Memory Laws in the Baltic States

Dovil˙eSagatien˙e · March 2024

Memory Laws in the Baltic States

A report by the research consortium

“The Challenge of Populist Memory Politics for Europe: Towards Effective Responses to Militant Legislations on the Past (MEMOCRACY)”

University of Cologne

T.M.C. Asser Institute

Polish Academy of Sciences

University of Copenhagen

Dovil˙eSagatien˙e · March 2024

ISBN: 978-87-94550-00-1

https://memocracy.eu/@memocracy_team

Graphics: Signs & Wonders

A case study by the Research Consortium ‘The Challenge of Populist Memory Politics for Europe: Towards Effective Responses to Militant Legislation on the Past (MEMOCRACY)’ (University of Cologne, T.M.C. Asser Institute, Polish Academy of Sciences and University of Copenhagen).

Dr Dovile Sagatiene is a postdoctoral researcher at the MEMOCRACY Project (Volkswagen Stiftung, 2021–2024), based at the Centre for Military Studies, Department of Political Science, University of Copenhagen in Denmark. Her PhD dissertation about the Soviet courts of general jurisdiction in occupied Lithuania (defended in 2013 at Mykolas Romeris University, Lithuania) focused on Soviet judiciary problems. Her previous post-doc as a Fulbright Scholar at the Harriman Institute in Columbia University (New York, USA) in 2019–2020 explored the Soviet repression in Lithuania in the framework of the genocide concept. Her most recent publications addressed the Soviet genocide debate on a legal level (“The Debate about Soviet Genocide in Lithuania in the Case Law of the European Court of Human Rights”, Nationalities Papers, 2020; “Deconstruction of Soviet Deportations in Lithuania in the Context of the Genocide Convention”, International Criminal Law Review, 2021) as well as the transformation of memory regarding the Soviet crimes in Lithuania, and more broadly in the Baltics and eastern Europe, as an interlinked political and legal process (“The Transformation of Lithuanian Memories of Soviet Crimes to Genocide Recognition”, International Journal of Transitional Justice, 2022).

Acknowledgements. Special thanks to Professor Maria Mälksoo, MEMOCRACY Principal Investigator (University of Copenhagen, Denmark), who invested enormous effort in supporting this report and providing endless feedback on it. Warm greetings also to Prof. Justinas Žilinskas (Mykolas Romeris University, Institute of International and EU Law), Dr El-ina Grigore-B-ara (University of Latvia, Faculty of Law) and Dr Eva-Clarita Pettai (Imre Kertész Kolleg Jena), who provided insightful comments on each of the states covered in this study. Additionally, the wonderful MEMOCRACY team, including Prof. Angelika Nußberger, Dr Uladzislau Belavusau, Dr Aleksandra Gliszczy´nskaGrabias, Dr Grazyna Baranowska, Dr Andrii Nekoliak, Dr Paula Rhein-Fischer, Dr Anna Wójcik, Dr Mirosław Sadowski, Charlie JP Bennett, Simon Mensing, and Anastasiia Vorobiova all deserve praise for their encouragement and kindness.

Delivering this report under the extensive support of the Centre for Military Studies at the University of Copenhagen has been a pleasure. Learning daily from the outstanding scholars at the Centre while working on the MEMOCRACY project was a privilege.

List of Tables

Table

List of Abbreviations

CEE: Central and Eastern Europe

CoE: Council of Europe

CC: Criminal Code

Genocide Convention: Convention on the Prevention and Punishment of the Crime of Genocide

FD 2008: Framework Decision 2008/913/JHA on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law

ECHR: Convention of European Human Rights

ECtHR: European Court of Human Rights

USSR: Union of the Soviet Socialist Republics

Summary

This report provides an overview of the memory laws that codify the remembrance of the Nazi and Soviet eras in the three Baltic states: Estonia, Latvia and Lithuania. The report summarizes the distinct patterns of mnemonic legal regulation in the Baltic states, including national and international case law, the related controversies and the background of memory legislation in a compact format.

Memory laws generally presume certain past events to be more significant for a society than others, either because they are seen as a danger to vital societal and political principles the government wants to defend or as a form of official truth that should be protected from scrutiny.1 Legislation validating specific narratives about the past2 is frequently linked to security concerns.3 The Council of Europe (CoE) defines ‘memory laws’ as norms that ‘enshrine state-approved interpretations of crucial historical events and promote certain narratives about the past, by banning, for example, the propagation of totalitarian ideologies or criminalizing expressions which deny, grossly minimize, approve or justify acts constituting genocide or crimes against humanity, as defined by international law’.4 Uladzislau Belavusau and Aleksandra Gliszczy´nska-Grabias describe them more broadly as acts that enshrine state-approved interpretations of crucial historical events.5

As the field of memory laws is constantly evolving, there are many genre typologies.6 ‘The hard core of memory laws’ are so-called punitive memory laws, since they penalize certain categories of speech about the past.7 Such laws are the most controversial form of state intervention, as they deliberately restrict the possible

1 Klaus Bachmann, Igor Lyubashenko, Christian Garuka, Gra`zyna Baranowska and Vjeran Pavlakovi´c, “The Puzzle of Punitive Memory Laws: New Insights into the Origins and Scope of Punitive Memory Laws”, East European Politics and Societies, 2020, vol. 35, no. 4, pp. 996–1012, https://doi.org/10.1177/0888325420941093.

2 Within this report, the term ‘memory’ refers to remembered past, ‘history’ to written past, and the ‘past’ itself to actual historical occurrences.

3 Anna Wójcik, “Memory Laws and Security”, Verfassungsblog, 5 January 2018, https://verfassungsblog.de/memory-laws-and-security/.

4 Council of Europe, Thematic factsheet “‘Memory Laws’ and Freedom of Expression”, July 2018, https://rm.coe.int/factsheet-on-memory-laws-july2018-docx/16808c1690.

scope for negotiation and debate on matters of the past.8 This report does not intend to provide a theoretical background for potentially new classifications of various ‘memory laws’. It proceeds from an understanding of memory laws as legislations that regulate social memory and convey a certain interpretation about the past.

The pertinent Baltic legislation is contextualised against the backdrop of the relevant European standards, largely set before the Baltic states became part of the European Union (EU) in 2004. Memory laws in the Baltic states were adopted in the course of dealing not only with their past during the Nazi German occupation (1941-1944), but also with the two Soviet occupations (1940-1941 and 1944-1990, respectively). Whereas the ruling Nazi party (National Socialist German Workers’ Party) was held accountable for their crimes, the Communist Party of the Soviet Union never assumed any responsibility, and attempts at a ‘Russian Nuremberg’ failed in 1992.9 The Baltic accounts are further complicated by the domestic collaboration with the Nazi destruction of the local and European Jewry (especially in Latvia and Lithuania) and the role of local communist parties during the Soviet occupations of the Baltic states. The legacy of communism continues to shape politics and society in this region to this day.10

The report distinguishes between a) punitive memory laws, b) non-punitive memory laws and c) quasi-memory laws. The most important punitive memory law – relating to specific historical events in the Baltic countries –is the offence of Holocaust denial, approval or downplaying – which was adjusted to the Baltic realities, and

5 Uladzislau Belavusau and Aleksandra Gliszczy´nska-Grabias, “Introduction: Memory Laws: Mapping a New Subject in Comparative Law and Transitional Justice”, in Law and Memory: Towards Legal Governance of History, eds Uladzislau Belavusau and Aleksandra Gliszczy´nska-Grabias, Cambridge University Press, London, 2017, pp. 13–24.

