choices made by other, more powerful, actors. But one must not protest too much: after all, courts, in a very literal sense, are in the business of “correcting wrongs,” though in individual cases rather than “historical wrongs” at a societal or even Europe-wide scale. But note an irony: in the Ždanoka case, the European Court, in the end, decided to defer to the political judgment of Latvian authorities regarding how to deal with the “historical wrongs,” while the dissenters, including Judge Zupančič, proposed to displace the judgment of national authorities. The apparent modesty and self-restraint of a judge protesting against courts “correcting historical wrongs” is illusory: the courts may be incapable of doing it, but legislators occasionally may at least try. Whether the courts, and in particular the European Court, should have a large discretion in displacing those choices is precisely the main issue in this debate.

For us, however, an even more important issue is the message about the nature of historical wrongs and the proper remedies for them which emerges from the European Court’s treatment of Nazi and communist wrongs. As the “Ždanoka” saga indicates, the top European judges have grave doubts about restricting ex-Communist’s political rights in new, transitional democracies: the doubts indicated by the first Ždanoka judgment (by the First Section of the Court, which as we have seen, found breach of the Convention in Latvia’s measures) and in powerful dissenting opinions by four ECtHR judges in the Grand Chamber judgment. I am not saying that they are necessarily wrong: they all produced strong, persuasive arguments which, if they figured in legislative discussions, would certainly have to weigh heavily on the outcome. But the point I am making is that in the case of post-communist “militant democracy” those judges (the majority on the first decision, the dissenters in the second one) were unwilling to accord the state the sort of “margin of appreciation,” or deference, that the Court has always and without any self-doubt or hesitation accorded countries such as Austria or Germany regarding their “militant democracy” measures against neo-Nazis, Holocaust-deniers, etc. The contrast between these two types of cases is striking, all the more so since the “old members” of the CoE, being well-consolidated democracies, could not argue in defense of those measures by pointing at a present and real danger of restoration of a Nazi regime in their territory. Their eagerness to ban neo-Nazi propaganda and activities was enthusiastically and without much discussion endorsed by the European Court—in full contrast to the Court’s treatment of national measures undertaken in post-Communist countries, as the Ždanoka case well illustrates.

General Observations: The Court and European Memory

The vantage point of the ECtHR has clear limits as an insight into the stance that Europeans, or European lawyers, or official European legal systems, adopt vis-à-vis dealing with the past. For one thing, the ECtHR is not a European constitutional court—not quite yet, anyway, but a hybrid institution which merges quasi-constitutional aspects with those of an international super-appellate tribunal. While there has been a lively discussion among ECtHR experts and scholars about whether it has become or is becoming a quasi-constitutional court for Europe, the jury is still out. A realistic assessment should be that, at best, this “constitutionality” of the Court is at present only in an embryonic form. The Court’s judgments are in principle valid only inter partes (i.e., towards the states which are parties of the dispute and not towards all other member states of the Council of Europe); they are not effectively and directly enforceable even towards the state found in breach of the Convention, relying largely on the goodwill of the breaching state and the political arms of the CoE such as the Political Assembly and the Committee of Ministers; the Court largely avoids finding the laws (as opposed to specific decisions) in violation of the European Convention, etc. As a result of these various institutional indicia which distinguish it from a constitutional court par excellence, it displays a large degree of deference (a “margin of appreciation”) towards domestic legal systems: preservation of its legitimacy largely depends upon it being seen as respectful of national choices, and intervening only when an unquestionable Europe-wide consensus on a given matter can be shown to have been violated by a national decision, with all the available domestic remedies having been exhausted by the claimant. As a result, judgments of the Court (and also concurring and dissenting opinions, which are very significant as potential indicators of the emerging doctrines of the Court) may be seen as the result of a mixture of the judges’ authentic legal opinions and their conviction about the Court’s limited legitimacy for sitting in judgment of national legal regulations: Strasbourg judges tell us not only what they think about the proper legal standards to be applied in a case, but also about how far they are authorized to push their espoused legal standards upon a recalcitrant state. To put it in another way, standards emerging from the ECtHR are a mixture of European first-order legal standards (the only standards of interest for the purpose of the discussion in this article) and of second-order standards about judicial behavior in Strasbourg (which should be disregarded here, as irrelevant to the topic). Nevertheless, disentangling the former from the latter is not always easy because the argumentative quality of Strasbourg judgments and opinions is not always of the highest order.

