U POTRAZI ZA PRAVOM MEROM – ZABRANA NEGACIONIZMA U UPOREDNOM EVROPSKOM ZAKONODAVSTVU
FINDING THE PROPER MEASURE – THE PROHIBITION OF NEGATIONISM IN COMPARATIVE EUROPEAN LEGISLATION

Summary/Abstract: The article analyses the manner of implementation of the prohibition of negationism into the legal systems of EU member states. Negationism is an important social topic which describes the phenomenon of denying, condoning or trivializing certain historical crimes, such as genocide. EU adopted a Framework Decision that obligated member states to introduce the crime of negationism in their legislation. The Framework Decision connects negationism with racism and xenophobia and provides for standardized elements of crime. The main hypothesis of the article is that the progressive conceptualization of negationism in the Decision enabled the further differentiation among legislative responses of the member states because of their various historical experiences of certain crimes. The aim of this research is to analyse these differences and point to their consequences. For this purpose, a comparative method of member states’ legislations on negationism and certain characteristic examples from the jurisprudence is used. Member states are grouped by common features that define their approach to negationism. Certain member states were formally noticed for the failure to implement the Decision, while many more were not although at least 6 of them failed completely to implement it. Partial implementation can be found in those member states that prohibit only Holocaust negationism, or implement the Decision but without all the neccessary elements of crime which impact the criminal proceedings. Certain states are going against the purpose of the Decision and equally treat communist and nazifascist crimes. The constitutionality of the ban of negationism has been reviewed due to the limits it places on the freedom of expression. Conclusions confirm the primary hypothesis.

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