6 For a detailed analysis of memory laws concept, see Andrii Nekoliak’s PhD dissertation, “‘Memory Laws’ and the Patterns of Collective Memory Regulation in Poland and Ukraine in 1989–2020: a Comparative Analysis”, 8 July 2022, https://dspace.ut.ee/handle/10062/83142.

7 Nikolay Koposov, “Memory Laws: Historical Evidence in Support of the ‘Slippery Slope’ Argument”, Verfassungsblog.de, 8 January 2018, https://doi.org/10.17176/ 20180108-150448; a comprehensive analysis of memory laws concept was delivered in 2022 by Andrii Nekoliak in his dissertation, https://dspace.ut.ee/handle/10062/83142.

8 Eva-Clarita Pettai, “Protecting Memory or Criminalizing Dissent? Memory Laws in Lithuania and Latvia”, in Memory Laws: Criminalizing Historical Narratives, eds Elazar Barkan and Ariella Lang, Routledge, London, 2022.

9 Sergey Toymentsev, “Legal but Criminal: The Failure of the “Russian Nuremberg” and the Paradoxes of Post-Soviet Memory”, Compara-

thus also includes the denial of Soviet crimes during the two Soviet occupations. Domestic regulations following the formulations suggested by the ‘Framework Decision 2008/913/JHA on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law’ (FD 2008)11 were introduced in the 2010s,12 after years of attempts since 1990 to include the Baltic experiences in the European narrative, mainly focused on the remembrance of the Holocaust.

Anti-hate speech punitive memory laws, adopted in the Baltic states during the 1990s and 2000s, are also closely connected to Holocaust denial, as these laws seek to protect public peace, human dignity and honour in general. They were introduced in the 2000s, mainly in the course of adopting new Criminal Codes (CC) to incriminate offences against equality, defamation, anti-hate speech etc. Another group of explicit punitive memory laws are those adopted in the 1990s–2000s, addressing the Soviet crimes during the occupations and designed to seek individual legal responsibility. These are very specific compared to the western European context, and, at some point, overlap with those regulating hate speech. All three restored Baltic states made substantial changes to their criminal regulation, mainly in connection with the ratification of the 1948 ‘Convention on the Prevention and Punishment of the Crime of Genocide’ (Genocide Convention),13 which provided a perspective for the Baltic states to prosecute the perpetrators of heinous crimes both during the Nazi and Soviet occupations. This report confirms the conclusion of earlier studies – according to which the prosecution for genocide in the Baltic states has focused thus

tive Literature Studies, 2011, vol. 48, no. 3, pp. 296–319.

10 Li Bennich-Björkman, “The Communist Past: Party Formation and Elites in the Baltic States”, Baltic Worlds, 12 February 2010, https:// balticworlds.com/the-communist-past-party-formation-and-elites-inthe-baltic-states/.

11 Council of the European Union, “Framework Decision 2008/913/ JHA on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law”, November 28, 2008, https://eur-lex.europa.eu/EN/legal-content/summary/framework-decision-on-combating-certain-forms-and-expressions-of-racism-and-xenophobia-by-means-of-criminal-law.html.

12 In 2009 in Latvia and 2010 in Lithuania; no such criminal regulation exists in Estonia.

13 United Nations, “Convention on the Prevention and Punishment of the Crime of Genocide”, 9 December 1948, https://www.un.org/ en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20 of%20the%20Crime%20of%20Genocide.pdf.

far more on the Soviet crimes than on the Holocaust, especially in Latvia14 and Lithuania.15 The last category in the group of punitive memory laws in the Baltic states is linked with the measures of an administrative nature on banning Russian media outlets after the invasion of Ukraine in 2014 and introducing restrictions linked with Russian and Belarusian citizens after the beginning of the full-scale Russian invasion in 2022.

Memory laws of a non-punitive character in the Baltic states include the laws related to the process of transitional justice (restitution of property, rehabilitation, compensation and recognition for the victims, lustration and the institutions dealing with the past crimes) and symbolic satisfaction (removal of Soviet monuments, ban on Soviet/Russian symbols). Quasi-memory laws include declarations, public apologies, the renaming of streets and the institution of the days of remembrance.

The report shows that the majority of the Baltic memory laws comply with European standards. Doubts arise regarding the implementation of the FD 2008 in the context of the Soviet crimes in Latvia and Lithuania, and to a lesser extent in Estonia. Questions also remain regarding the ban on specific Soviet/Russian symbols. The report highlights the particularities that have arisen in the context of Baltic memory laws and politics for the three Baltic states in the broader European memory-political landscape. The report concludes with a number of policy recommendations.

The cut-off point for the empirical stock-taking of this report is 1 August 2023.

14 Katja Wezel, “The Unfinished Business of Perestroika: Latvia’s Memory Politics and Its Quest for Acknowledgment of Victimhood in Europe”, Nationalities Papers, 2016, vol. 44, no. 4, pp. 560–577. 15 Violeta Davoliu -te, “The Baltic Model of Civic-Patriotic History”, Journal of Genocide Research, 2022, vol. 24, no. 2, pp. 264–275; see Pierre Hazan, “Uneven Remembrance of Soviet and Nazi Crimes in the Baltic States”, Justice Info, 23 September 2016, https://www. justiceinfo.net/en/29202-uneven-remembrance-of-soviet-and-nazicrimes-in-the-baltic-states.html; see further Rain Liivoja, “Competing Histories: Soviet War Crimes in the Baltic States”, in The Hidden Histories of War Crimes Trials, eds Kevin Heller and Gerry Simpson, Oxford, New York, 2013, pp. 248–266, https://doi.org/10.1093/ acprof:oso/9780199671144.003.0012; see Anton Weiss-Wendt, “Why the Holocaust Does Not Matter to Estonians”, Journal of Baltic Studies, 2008, vol. 39, no. 4, pp. 475–497; see further Justinas Žilinskas, “Prosecuting International Crimes in Lithuania: When Wounds Shape the Law”, in Prosecuting International Crimes: A Multidisciplinary Approach, Brill, 2016, 24, pp. 299–309.

Introduction

The past is never dead. It’s not even past.16

William Faulkner

Memory legislation is not a contemporary phenomenon, as almost no nation can avoid a degree of memory governance.17 However, the memory laws of the Baltic states are unique. Although Estonia, Latvia and Lithuania shared a political consensus against communism and for ‘decommunisation’ after 1991, all three Baltic states needed to address not only the Soviet occupations (1940–1941, 1944–1990), but also the Nazi occupation (1941–1944). This is reflected in how ‘explicit’ memory laws – those referring to a specific historical event – exist regarding both Nazi and Soviet crimes in Estonia, Latvia and Lithuania. The purpose of this report is to provide a systematic overview of the categories of memory laws in the Baltic states that are dealing with their respective Nazi and Soviet pasts, as well as to offer some analysis and reflection on the distinct ways in which the mnemonic legislation has unfolded in the Baltic states. The report furnishes a comprehensive record of legal regulation, relevant national and international case law, as well as the related controversies. It further takes account of why Estonia, Latvia and Lithuania have adopted memory laws in the first place.