Second, the ECtHR often changes its jurisprudence. It has even elevated this property of changeability into a virtue by describing the Convention as a “living instrument” which “must be interpreted in the light of present day conditions” rather than remain static. Also, through a doctrine dubbed as “the principle of effectiveness” which requires that the Convention, as interpreted by the Court, should be understood so as to “make its safeguards practical and effective,” the Court has progressively expanded the protection of rights beyond its original understanding of the articles of the Convention. Thus, it is often difficult to indicate here a coherent and stable approach by the European Court.

On the other hand, the judgments of the Court, regardless of their intellectual and juridical value, shape constitutional and legal discourse in Europe to a very large extent: the Court enjoys a high reputation, ongoing political support by governments and legislatures of its member states (which at least pay lip service to the importance of the Court as a centerpiece of the ECHR system), and also benefits from synergy with other branches and institutions of the Council of Europe, such as the Parliamentary Assembly or the influential and highly esteemed Venice Commission. Consequently, the Court influences the way in which European lawyers, politicians, and opinion leaders, and subsequently European societies, think about the proper instruments of, and limits to, legally coping with the past in the collective memories of European societies. And there is no escaping the conclusion about a difference in its treatment of the Nazi and of the communist past.

This difference calls for an explanation, with the necessary caveat that “to explain is not to justify.” I do not see as part of my aspiration here to rationalize, much less to provide a defence of, the differential attitude of the ECtHR towards dealing with the Nazi past and dealing with communism in its freedom of expression and freedom of association case law. Nor do I necessarily wish to deplore and condemn such “double standards,” if they are such: some of the differences in treatment belong to a category of relevant distinctions based on a rational application of tests such as the capacity of a given expression to promote hatred, violence etc. It may well be that, in the cases before it, the Court encounters mainly Nazi-related speech which, in the context, was very likely to promote hatred and cause violence, and on the other hand, it was confronted with communist-related speech which was highly unlikely to produce such consequences, namely, the consequences which must be considered when the Court engages in proportionality analysis, that is, when it compares the harm of intrusion upon a Convention right with the benefits of interference in terms of the other rights and interests protected by the Convention. A test which is often applied is the degree of actual danger stemming from a promotion of one or another criminal ideology in a specific time and specific country: these are highly contextual judgments, best left to the nation-states, and those contextual differences may account for a differential treatment of two types of troubled legacy: communism and Nazism.

But when all is said and done, the deep differences in approaches remain. No matter how much we control for the context-sensitive differences, there is no denying that in scrutinizing the measures of so-called “militant democracy” in the Council of Europe’s member states, the ECtHR is more lenient towards restrictive regulations addressed against Nazi speech or associations than towards their communist counterparts. In the case of post-communist transitional democracies, the Court seems to perceive such measures as instruments of “self-consolidating democracy” rather than “self-defending democracy.” One may argue—and while it is a controversial opinion, it is not evidently absurd—that consolidated democracies (such as today’s Germany or Austria) should be more reluctant in allowing hurtful and distasteful speech or organizations than democracies still in transition from authoritarianism because in a transitional period the values of unfettered pluralism are important as a pedagogical instrument in learning what democracy is all about. This is a view expressed precisely in the context of discussing such democracy-protecting restrictive measures as party closures and other limits on extremist parties by Eva Brems: “one may . . . argue that in states where democracy is new, there should be less room for restrictive measures, because those give the wrong signal. The first few years of democracy after transition have an educational function, and radical measures such as party closure may give a repressive impression and suggest that in terms of political freedom, the new regime is not all that different from the old one.” I do not claim that it is a compelling argument, because certainly an opposite judgment can be also defended, but only that there is nothing absurd about it. And yet, leniency in judging the restrictions on, and consequently this higher degree of reprobation towards, Nazi expressions and movements than towards communism, is emblematic of something rather fundamental—and troubling.

