Criminalization of denial of the genocide of the peoples of the USSR as an infringement on historical truth

Moskalev Georgii Leonidovich ORCID: 0000-0002-0418-0227 PhD in Law Associate professor, Department of Criminal Law, Siberian Federal University; Associate professor, Shanghai University of Political Science and Law 660075, Russia, Krasnoyarsk Krai, Krasnoyarsk, Maerchaka str., 6, office 4-17 eucaliptus@yandex.ru Other publications by this author

Grounds for prohibiting the denial of genocide as an encroachment on historical truth

With the inclusion of a new Part 3 of Article 67.1 in the Constitution of the Russian Federation in 2020, the task of protecting historical truth received regulatory consolidation. In pursuance of this new provision of the basic law of the country, norms devoted to historical truth began to be actively included in various legal acts. At the moment, they exist in the current decrees of the President of the Russian Federation "On the National Security Strategy of the Russian Federation" dated 02.07.2021 No. 400, as well as "On the approval of the Foundations of State Policy for the preservation and strengthening of Traditional Russian spiritual and moral Values" dated 09.11.2022 No. 809 and many other normative acts.

In our earlier research, based on the interpretation of 23 documents posted in the legislative activity support system, as well as the analysis of doctrinal sources devoted to or affecting the issue of definition, it was found that in its constitutional and legal sense, historical truth is socially significant reliable information about historical events related to the provision of the security of Russia, mainly, but not exclusively, with the history of the Great Patriotic War, consisting of precisely confirmed historical facts ^{[8, p. 1076]}. The definition proposed by us in 2022 has already begun to be used by scientists in their research ^{[2, p. 13; 6, p. 1]}.

At the same time, some authors criticize this definition. In particular, it is proposed not to limit the task of protecting historical truth exclusively in relation to socially significant information: not to differentiate it depending on the significance of a particular event of the past, including in connection with the variability of the relevance of such information to society at various moments of its existence ^{[9, p. 156]}. It is impossible to agree with this remark. Firstly, the basic law of the country itself, in Part 3 of Article 67.1, sets the boundaries for the protection of historical truth, speaking about it in the context of the memory of the defenders of the Fatherland and the feat of the people in the defense of the Fatherland. Thus, the Constitution of the Russian Federation formulates the task of protecting not all historical facts in general, but that part of them that is related to ensuring the security of Russia. Secondly, the state takes under protection not all, but the most important social relations. In terms of criminal law protection, this approach meets the established social grounds of criminalization, which presuppose the prohibition of exclusively those acts that harm public relations and are therefore socially dangerous ^{[10, p. 206]}.

The events of the Great Patriotic War undoubtedly have an increased social significance as one of the most important historical events consolidating society, which is manifested in the legal approach to preserving the historical memory of not only modern Russia, but also the Soviet period of our history ^{[5, p. 15]}. At the same time, socially significant historical facts related to ensuring the security of Russia (protection of the Fatherland) include not only the events of direct military operations. Such a restrictive interpretation is indeed baseless. Thus, in recent years in Russia, special attention of the state and society has been paid to information about the cases of genocide of the peoples of the USSR that took place during the Great Patriotic War. Convincing evidence of this thesis is provided by the data of the official website of the Prosecutor General's Office of the Russian Federation, according to which, from 2020 to the present, such facts have been established by court decisions in 13 subjects of the Russian Federation (St. Petersburg, the Republic of Crimea, Krasnodar and Stavropol Territories, Novgorod, Pskov, Oryol, Bryansk, Leningrad, Belgorod, Voronezh, Smolensk and Moscow region). These court decisions objectify, confirm historical facts and, as a result, act as a prerequisite for establishing responsibility for their denial.

Thus, both legal and social grounds have developed for the existence of a norm on criminal responsibility for the genocide of the peoples of the USSR. Among the first are the norms on the need to protect historical truth. The second is the ability of such actions to harm society due to the dissemination of false information about socially significant historical facts.

Denial of genocide in the current criminal law of Russia

A special part of the current Criminal Code of the Russian Federation does not contain an independent article devoted to the denial of genocide. A norm similar in content is reflected in Part 1 of Article 354.1 of the Criminal Code of the Russian Federation, which, among other things, prohibits the denial of facts established by the verdict of the International Military Tribunal for the Trial and Punishment of the main war criminals of the European Axis countries. However, the verdict of the Nuremberg Tribunal, in principle, does not contain the concept of genocide. Moreover, it could not reflect all the crimes of the Nazis and their allies. Many of them became known relatively recently, as a result of the analysis of archival materials and archaeological research, the data of which were the basis for court decisions on establishing the facts of the genocide of the peoples of the USSR. Thus, Part 1 of Article 354.1 of the Criminal Code of the Russian Federation in the current version does not apply to the denial of these facts.

What is different from the denial of genocide is its justification. The latter does not concern the events of the past, but consists in statements about the correctness of activities aimed at the destruction of a national, ethnic, racial or religious group, as well as the fact that such activities need support and imitation. Such acts committed in public are capable of inciting hatred or enmity against these groups. On this basis, the public justification of genocide is seen as a homogeneous act with justification and affirmation of the need for genocide ^{[11, p. 121]} and can be qualified under Article 282 of the Criminal Code of the Russian Federation in the presence of subjective signs of the composition of this bluntness. In this regard, it seems appropriate to include the public justification of genocide in the approximate list of actions that constitute the objective side of the corpus delicti provided for in Article 282 of the Criminal Code of the Russian Federation, specified in paragraph 7 of the current version of the resolution of the Plenum of the Supreme Court of the Russian Federation "On judicial practice in criminal cases of extremist crimes" dated 28.06.2011 No. 11. At the same time, such a decision will not contribute to the establishment of a ban on the denial of genocide.