This report understands ‘memory laws’ as legislation that somehow regulates social memory, conveying certain narratives about the past and ultimately seeking to influence the society coming to terms with it. Accordingly, the broad concept of memory laws adopted

16 In William Faulkner’s novel Requiem for a Nun, depending on one’s edition, Nancy Mannigoe’s defense lawyer Gavin Stevens says to Temple, “The past is never dead. It’s not even past”, page 73, act 1, scene 3; see htps://www.enotes. com/homework-help/what-page-text-requiem-nun-does-faulkners-famous-498878.

17 Uladzislau Belavusau, “Memory Laws and Freedom of Speech: Governance of History in European Law”, in Comparative Perspectives on the Fundamental Freedom of Expression, eds András Koltay, Wolters Kluwer, Budapest, 2015, pp. 537–558; see Pierre Vidal-Naquet, Assassins of Memory: Essays on the Denial of the Holocaust, Columbia University Press, New York, 1993; see further Mark J. Osiel, Mass Atrocity, Collective Memory, and the Law, Routledge, New York, 1997; see John Borneman, Settling Accounts: Violence, Justice, and Accountability in Postsocialist Europe, Princeton University Press, Princeton, 1997.

18 International Center for Transitional Justice, “What Is Transitional Justice?”, https://www.ictj.org/what-transitional-justice.

19 Article 42 of the 1907 Hague Regulations states that a ‘territory is considered occupied when it is placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised’; see further International Committee of the Red Cross, “Occupation

in this report also includes transitional justice measures, generally described as referring ‘to how societies respond to the legacies of massive and serious human rights violations’.18 Transitional justice is part and parcel of broader memory-political governance by states. For the sake of a comprehensive overview, the report does not discriminate between memory laws and transitional justice measures per se.

In the Baltic states, transitional justice has unfolded in several phases. The first phase entailed a national reckoning with the Nazi and Soviet pasts and coming to terms with them in each Baltic country mainly by historical research and adopting new laws related to past crimes. While rebuilding their statehoods in the 1990s, the Baltic states all legitimised themselves with reference to the period of independence between 1918 and 1940 to negate and overcome the legacy of the Soviet regime. Estonia, Latvia and Lithuania rejected the Soviet regime as illegal and considered the years under Soviet rule as occupation.19 Thus, any denial of the criminality of the foundations of the Soviet regime was considered as undermining the legal continuity of the Baltic states and their legitimacy.20 With the 2004 EU enlargement, the Baltic states had transcended national debates and pushed for a shared European memory within the scope of emerging EU policies to foster a common ‘European historical memory’, up until their accession, mainly shaped by the Holocaust legacy.21 Since then, the Baltic and International Humanitarian Law: Questions and Answers”, 4 August 2004, https://www.icrc.org/en/doc/resources/documents/ misc/634kfc.htm.

20 See Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR: A Study of the Tension between Normativity and Power in International Law, Martinus Nijhoff, Amsterdam, 2003.

21 See relevant initiatives, European Commission Directorate-General for Justice and Consumers, “Honouring Civil Courage: Developing Suggestions to Improve the Situation of Victims of Communist State Crimes”, https://www.stiftung-hsh.de/assets/ Dokumente-pdf-Dateien/EU-Projekt-Laenderstudien.pdf; Uladzislau Belavusau, Leon Castellanos-Jankiewicz and Marina Ban, “Memory Laws in European and Comperative Perspectives (MELA): Research project (2016–2019)”, Asser Institute, Centre for International & European Law, https://www.asser.nl/research/in-the-public-interest-accountability-of-the-state-and-the-prosecution-of-crimes/ memory-laws-in-european-and-comparative-perspectives-mela/.

22 “Chinese Diplomat Draws Ire from Baltic Nations over Statehood Remarks”, https://www.ft.com/content/da1eead6-db4e-482a-b301-8b9dba2d0ffa?fbclid=IwAR0R2gyr_ Np1XPaRArZSIbXzGxBPEyy0j_JAqGlZhUdZMXErfN8HyD4q8kI

states have all faced the dilemma of transmitting and explaining their Soviet memories to a European audience. The European mindscapes were changing slowly, as it was still normal in the 2000s (as it sometimes still is) to address the Baltic states in public discourse as ‘post-Soviet’ rather than as European countries. References to the allegedly deficient statehood of the Baltic states have still featured in 2023.22

Another defining moment was the adoption of FD 2008, which was regarded in the Baltic states as an opportunity to embrace their distinct historical record of the twentieth century. From 2008 onwards, the Baltic demands of recognition to their distinct historical legacies became more vocal. This is clearly reflected in the case law of the European Court of Human Rights (the ECtHR) regarding Soviet crimes in the Baltic states (see Section 3.1.). The most recent phase in the Baltic memory legislation began in 2014 with the Russian annexation of Crimea and has become further reinforced in 2022 with the Russian invasion of Ukraine and the Russo–Ukraine War. The three Baltic states are among the most active supporters of Ukraine, as they recall their own struggle to rebuild independent states in the 1990s and recognise the Ukrainian efforts to escape the so-called ‘Russkij mir’ (i.e., Russia’s soft-power-based outreach to Russian minorities outside Russia in an attempt to use them as facilitators of Russian propaganda).23

Academic works on transitional justice in the Baltic

23 Andis Kudors and Robert Orttung, “Russian Public Relations Activities and Soft Power”, Russian Analytical Digest, 16 June 2010, vol. 81, no. 10, https://www.research-collection.ethz.ch/ bitstream/handle/20.500.11850/26212/eth-2215-01.pdf; Exclusive: Putin’s Plans to Keep the Baltics in Check, https://news.yahoo.com/ exclusive-putins-plans-to-keep-the-baltics-in-check-220033457. html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAALIG5TN6m6oCPWACiMmzWoYd9Jzn3wxN63iNRLjunVztFiAKZOAT-bCUnklb0bCP_XpKPsAztPH2jNwPf-7KDH3_zZV_3jD_DxXrpTuKbI4vby_xr17sxa6kQPCKe9xybcvqyTe1PljRuN4KE73Fnl8PKLzTRXeEjlTwcPH-Gve2

24 Mark S. Ellis, “Purging the Past: The Current State of Lustration Laws in the Former Communist Bloc”, Law and Contemporary Problems, 1996, vol. 59, no. 4, pp. 181–196; Mariana Karadjova, “Property Restitution in Eastern Europe: Domestic and International Human Rights Law Responses”, Review of Central and East European Law, 2004, vol. 29, no. 3, pp. 325–363; Hilary Appel, “Anti-Communist Justice and Founding the Post-Communist Order: Lustration and Restitution in Central Europe”, East European Politics & Societies, 2005, vol. 19, no. 3, pp. 379–405; Eva Jaskovska and John P. Moran, “Justice or Politics? Criminal, Civil and Political Adjudication in the Newly Independent Baltic States”,

states have covered lustration and restitution topics,24 the Soviet crimes in the Baltic states,25 memory politics26 and memory conflict with Russia.27 The defining volume Transitional and Retrospective Justice in the Baltic States by Eva-Clarita and Vello Pettai in 2014 was the first in-depth review of the transitional justice system in the Baltic states.28 It was soon followed by a new generation of volumes that have explored the topic of memory laws in greater detail, but not particularly on the Baltic cases.29 The Russian annexation of Crimea marks another

Journal of Communist Studies and Transition Politics, 2006, vol. 22, no. 4, pp. 485–506; Adam Czarnota, “Lustration, Decommunisation and the Rule of Law”, Hague Journal on the Rule of Law, 2009, vol. 1, no. 2, pp. 307–336.