With all certainty, the crimes of Nazism are an element of historical narration and identity of Western Europe which created the European system of human rights protection: establishment of the Council of Europe with the ECHR system as its centrepiece was a response to the atrocities of the Second World War, and these atrocities were, in the collective memory of Western European nations which founded the system, largely confined to those inflicted by Nazism and fascism. The collective cry “Never again!” meant “Never again Hitler” and “Never again Mussolini”—but not “never again Stalin.” The crimes of Stalinism and communism have remained, to a large extent, beyond this circle of remembrance and identity which sets out the framework for the sense of community. This is seen also in the political, non-legal dimensions, for instance, when the European leaders are confronted with attempts to “rehabilitate” in a public sphere any aspects of Nazism. Consider the immediate and harsh reaction to the possibility of entrance of Jörg Haider’s Freedom Party into a governing coalition in the beginning of 2000 in Austria: one of the main reasons why Haider was considered as being beyond the pale of European political acceptability were some of his obviously intolerable expressions of praise for ex-Nazi soldiers. This, according to most accounts, rather than his attitude towards migrants and Eastern enlargement of the EU, made him a political outcast, and Austria—a pariah within Western Europe. But no such reaction happened, indeed, no such reaction would be even conceivable, as a result of the inclusion into the governing coalitions of those post-communist parties in Central and Eastern Europe which espouse, publicly and officially, some nostalgic and positive opinion about the period of communism. Political nostalgia towards Nazism is (as it should be) an absolute taboo within mainstream European politics; political nostalgia towards the communist past is, at most, an eccentricity.

One possible and tempting explanation of this discrepancy (and indeed, for its defense) might be along the long-rehearsed discussions about the comparative gravity of crimes committed by two murderous regimes: German Nazism and Soviet Stalinism. But this temptation should be resisted. There have been interminable disputes about whether the two regimes were “equally evil” or whether, with all the condemnations it deserves, Stalinism has some redeeming features, perhaps by being a deviation from an otherwise laudable (according to some) ideology, as opposed to Nazism, which was unquestionably evil both in its theory and in practice. But this is a non-starter, and neither the Court has engaged (or should have engaged) in such doubtful exercises of “grading” different criminal regimes, nor is it necessary for a Court’s observer to indulge in them, when assessing the Court’s case law on the subject. All that matters is that both these types of regimes were “beyond the pale” under even most basic, minimal standards of acceptability, i.e. that they were both below a certain threshold—and for a legal assessment of national measures dealing with the past, it really does not make any difference how far below that threshold each of the systems was. One may say that from the point of view of legal characterization (as opposed to historiographical, moral or political judgments), their viciousness was a “range property,” as John Rawls helpfully defined it (though in a totally different context). It is like being within a circle (all points in a circle are equally in a circle) or “residing in France” (whether you reside in Paris or in Menton, you are “equally” in France): differences of degree (for instance, in terms of being close to the center of a circle or the capital of a country) do not affect the property of being within a range. Rawls used the concept of “range property” to determine conditions for the capacity for moral personality; we may use the concept to determine the authority of a post-totalitarian state to deal with the remnants of the past. So we do not need to measure and compare the wickedness of Nazism and communism in order to establish that they both committed unspeakable, mass harms to the peoples who were under their control.

Another reason for a differential treatment by the ECtHR may be that while Nazi mass crimes (at least some of them, including in particular the Holocaust) clearly amounted to genocide in the meaning of international law, such a characterization of Stalinist crimes is more controversial: even when Stalin came closest to “genocide,” as in the case of the Ukrainian artificially induced famine in which more than three million people died, there may be a genuine disagreement among lawyers whether it met the strict criteria of genocide (understood as an attempt to eliminate the whole class of people) or rather a crime against humanity not captured by the term ”genocide” sensu stricto. Similarly, even among Polish scholars and politicians there is a disagreement about whether the crime committed by KGB at the order of Stalin in Katyń can be characterized as the case of “genocide,” and it seems that the “pro-genocide-characterization” advocates are largely moved in their argument by moral and political considerations rather than strictly legal ones. But if this were a rationale for the differential treatment of Nazism and Stalinism, it would be rather unconvincing: legally speaking, there is no “hierarchy” of gravity within the category of crimes against humanity. So for the ECtHR to rely, even tacitly, on such a hierarchy would raise a serious and compelling legal objection.

