Wie man sich in Europa totalit?rer Verbrechen erinnert

Untersuchung, wie man sich in den Mitgliedsstaaten der EU der Verbrechen w?hrend der totalit?ren Herrschaft erinnert.

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This study provides a factual overview of the different measures used in EU Member States in order to deal with the issue of the crimes committed by repressive regimes in Europe. The study does not intend to be an assessment of these regimes nor does it intends to be an evaluation of the measures adopted. It rather aims at exposing a factual overview of the various methods, legislations and practices adopted and used in the Member States to deal with the issue of dealing with the crimes committed by totalitarian regimes.

For this aim, the study revises all relevant issues under the following headings: justice for victims; justice for perpetrators, fact finding/truth seeking, archives, symbolic policies and international instruments. One of the constant elements in the study is that different pieces of evidence could be fit in more than one category (for instance, monuments to victims are simultaneously part of reparations to victims and symbolic policies). This requires adopting a comprehensive reading of the study. The key findings could be summarised in the following points:

1. There is a huge variety of methods and instruments used by Member States for dealing with the memory of totalitarian (and other repressive regimes) crimes

Table 2.2 below summarises the findings along the headlines advanced above. More detailed information can be found in the relative chapters of the study.

In relation with justice for victims, many Member States have adopted extensive measures aiming at rehabilitation of victims, reparation and restitution of property.

Considering all 27 Member States, this seems to be one of the most extensively used instrument for dealing with the past.

Justice for perpetrators has adopted three main forms (for further specifications, see Chapter 5 of the Study): war crimes trials have occurred in a number of countries, in a process that initiated in 1945 and which continues until the present. Additionally, trials on different grounds (for instance, collaboration) have been implemented in a number of Member States. Finally, measures such as purges, lustration and disclosure of identity of perpetrators are also common to a number of cases.

Fact finding/truth seeking has involved some form of official commissions in certain cases and disclosure mechanisms in others. Additionally, access to archives has been regulated in many cases in relation with the opening and regulation of access to archives.

The very large number of memory and awareness initiatives shows the importance of this area but it also shows a wide variety in their treatment among Member States (very clearly, for instance, in the case of educational measures). This creates difficulties for translating into clear cut categories. National remembrance days have different origins although some patterns (for instance, the end of WWII or liberation days) can be simultaneously identified in several Member States. 18 Member States commemorate the 27th January (Holocaust commemoration date) whilst 6 others have chosen other dates for their own Holocaust commemoration. Five Member States commemorate the Study on how the memory of crimes committed by totalitarian regimes in Europe is dealt with in the Member States date of 23rd August proposed by the European Parliament as the day of remembrance of the victims of totalitarian regimes (see table Monuments and memorials exist everywhere but their significance varies widely. Some, as the Auschwitz memorial, have a universal reach but there are quite few examples of monuments with local significance. Educational measures are also very different: some cases have specifically designed topics in the school textbooks.

As for the prevention of the revision of the past, two types of measures are particularly important from the point of view of this study: legislation on denial of crimes (see below) and legislation on prohibiting symbols (8 Member States do explicitly prohibit totalitarian/authoritarian symbols).

International instruments are described in chapter 9 of the study and summarised in tables,, and

Apart from these specific dimensions, it is worth recalling the variety of official and non official bodies involved. For instance, Estonia, Latvia, Poland and Slovenia have created official bodies with general competence across several of the issues examined in this study. Simultaneously, another approach (which may appear conflated with the former) is the creation of specialised bodies in specific policies; thus, not least than 14 countries have created bodies dealing with justice for victims in its different components. As for NGOs, their number is huge as it is their respective area of activity.

2. Each Member State has decided a specific combination of legal instruments and policies to deal with the memory of totalitarian crimes The kind of measures adopted by each Member State is different and depends on specific national circumstances. In particular, the blend of the different instruments (justice for victims, justice for perpetrators, fact finding, symbolic policies, etc.) is nationally-specific. As an example, Spain has implemented a vast policy of reparations for victims but virtually nothing has been done in the arena of criminal justice.

Likewise, removal of symbols of the authoritarian regime was not totally accomplished by the end of 2009.

Even among Member States that have suffered the same kind of regimes, legal instruments, measures and practices may be different as it may be the timing for their adoption and implementation. For instance, purges were explicitly used in Portugal whilst a similar authoritarian regime such as Spain did not implement them during transition. This, of course, does not exclude the existence of some similarities on certain issues.

3. The issue of the denial of crimes committed by totalitarian regime is subject to different legal approaches.

Table 3.3 summarises the findings. 11 Member States have no legislation on the denial of crimes of genocide, crimes against humanity and war crimes.

In Member States which have national legislation on the denial of such crimes, these norms are generally based on the criteria of the type of crime committed: genocide, Study on how the memory of crimes committed by totalitarian regimes in Europe is dealt with in the Member Statescrimes against humanity and war crimes or the perpetrator of such crimes (Nazi or communist regimes).

Member States legislation on denial refers generally directly or indirectly to genocide and/or crimes against humanity as recognised by international law and/or international courts. Certain Member States legislation on denial uses a wider definition of genocide or crimes against humanity than in international law or refers to genocide or crimes against humanity as it is defined in national provisions or recognised by national courts.

Only two Member States (Czech Republic and Poland) have national legislation on denial of crimes which explicitly refers to the denial of crimes by totalitarian communist regime.

According to the information collected, it appears that until now there is no, in the EU, national court decision which sanctioned in a concrete case the denial of crimes committed by totalitarian communist regimes.

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