25 Lauri Mälksoo, “Soviet Genocide? Communist Mass Deportations in the Baltic States and International Law”, Leiden Journal of International Law, 2001, vol. 14, no. 4, pp. 757–787; Lauri Mälksoo, “State Responsibility and the Challenge of the Realist Paradigm: The Demand of Baltic Victims of Soviet Mass Repressions for Compensation from Russia”, in Baltic Yearbook of International Law, eds Ineta Ziemele, Brill, Amsterdam, 2003, pp. 57–76; Rytis Satkauskas, “Soviet Genocide Trials in the Baltic States: The Relevance of International Law”, in Yearbook of International Humanitarian Law, eds Ineta Ziemele, Brill, Amsterdam, 2004, pp. 388–409; Dovile Budryte, “‘We Call it Genocide’: Soviet Deportations and Repressions in the Memory of Lithuanians”, in The Genocidal Temptation: Auschwitz, Hiroshima, Rwanda and Beyond, eds Roberts S. Frey, University Press of America, Dallas/ Lanham, MD, 2004, pp. 79–100; Anton Weiss-Wendt 2005, “Hostage of Politics: Raphael Lemkin on ‘Soviet Genocide’”, Journal of Genocide Research, 2005, vol. 7, no 4, pp. 551–559; Liivoja, 2013; Marek Tamm, “In Search of Lost Time: Memory Politics in Estonia, 1991–2011”, Nationalities Papers, 2013, vol. 41, no. 4, pp. 651–674; Eva-Clarita Pettai, “Negotiating History for Reconciliation: A Comparative Evaluation of the Baltic Presidential Commissions”, Europe–Asia Studies, 2015, vol. 67, no. 7, pp. 1079–1101. Eva-Clarita Pettai, “Prosecuting Soviet Genocide: Comparing the Politics of Criminal Justice in the Baltic States”, European Politics and Society, 2017, vol. 18, no. 1, pp. 52–65; Ljiljana Radonic, “From ‘Double Genocide’ to ‘the New Jews’: Holocaust, Genocide and Mass Violence in Post-Communist Memorial Museums”, Journal of Genocide Research, 2018, vol. 20, no. 4, pp. 510–529; Philippe Perchoc, “European Memory Beyond the State: Baltic, Russian and European Memory Interactions (1991–2009)”, Memory Studies, 2019, vol. 12, no. 6, pp. 677–698.

26 Eva-Clarita Onken, “The Baltic States and Moscow’s 9 May Commemoration: Analysing Memory Politics in Europe”, Europe-Asia Studies, 2007, vol. 59, no. 1, pp. 23–46; Maria Mälksoo “The Memory Politics of Becoming European: The East European Subalterns and the Collective Memory of Europe”, European Journal of International Relations, 2009, vol. 15, no. 4, pp. 653–680; Eva-Clarita Onken, “Memory and Democratic Pluralism in the Baltic States: Rethinking the Relationship”, Journal of Baltic Studies, 2010, vol. 41, no. 3, pp. 277–294.

27 Piret Ehin and Eiki Berg, “Incompatible Identities? Baltic–Russian Relations and the EU as an Arena for Identity Conflict”, in Identity and Foreign Policy: Baltic–Russian Relations and European

focus on security30 and military links with memory,31 as well as the emphasis on national memories.32

After a brief socio-legal contextualisation of the Baltic memory governance in the ensuing section, the most relevant Baltic memory laws will be presented in part II and analysed vis-à-vis the European standards in part III. The report concludes with a presentation of the particularities arising in relation to the Baltic memory laws as compared to other countries (Section IV) and the recommendations to policy-makers (Section V).

Integration, eds Piret Ehin and Eiki, Ashgate, Aldershot, 2009, pp. 1–14; Maria Mälksoo, “Liminality and Contested Europeanness: Conflicting Memory Politics in the Baltic Space”, in Identity and Foreign Policy: Baltic–Russian Relations and European Integration, eds Piret Ehin and Eiki, Ashgate, Aldershot, 2009, pp. 65–84; Anna Gromilova, “Changing Identities of The Baltic States: Three Memories in Stone”, CES working papers, Centre for European Studies, 6. No. 2A, 2014, pp. 94–110; Eva-Clarita Pettai, “The Convergence of Two Worlds: Historians and Emerging Histories in the Baltic States”, in Forgotten Pages in Baltic History: Diversity and Inclusion, eds Martyn Housden and David J. Smith, Rodopi, Amsterdam, 2011, pp. 263–280; Toomas Hiio, “On the Historical Identity of the Estonians and the Politics of Memory in Estonia”, Institute of National Remembrance Review, 2019, vol. 1, pp. 66–115, doi: 10.48261/INRR190104; Pavel Žácˇek and Natalie Maraková, Memory of Nations: Democratic Transition Guide: The Estonian Experience, CEVRO, Prague, 2017.

28 Eva-Clarita Pettai and Vello Pettai, Transitional and Retrospective Justice in the Baltic States, Cambridge University Press, Cambridge, 2014.

29 Uladzislau Belavusau and Aleksandra Gliszczy´nska-Grabias, Law and Memory: Towards Legal Governance of History, Cambridge University Press, Cambridge, 2017; Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia, Cambridge University Press, Cambridge, 2017; Belavusau and Gliszczynska-Grabias, 2017.

30 Maria Mälksoo, “Criminalizing Communism: Transnational Mnemopolitics in Europe”, International Political Sociology, 2014, vol. 8, no. 1, pp. 82–99; Maria Mälksoo, “‘Memory Must Be Defended’: Beyond the Politics of Mnemonical Security”, Security Dialogue, 2015, vol. 46, no. 3, pp. 221–237; Maria Mälksoo, “The Transitional Justice and Foreign Policy Nexus: The Inefficient Causation of State Ontological Security-Seeking”, International Studies Review, 2019, vol. 21, no. 3, pp. 373–397; Maria Mälksoo, “The Normative Threat of Subtle Subversion: The Return of ‘Eastern Europe’ as an Ontological Insecurity Trope”, Cambridge Review of International Affairs, 2019, vol. 32, no. 3, pp. 365–383; Maria Mälksoo, “Militant Memocracy in International Relations: Mnemonical Status Anxiety and Memory Laws in Eastern Europe”, Review of International Studies, 2021, vol. 47, no. 4, pp. 489–507.

