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Ukraine: Legislation Introduced on Criminalization of Holocaust Denial

(Sept. 27, 2013) On September 3, 2013, legislation aimed at amending the Criminal Code of Ukraine and criminalizing the denial of the Holocaust was introduced in the Ukrainian legislature, the Verkhovna Rada. (Bill No. 3165 on Amending Article 442 of the Criminal Code of Ukraine Concerning Increased Protection Against Genocide [in Ukrainian], Sept. 3, 2013, Verkhovna Rada of Ukraine website.) If passed, the proposed amendment will make it illegal to manufacture or distribute materials that contain justification or denial of the Holocaust or that misrepresent its scale in order to publicly justify the genocide of the Jews or other crimes against peace and humanity committed by Nazi Germany during World War II. Those found guilty of this new crime will be punishable by imprisonment for a term of up to five years. (Id. art. 1).

The authors of the legislation argue that “denial of the Holocaust or misrepresentation of the facts related to it in order to express loyalty or sympathy to those who committed the crime of mass killing of Jews in Ukraine, which lost between 1.2 and 1.4 million members of its Jewish population during the German occupation in 1941-1944, is a path to a new genocide,” and the state needs to react accordingly to prevent the denial of the Holocaust. (Explanatory Note to the Bill on Amending Article 442 of the Criminal Code of Ukraine Concerning the Increased Protection from Genocide [in Ukrainian], Sept. 3, 2013, Verkhovna Rada of Ukraine website.)

While the Ukrainian Constitution guarantees the right to freedom of thought, speech, and free expression of views and beliefs, the exercise of these rights may be restricted by law in certain cases to protect national security interests, territorial integrity, or public order. (Constitution of Ukraine (1996), art. 34, President of Ukraine official website.)

In 2006, the legislature of Ukraine passed the Law on the Holodomor of 1932-1933. “Holomodor” refers to the artificial famine in Ukraine planned and executed by the former Soviet Union regime under Joseph Stalin. An estimated 10 to 15 million Ukrainians died of starvation as a result of that policy. (Holodomor: The Secret Holocaust in Ukraine, NEW AMERICAN (Feb. 9, 2009).) The 2006 Law recognized public denial of the Holodomor as insulting to millions of its victims and as disparaging the Ukrainian people, and the Law deemed such an act illegal. However, the required amendment to the Criminal Code that would have set criminal responsibility for denial of the Holodomor was not adopted by the Parliament. A move to do so had been initiated by the then President of Ukraine, Victor Yushchenko, but was unsucessful. (Law on the Holodomor of 1932-1933 in Ukraine, art. 2 [in Ukrainian], VIDOMOSTI VERKHOVNOI RADY UKRAINY (official gazette) 2006, No. 50, Item 504.)

Prepared by Svitlana Vodyanyk, Contract Foreign Law Specialist, under the supervision of Peter Roudik, Director of Legal Research.