Yet another reason for the differential treatment may lie in the length of the passage of time: while transition from Nazism and fascism to democracy happened some seventy years ago, the fall of communism took place only twenty-five years ago, and in a number of post-communist states, the vestiges of the ancien regime (and also persons active then) still remain in public view. This may make the ECtHR more reluctant to approve strong measures of transitional justice on the basis that they are likely to provoke more divisiveness in the societies in CEE. And relatedly, the fact that the “communist” system lasted, in practice, so much longer than Nazism (respectively, seventy more years compared to twelve), communism contained a spectrum of practices in varying time and across the countries of Warsaw Pact: mass crimes comparable to those of Hitler were committed only in its most cruel, Stalinist version of a “dictatorship of proletariat.” A tendency to use the term “communism” in a non-differentiated way, and as equivalent of “Stalinism,” should be of course resisted, though the Court’s asymmetry in treatment of Nazism and Stalinism cannot be really explained by this laudable semantic consideration.

In the end, the most convincing explanations for this “discrepancy of memories” lies in the constellation of powers resulting from the outcome of the Second World War: the Soviets were among the victorious forces. In this sense, the widespread silence about Stalin’s crimes was a classic case of “victor’s justice”: Stalin succeeded in shaping the terms of discourse about the Second World War, and also the circumstances leading to it as well as its immediate political aftermath. The Allied Powers were thus not eager to condemn Stalin’s crimes. Indeed, this reluctance had been prefigured already in the closing years of the Second World War, when the United States and the British preferred not to raise the issues of Stalin’s crimes, such as the mass murder in Katyń: “The Red Army was winning the war against the Wehrmacht on the Western front, and Stalin was a more important ally than any Polish government. It was more comfortable for the British and American to accept the mendacious Soviet version of the Katyń massacre and blame the Germans.” The effects of this attitude persisted well beyond the end of the war even though its initial reasons evaporated. Another reason could be also seen in the mobilization and influence of West European pro-Marxist groups which promoted socialist slogans under the banners of the red flag and which fought for “equality and social justice.” Although West European socialism and Marxism renounced the “perversions” of the Soviet socialism, it hardly ever spoke at the same time about Stalinist and communist crimes. In consequence, an “airbrushed” picture of communism functions in the general social environment.

In this way, names such as “Katyń” never penetrated the “western” consciousness to the same degree as, for example, “Kristallnacht.” In a 2007 survey of students aged fifteen to twenty, the Institute for Information on the Crimes of Communism in Sweden found that 90 percent of those surveyed had never heard of the Gulag, whilst the same number were well informed about Auschwitz. In addition, 40 percent believed that Communism had contributed to increased prosperity in the world. Therefore, the feeling of bitterness and injustice which can be felt particularly by those for whom the symbols of the red star or the hammer and sickle mean only crime, persecution, torture, deprivation of one’s dignity, or loss of family members is, to a large extent, understandable.

Conclusions

In this article, I have reflected upon the different status of the Nazi and communist pasts—and in particular, of Nazi and communist mass crimes—in the collective European memory, using only one type of evidence, namely the case law of the ECtHR when dealing with legal issues embedded in the recent past. Accession of all post-communist states (with the exception of Belarus) into the Council of Europe system gave the Court in Strasbourg an opportunity to establish a legal standard of how to deal with matters such as the public presence of communist symbols and insignia, (de-)registration of neo-Communist parties, and the relevance of past membership in Communist parties for an exercise of electoral rights in a newly democratized state. All these issues had had their equivalents in the earlier case law of the same Court which arose from the Nazi past in other countries, such as Germany, Austria, and Belgium. And yet the contrast is stunning: the past cases yielded by Nazi history had displayed none of the hesitation, doubts, or straight rights-protective attitudes (resulting in findings that a state breached the relevant Convention rights) that have been shown in the “post-Communist” cases. I have offered some explanations for the contrast. Some are “internal” to the Court’s methodology (such as its doctrine of the “margin of appreciation,” or deference towards national regulations), but some reflect a broader dualism in the European collective memory. This shows that the post–Second World War mood of unwillingness to treat Stalin’s crimes on par with those committed by Hitler has a troublingly persistent quality.

This unwillingness finds its expression in the double standards used by the ECtHR when it deals with the European states’ attempts to cope with their pasts, and to deal with the remnants of the past persisting in today’s public life. The way of overcoming those double standards, as I hope it is by now clear from this article, is not by scrutinizing Germany, Austria, etc. more harshly when they attempt to deal with Holocaust denial and similar actions related to their unwholesome past but rather to accord more “leniency”—more confidence and trust in the judgment by national authorities—to post-communist states when they legislate about conduct and expression related to their own history.