31 Maria Mälksoo, “A Baltic Struggle for a ‘European Memory’: The Militant Mnemopolitics of the Soviet Story”, Journal of Genocide Research, 2018, vol. 20, no. 4, pp. 530–544.

32 Dmitrijs Andrejevs, “Revisiting the Social Organisation of National Memory: A Look at the Calendars of Lithuania, Latvia, and Estonia”, Memory Studies, 2018, vol. 13, no. 6.

Socio-Legal Context for Memory Laws in the Baltic States

1.1. Addressing the Nazi and

Soviet Occupations After 1990

The Baltic states experienced World War II and the Cold War differently from the western European states; hence, the consequent clash of mnemonic narratives and distinct memory-political legislation patterns in Estonia, Latvia and Lithuania. In 1940, the Union of the Soviet Socialist Republics (USSR) occupied the Baltic states and Poland and began violent Sovietisation. With aspirations to regain their independence, German forces were welcomed as liberators in the Baltic capitals the year after. During the Nazi occupation in 1941–1944, the Baltic people became both the victims of the Nazi rule and accomplices to the ‘Final Solution’, ultimately failing to regain their sovereignty.

The post-1944 Soviet counteroffensive in the region was brutal. While Baltic partisan movements fought to liberate the Baltic states from the USSR,34 the Yalta conference unanimously confirmed the reincorporation of the Baltic countries into the USSR. The Soviet occupations (1940–1941, 1944–1990) of Estonia, Latvia and Lithuania killed hundreds of thousands of innocent people.35 Many were executed, imprisoned or sent to so-called Gulag camps, but the majority of those directly persecuted were deported from their homelands to inhospitable Siberia.36 Moreover, in the early 1960s, the USSR encouraged thousands of Russian-speaking families to settle in the Baltic states, especially to Estonia and Latvia, and the majority of Russian–Baltic immigrant families praised the Soviet effort to ‘liberate the Baltic republics’ and their ‘voluntary merger with the USSR in 1940’.37 During the occupation, the Soviet regime

33 See a detailed analysis summarized; Perchoc, 2019.

34 Nika Bruskina, “The Crime of Genocide against the Lithuanian Partisans: A Dialogue Between the Council of Europe and the Lithuanian Courts”, European Papers, 2020, vol. 5, no. 1, pp. 137–159.

35 Šteˇpán Cernoušek, “Soviet Repression and Deportations in the Baltic States”, Gulag Online, June 2020, https://gulag.online/articles/ soviet-repression-and-deportations-in-the-baltic-states?locale=en.

36 GULAG – glavnoe upravlenije lagerei – The Main Direction of Imprisonment Camps – an organization that controlled imprisonment and forced labour processes in Stalinist-era Soviet Union.

37 Perchoc, 2019.

38 Violeta Davoliute, The Making and Breaking of Soviet Lithuania: Memory and Modernity in the Wake of War, Routledge, New York, 2013.

promoted their narrative through public events like Victory Day (9 May) and national museums, as well as new monuments created by the Soviet regime to destroy the narratives of national memory. The Baltic memories clashed with the Soviet narrative: State indoctrination, training and systematic persecution, and the jailing and deportation of opponents of the new memory regime muted their suppressed memories.38

In the 1990s, the supporters of Baltic independence claimed their countries were still independent republics, unjustly occupied by the USSR after the disclosure (in 1989) of the secret protocols of the 1939 Hitler–Stalin Pact.39 This legal continuity concept, acknowledged by the international community (including Russia at the time), legitimised the rebuilding of democratic governments and shaped the emerging criminal law and jurisdiction in the Baltic states.40 New national narratives put their emphases on three aspects: 1) occupations, portraying the Baltic peoples as victims of both the Soviet and Nazi German regimes, 2) the Soviet responsibility for the outbreak of World War II (the Molotov–Ribbentrop Pact 1939) rather than the Soviet role in defeating Nazism and 3) the Soviet occupation at the expense of the Nazi elimination in the Baltic states, occasionally with the support of local auxiliaries/auxiliary police.41 After the 1990s, the Baltic states all began prosecuting still-living perpetrators of the Stalin-era mass atrocities against local populations as crimes against humanity or war crimes.42 However, only Lithuania succeeded in reaching the international legal recognition of Soviet genocide against Lithuanian partisans as a significant part of the national group in a 2019 ECtHR case.43 This

39 Mälksoo, 2003.

40 Pettai, 2022; Lauri Mälksoo, “Chapter 2: The Legal Status of the Baltic States in International Law after 1991: Claims and Responses”, in Illegal Annexation and State Continuity, Brill Nijhoff, Leiden, 2022, https://doi.org/10.1163/9789004464896_004.

41 Weiss-Wendt, 2008; Anton Weiss-Wendt, Murder without Hatred: Estonians and the Holocaust, Syracuse University Press, New York, 2009.

42 Liivoja, 2013.

43 Gustavo Minervini, “The Principle of Legality and the Crime of Genocide: Drelingas v. Lithuania”, Human Rights Law Review, 2020, vol. 20, no. 4, pp. 810–828, https://doi.org/10.1093/hrlr/ngaa031; Lars Berster, “The Soviet Crackdown on Lithuanian Partisan Movements (1946–1956) – a Genocide? Background Deliberations on the

issue remains controversial among legal scholars.44 The ECtHR has repeatedly classified Stalin-era deportations of tens of thousands of Baltic peoples as crimes against humanity – not genocide.45

1.2. Joining the European Union (EU) and Dealing with the Russian Invasion of Ukraine

The major national transformation of the Baltic states was influenced by the international context, as neighbouring countries (particularly Russia) and European institutions played a role in the remembrance of the past. For most of the post-Soviet period, relations between Russia and the three Baltic states were complicated.46 After regaining independence, Baltic elites sought to prevent a new deal between the leading Western countries and Russia that could infringe on their security.47 The Baltic states wanted to influence EU foreign policy, especially towards Russia and the eastern neighbours.48

In the context of EU membership, however, the Baltic elites struggled to reconcile the established Holocaust memory narrative with their own, focused predominantly on the Soviet crimes. This was particularly the case against the backdrop of the Holocaust having become the ‘access ticket to the EU’ in the 1990s.49 The European memory narrative of the Holocaust, accepted as the epitome of modern genocide, was created as a means of dealing with traumatic memory and the desire to prevent such horrors in the future. The EU’s Holocaust narrative emphasises remembering and honouring victims and survivors. To prevent xenophobia, bigotry

ECHR Judgement in Drelingas v. Lithuania”, International Comparative Jurisprudence, 2021, vol. 7, no. 2, http://dx.doi.org/10.13165/j. icj.2021.12.002; Egidijus K-uris, “Vasiliauskas, Drelingas and beyond: An Insider’s View”, International Scientific Conference “Two Years After Drelingas Case: Changes and Perspectives for the Future”, n.d., https://repository.mruni.eu/bitstream/handle/007/18720/conference_proceedings_20221207-8-15.pdf?sequence=1.