Thus, the current criminal law of Russia does not prohibit the denial of genocide, including the genocide of the peoples of the USSR during the Great Patriotic War. Due to the existence of the above-described grounds for criminalizing such an act, it becomes necessary to establish criminal responsibility for its commission. In search of the optimal way to implement such criminalization, it is necessary to turn to foreign experience.

Criminalization of genocide denial in the national law of foreign countries

Many examples of criminalization of genocide denial can be found in the national criminal legislation of European countries (Austria, Belgium, Germany, Lithuania, Luxembourg, Poland, Slovenia, France, Switzerland), as well as in Canada and Israel ^[7]. At the same time, the norms on the denial of genocide in these countries have serious differences.

Thus, in Israel, exclusively Holocaust denial is criminalized. Some authors criticize the establishment of criminal responsibility for the denial of the Holocaust as a specific act of genocide ^{[4, p. 89]}. Some authors see the need to expand the ban by specifying other cases of genocide, such as the Armenian Genocide ^[1]. Others propose to introduce a ban on the denial of any genocide ^[7]. The Spanish legislator did the same, criminalizing in Part 2 of Article 607 of the Criminal Code the denial of any act of genocide that took place in the past. The Luxembourg Criminal Code in Article 457-3 contains a rule similar to the Spanish one, noting at the same time that the facts of genocide denied must be recognized as such by Luxembourg or international courts ^[7]. The given examples of norms on the denial of genocide in general adequately illustrate the approaches of national legislators of foreign countries to solving this issue. The differences consist in the specification of the act (acts) of genocide, for the denial of which criminal liability is established or the absence thereof, as well as in the need for a court decision recognizing the denied genocide as such.

We consider it necessary to support V.N. Dodonov in the fact that "only the interests of protecting the most basic historical values, on which the entire post-war world order is based, are able to justify the intervention of criminal law in that sphere of public life into which, as a general rule, it should not invade" ^{[4, p. 95]}. There is no need to establish criminal liability for the denial of any genocide, since not all such acts that have taken place in history are significant for Russian society today.

The approach that criminalizes the denial of genocide should be recognized as correct only in cases when it has been evaluated as such in a court decision, including a national one. Due to the fact that the term "genocide" is actively used in a non-legal environment (for example, in journalism, politics, etc.), such a decision does not allow the prohibition to be interpreted excessively broadly and to recognize as a crime the denial of actions that are not recognized as genocide within the framework of judicial procedure.

The experience of the Republic of Belarus deserves special mention when analyzing the issue of criminalization of genocide denial in foreign countries. Particular interest in it is connected not only with the political and geographical proximity of this country to Russia, but also with the substantial similarity of protected information about the past. At the beginning of 2022, the Republic adopted the Law "On the Genocide of the Belarusian people", designed to take under criminal protection the historical facts recognized by the state ^{[3, p. 26]}. These facts relate to the commission by Nazi criminals and their accomplices of atrocities aimed at the systematic physical destruction of the Belarusian people, by which the law refers to Soviet citizens who lived on the territory of the Belarusian SSR. Thus, the denial of the genocide of the Belarusian people is part of the denial of the genocide of the peoples of the USSR proposed for criminalization in Russia, which provides a meaningful similarity of the two phenomena. Article 2 of the Law supplements the Criminal Code of the Republic of Belarus with a new Article 1302 "Denial of the genocide of the Belarusian people", which establishes criminal liability for this act, specifying in the disposition of Part 1 of the article as mandatory various options for public dissemination of such information.

The advantages of the Belarusian campaign to criminalize the denial of genocide should include the existence of a legally fixed definition of the genocide of the Belarusian people. The disadvantage should be recognized as the absence in the law of an indication of the facts established in court decisions that constitute this genocide. In addition, singling out the denial of the genocide of the Belarusian people as an independent crime inevitably creates the problem of its differentiation from the crime provided for in Article 1301 of the Criminal Code of the Republic of Belarus "Rehabilitation of Nazism", which has a simple disposition.

Conclusion

Thus, the genocide of the peoples of the USSR during the Great Responsible War, established by a series of court decisions from 2020 to the present, is part of the historical truth, reliable information about past events related to ensuring the security of Russia. However, his denial has not been criminalized to date, despite the existence of grounds for establishing criminal responsibility for this act. The analysis of foreign legislation has shown that the experience of the Republic of Belarus demonstrates the preferred option for the implementation of such criminalization. However, he is not without drawbacks.

The most organic way to establish a ban on the commission of the act in question is the statement of Part 1 of Article 354.1 of the Criminal Code of the Russian Federation in the following wording: "Denial of the genocide of the peoples of the USSR established by the decision of the Russian court, as well as denial of the facts established by the verdict of the International Military Tribunal for the Trial and Punishment of the main war criminals of the European Axis countries, approval of the crimes established by the said verdict, as well as the dissemination of deliberately false information about the activities of the USSR during the Second World War, about veterans of the Great Patriotic War, committed publicly." Simultaneously with the introduction of amendments to Part 1 of Article 354.1 of the Criminal Code of the Russian Federation, it is advisable to adopt a Federal law "On the Genocide of the Peoples of the USSR", in which all the historical facts established in court that have been assessed in Russia as the genocide of the peoples of the USSR should be indicated.