44 Bruskina, 2020. Dovile Sagatiene, “The Debate about Soviet Genocide in Lithuania in the Case Law of The European Court of Human Rights”, Nationalities Papers, 2020, vol. 49, no. 4, pp. 776–791, https://doi.org/10.1017/nps.2020.56. Minervini, 2020; Berster, 2021; K-uris, n.d.

45 Pettai, 2017, pp. 52–65; Lauri Mälksoo, “The European Court of Human Rights and the Qualifcation of Soviet Crimes in the Baltic States”, Human Rights Law Journal, 2019, vol. 39, nos. 1–12, pp. 19–22; Nils Muižnieks, “Latvian–Russian Memory Battles at the European Court of Human Rights”, in The Geopolitics of History in Latvian–Russian Relations, eds Nils Muižnieks, Academic Press of the University of Latvia, Riga, 2011, pp. 219–238, https://www. lu.lv/fileadmin/user_upload/lu_portal/eng/news/The_Geopolitics_ of_History_in_Latvian-Russian_Relations.pdf.

46 Ehin and Berg, 2009.

and anti-Semitism in Europe, education and awareness are deemed essential. Cultural trauma is sought to be healed by the narratives that permit the development of a shared memory and identity based on rejecting the Holocaust and preventing its repetition.50

New challenges arose when the original German model of criminalising Holocaust denial was made the secondary law of the EU with the adoption of 2008 FD. This regulation has endeavoured to present a unified narrative that has sometimes contrasted with the different historical experiences in the large European legal realm.51 Indeed, Slovakia, Slovenia, Romania, Croatia and Bulgaria enacted the EU-style memory regulations, whereas Poland, the Czech Republic, Hungary, Lithuania and Latvia criminalised the denial of both Nazi and communist crimes.52 The acknowledgment of ‘the uniqueness of the Holocaust’ in a 2009 regulation53 also rendered unclear whether the European Parliament considered communist regimes ‘equally condemnable’ as the Nazi or as slightly different in terms of victims or crimes.54

Moscow criticized these developments, Vladimir Putin’s second term focusing on the ‘Great Patriotic War’ myth – that Russia supposedly solely liberated Central and Eastern Europe (CEE).55 As Nikolay Koposov points out, Putin’s ‘neo-imperialist ambitions’ and historical revisionism after 2004 have increased ‘memory conflicts’ across the region.56 Following Russian military involvement in Ukraine and the annexation of Crimea, legalisation efforts escalated.57 The Russian Duma passed a memory law in the spring of 2014 that gov-

47 Alexei I. Miller, “Historical Policy in Post-Communist Europe”, Russia in Global Affairs, 17 June 2016, https://eng.globalaffairs.ru/ articles/memory-control/.

48 Maria Mälksoo, “From Existential Politics towards Normal Politics? The Baltic States in the Enlarged Europe”, Security Dialogue, 2006, vol. 37, no. 3, p. 277.

49 Tony Judt, Postwar: A History of Europe since 1945, The Penguin Press, New York, 2005, p. 803.

50 Jeffrey C. Alexander, “On the Social Construction of Moral Universals: The ‘Holocaust’ from War Crime to Trauma Drama”, European Journal of Social Theory, 2002, vol. 5, no. 1, pp. 5–85, https:// doi.org.ep.fjernadgang.kb.dk/10.1177/1368431002005001001.

51 Grazyna Baranowska and León Castellanos-Jankiewicz, “Historical Memory in Post-communist Europe and the Rule of Law – First Part”, European Papers, 2020, vol. 5, no. 1, pp. 95–106.

52 Nikolay Koposov, “Historians, Memory Laws, and the Politics of the Past”, European Papers, 2020, vol. 5, no. 1, pp. 107–118, https://www.europeanpapers.eu/en/system/files/pdf_version/ EP_eJ_2020_1_6_SS1_Articles_Nikolay_Koposov_00390.pdf.

53 The European Parliament, “European Parliament Resolution of 2 April 2009 on European Conscience and Totalitarianism”, Official Journal of the European Union, 2010, vol. 53, no. C 137E, p. 26.

erns historical memory in Putin’s Russia.58 This statute criminalised the ‘denial of facts’ about the Red Army’s wartime conduct and ‘desecration of military glory’, which has unique significance in Ukraine’s memory wars over Crimea and the Donbas. It also reinforced the official narrative of the Red Army ‘liberation’ of modern-day Lithuania, Estonia and Latvia from Nazism, which the Baltic governments have strongly rejected.59 Russia exploited the already existing divisions in the Baltic societies, such as different narratives of distinct ethnic communities on historical events, followed by the disappointment in the rule of law.60 Formerly dominant Russian-speaking memory communities maintained strong ties to the global Russian memory regime: in both Estonia and Latvia (and to less extent in Lithuania), the Russian-speaking minorities circulated Russian narratives.61 In response, the Baltic states attempted to prevent pro-Russian sentiments by banning Russian media outlets since 2014 (see Section 2.1.).

Reacting to the European Parliament resolution ‘on the importance of European remembrance for the future of Europe’, adopted in September 2019,62 Vladimir Putin levelled accusations against Poland and the Poles in the context of Holocaust responsibility.63 New memory-political revisions were adopted in Russia’s constitutional amendments in 2020 while preparing Putin for re-election in 2024. The amended Russian Constitution also prohibited ‘diminishing the importance of the heroism of the people in the defence of the Fatherland’ (Article 67 (1)).64 Meanwhile, the Baltic states believed

54 Per Jelena Subotic’s conclusion, the EU has also been complicit in this circle of memory contestation ‘by often uncritically accepting Eastern European claims of equaling the crimes of communism with the crimes of the Holocaust and providing cover for these claims with a series of high-profile EU resolutions, the most significant of which is the 2008 Prague Declaration’; Cagla Demirel and Martin Englund, “Legislating Memory: From Memory Laws to Transitional Justice”, Baltic Worlds, 13 June 2021, https://balticworlds. com/legislating-memory-from-memory-laws-to-transitional-justice/.

55 Nina Tumarkin, “The Great Patriotic War as Myth and Memory”, European Review, 2003, vol. 11, no. 4, pp. 595–561. Maria Mälksoo, “Who’s Afraid of Memory Laws? Introducing ‘Militant Memocracy’ in International Relations”, British International Studies Association, 13 April 2021, https://www.bisa.ac.uk/articles/ whos-afraid-memory-laws-introducing-militant-memocracy-international-relations.

56 Koposov, 2017, p. 160.

57 Uladzislau Belavusau, Aleksandra Gliszczynska-Grabias and Maria Mälksoo, “Memory Laws and Memory Wars in Poland, Russia and Ukraine”, Jahrbuch des öffentlichen Rechts, 2021, vol. 69, pp. 95–117, https://ssrn.com/abstract=3806091 or http://dx.doi. org/10.2139/ssrn.3806091.

that the Kremlin’s rewriting of the past could lead to territorial claims and were consequently alarmed that these developments in Russia could undermine their security and the overall stability of the region. In 2021, new Russian legislation prohibiting ‘any public attempt to equate the aims and actions of the Soviet Union and Nazi Germany during World War II, as well as to deny the decisive role of the Soviet people in the victory over fascism’, contributed to the development of a narrative of Russian victimhood and fuelled nationalist feelings; allowing Putin to frame his aggression against Ukraine more easily. As Francine Hirsch argues, in conjunction with Putin’s use of propaganda and disinformation, these regulations have paved the way for his war in Ukraine and highlighted the dangers of manipulating memory as a political instrument.65

As the full-fledged Russian invasion of Ukraine in 2022 confirmed the Baltic predictions, new restrictions were introduced in relation to Russian and Belarusian citizens in response (presented in Section 2.1. of the report). Other related mnemo-political initiatives have involved non-punitive legislation pertaining mostly to symbolic satisfaction or the belated re-ordering of the physical memory-scapes in the Baltic states, such as removing Soviet monuments from public spaces and the ban on Soviet/Russian symbols (Section 2.), as well as quasi-memory laws, such as declarations, apologies and the renaming of the streets (see Section 2.3.).

58 Ibid

59 Cynthia M. Horne and Lavinia Stan, Transitional Justice and the Former Soviet Union: Reviewing the Past, Looking Toward the Future, Cambridge University Press, 2018; Pettai, 2017, pp. 52–65.

60 See further, Policy Department for Citizens’ Rights and Constitutional Affairs, “Disinformation and Propaganda – Impact on the Functioning of the Rule of Law in the EU and Its Member States (2019)”, https://www.europarl.europa.eu/thinktank/en/document/ IPOL_STU(2019)608864. Directorate-General for External Policies, “Dis-information and Propaganda: Impact on the Functioning of the Rule of Law and Democratic Processes in the EU and Its Member States – 2021 Update”, https://www.europarl.europa.eu/ thinktank/en/document/EXPO_STU(2021)653633.

61 Perchoc, 2019.

62 European Parliament resolution of 19 September 2019 on the importance of European remembrance for the future of Europe (2019/2819(RSP)).

63 Belavusau, Gliszczynska-Grabias and Mälksoo, 2021.

64 Ibid

65 Francine Hirsch, “Putin’s Memory Laws Set the Stage for His War in Ukraine”, Law Fare, 28 February 2022, https://www.lawfareblog. com/putins-memory-laws-set-stage-his-war-ukraine.

Overview of the Baltic Memory Laws

The epicentre of contemporary memory legislation is in CEE.66 Since the 1980s, memory laws have been intended to maintain peace – but they have become a weapon in various European ‘memory wars’, most notably in eastern Europe.67 Following the spirit of western European memory laws, the majority of CEE countries more or less replicated the formulations suggested by FD 2008. However, six EU member states (Hungary, the Czech Republic, Slovakia, Poland, Lithuania and Latvia) deviate by having included communist crimes in their punitive memory laws, which criminalises the denial of these historic crimes.68

2.1. Explicit Memory Laws of Punitive Character

This report proceeds from a pragmatic distinction between punitive and non-punitive memory laws.69 Punitive memory laws are generally linked to punitive sanctions, while non-punitive ones are of a more of declarative/prescriptive nature.70 Eric Heinze, meanwhile, provides a more nuanced account by distinguishing,

Anti-hate speech memory laws

(legal/ political/ discursive)

Origin

Objectives

Postwar anti-fascist legislation and fear of resurgent antiSemitism and racism

Duty to remember the Holocaust

To protect memory/dignity of victims of past state crimes (minority); To combat racism, anti-Semitism, and rightwing extremism; To defend the constitutional order of the liberal democratic state

‘on the one hand, declaratory, hence non-regulatory measures, and, on the other hand, measures that are regulatory in the sense of authorising action in ways that may be either punitive, entailing limits on freedom, or non-punitive yet entailing some state action. A strictly declaratory norm is not only nonpunitive, but more generally non-regulatory’.71 Many authors, including Uladzislau Belavusau and Aleksandra Gliszczy´nskaGrabias, consider Holocaust denial laws to offer the best example of the ‘punitive memory law’, while other laws linked with governing various memory issues, such as remembrance dates, de-communisation laws and even individual criminal proceedings, are still migrating between various classifications.72

Recently, Eva-Clarita Pettai has suggested a categorisation of punitive memory laws that indicates the links between anti-hate speech punitive memory laws, anti-communist punitive memory laws and anti-liberal punitive memory laws (see Table 1 below).

73

Each type of punitive memory laws holds distinct

Anti-communist memory laws

Post-1989 dismantling legal, political and representational legacies of Communism (De-communization)

Duty to remember the Stalinist crimes

To protect memory/dignity of victims of past state crimes (majority/minority); To enforce the notion of equal legal treatment of both Nazi and Communist-era mass crimes; To defend an official anti-communist narrative

Anti-liberal memory laws

Authoritarian mind-set of state leaders and need for legitimization

Discourse of external and internal threats to the nation

To enforce a myth of national heroism/ victimhood and defend perpetrators of state crimes against critical scrutiny;

To protect ‘the nation’ from the influence of liberal ideas of pluralism and open historical discourse

Table 1. Categories of Punitive Memory Laws in Europe (Source: Pettai, 2022: 174.)

objectives, but they all share a punitive (sanctioning) character. This typology could also be used in the context of the broader scope of Baltic memory politics with the exception of anti-liberal memory laws, which are absent in the Baltic context. However, the specific laws addressing Soviet crimes in the Baltic states should be included here.

The First Stage: Anti-Hate Speech Punitive Memory Laws (1990–2000s)

The first group of punitive memory laws (anti-hate speech memory laws) were adopted in all three Baltics states as part of the criminal regulation in order to protect certain civil rights and freedoms. This was also a crucial precondition for re-establishing democracy and acceding with the EU.74 In other words, these are the laws that generally protect public peace, human dignity and honour; inter alia the essential elements of democratic societies in EU. These laws are not, at first sight, designed as ‘memory laws’ per se; rather, they have been applied in a manner that demonstrates the entanglement of banning hate speech and historical memory issues.

In the case of Estonia, several regulations in the field of criminal law could be considered anti-hate speech punitive memory laws. Back in 2002, the Estonian CC introduced new regulations on offences against political and civil rights (Articles 151 and 72 in the previous version of the CC), which indicates offences against equality.75 The legal concept of this offence is very broad, as it includes the prohibition to incite hatred, which in the memory-battle context can include the incitement of hatred against some groups by presenting differ-

66 Uladzislau Belavusau and Aleksandra Gliszczy´nska-Grabias “The Remarkable Rise of ‘Law and Historical Memory’ in Europe: Theorizing Trends and Prospects in the Recent Literature”, Journal of Law and Society, 2020, vol. 47, no. 2, https://doi.org/10.1111/ jols.12228.

67 Koposov, 2020.

68 Pettai, 2022.

69 For a detailed analysis of memory laws concept, see Nekoliak, 2022.

70 Ibid., 26.

71 Eric Heinze, “Epilogue: Beyond ‘Memory Laws’: Towards a General Theory of Law and Historical Discourse”, in Law and Memory: Towards Legal Governance of History, eds Uladzislau Belavusau and Aleksandra Gliszczy´nska-Grabias, Cambridge University Press, London, 2017, p. 418.

72 Belavusau and Gliszczy´nska-Grabias, 2017, pp. 13–24.

73 Ibid., 174.

ent views on certain historical events (‘Activities which publicly incite to hatred, violence or discrimination on the basis of nationality, race, color, sex, language, origin, religion, sexual orientation, political opinion, or financial or social status if this results in danger to the life, health or property of a person is punishable by a fine of up to three hundred fine units or by detention’).

The case law of this regulation illustrates how it falls within the memory-issue context. In the case No. 3-14-113-99 Estonian national court discussed the issue, which was linked to the events of January 1999, when Mr Bairas distributed the Nashe Otechestvo newspaper (‘Our Fatherland’), which was printed in St. Petersburg, from an apartment block in Tallinn. He later invited people to subscribe to the paper, which contained antiSemitic materials. He was accused on the basis of Article 72 of the CC (incitement to hatred, Article 151 in the new CC). The Tallinn Circuit Court found him guilty, and its decision was confirmed in the higher court. The court stated that the distribution of materials inciting ethnic hatred cannot be justified with reference to economic motives or freedom of expression. This is one of the first cases where Estonia demonstrated its intent to combat the distribution of anti-Semitic materials.76

The Estonian CC includes more regulations that could attain a specific relevance in a memory-political context as legislation on equality and discrimination: Article 245 states the definition of defamation of the state and its symbols as follows: ‘(1) A person who tears down, damages, profanes or otherwise defames the Estonian flag, national coat of arms or any other official symbol of the Republic of Estonia, or defames the national anthem, is punishable by a fine or up to one year’s imprisonment.

74 Estonian Ministry of Foreign Affairs, “Estonia’s Way into the European Union”, 2009, https://vm.ee/sites/default/files/content-editors/web-static/052/Estonias_way_into_the_EU.pdf.

75 Penal code of the Republic of Estonia of June 6, 2001, https:// www.riigiteataja.ee/en/eli/522012015002/consolide. The previous background for this law was the Estonian Constitution, Article 12 ‘Everyone is equal before the law. No one shall be discriminated against on the basis of nationality, race, color, sex, language, origin, religion, political or other beliefs, property or social status, or on other grounds. The incitement of national, racial, religious or political hatred, violence or discrimination shall be prohibited and punishable by law. The incitement of hatred, violence or discrimination between social strata shall also be prohibited and punishable by law’, https://www.riigiteataja.ee/en/eli/530122020003/consolide#:~:text=Rights%20and%20freedoms%20may%20be,is%20 equal%20before%20the%20law.

(2) The same act, if committed by a legal person, is punishable by a fine’.77

Latvian criminal regulation of anti-hate violations is indicated in the CC, regulating the criminal offences of triggering national, ethnic and racial hatred (Section 78),78 the destruction of cultural and national heritage (Section 79),79 the desecration of state symbols (Section 93) and the incitement of social hatred and enmity (Section 150). The last from this group is probably the most specific, as it indicates ‘social hatred’ as a punishable act: ‘For a person who commits an act oriented towards inciting hatred or enmity depending on the gender, age, disability of a person or any other characteristics, if substantial harm has been caused thereby, the applicable punishment is the deprivation of liberty for a period of up to one year or temporary deprivation of liberty, or probationary supervision, or community service, or fine’.80

The criminal regulation pertaining to defamation is also relevant in this regard. The Latvian CC indicates two versions of defamation: regular defamation, when a ‘person who knowingly commits intentional distribution of fictions, knowing them to be untrue and defamatory of another person, in printed or otherwise reproduced material, as well as orally, if such has been committed publicly (defamation), the applicable punishment is the probationary supervision or community service, or fine’ (Section 157), also the ‘Denigration and Defamation in Mass Media’ (Section 158), which is considered to be a more serious offence than the regular defamation. However, the Latvian regulation is also specific on one point, as it adopted administrative legal regula-

76 Supreme Court of the Republic of Estonia Case No. 3-1-4-113-99, https://www.ohchr.org/sites/default/files/Documents/Issues/Expression/ICCPR/Vienna/Annexes/Estonia.pdf.

77 International Press Institute Media Laws Database, “Estonia”, http://legaldb.freemedia.at/legal-database/estonia/.

78 (1) For a person who commits acts directed towards triggering national, ethnic, racial or religious hatred or enmity, the applicable punishment is the deprivation of liberty for a period of up to three years or temporary deprivation of liberty, or probationary supervision, or community service, or fine. (2) For a person who commits the same acts, if they have been committed by a group of persons or a public official, or a responsible employee of an undertaking (company) or organisation, or if they have been committed using an automated data processing system, the applicable punishment is the deprivation of liberty for a period of up to five years or temporary deprivation of liberty, or probationary supervision, or community service, or fine. (3) For committing the act provided for in Paragraph one of this Section, if it is related to violence or threats or if it is committed by an organised group, the applicable

tion on assemblies: the 2013 law ‘Amendments to the Law on Safety of Public Entertainment and Festive Events’ prohibits during a public event to ‘1) oppose the independence and territorial indivisibility of the Republic of Latvia, make proposals for violent changes to the Latvian state system, call for non-compliance with laws; 2) preach violence, hatred, blatant Nazi, fascist or communist ideology’.81 This administrative regulation is punitive in the sense that it indicates legal liability for those violations: ‘For the violation of the provisions mentioned in the first part of this section, persons shall be held accountable in accordance with the procedures specified in the regulatory enactments’.

The Lithuanian CC is very close to both Latvia and Estonia regarding anti-hate speech regulation, as it was a basic minimum standard to join EU in 2004. Chapter XXV of the Lithuanian CC, in force since 2003, indicates crimes and misdemeanours against a person’s equal rights and freedom of conscience, which includes the prohibition of discrimination on grounds of nationality, race, sex, descent, religion or belonging to other groups (Article 169),82 as well as incitement against any national, racial, ethnic, religious or other group of persons (Article 170).83 Lithuanian criminal regulation also lists defamation as criminal activity under the offence of libel (Article 154):

(1) A person who spreads false information about another person that could arouse contempt for this person or humiliate him or undermine trust in him shall be punished by a fine or by restriction of liberty or by arrest or by a custodial sentence for a term of up to one year. (2) A person who libels a person ac-

punishment is the deprivation of liberty for a period of up to ten years, with or without probationary supervision for a period of up to three years.

79 Destruction of Cultural and National Heritage. For a person who commits intentional destruction of such values which constitute part of the cultural or national heritage, the applicable punishment is the deprivation of liberty for a period of up to twelve years.

80 Criminal Law of the Republic of Latvia of 17 June 1998, https:// likumi.lv/ta/en/en/id/88966.

81 Amendments to the Law on the Safety of Public Entertainment and Festive Events of the Republic of Latvia, https://www.vestnesis. lv/op/2013/129.4.

82 Discrimination on Grounds of Nationality, Race, Sex, Descent, Religion or Belonging to Other Groups. A person who carries out the actions aimed at hindering, on grounds of sex, sexual orientation, race, nationality, language, descent, social status, religion, convictions or views, a group of persons or a person belonging thereto to participate on a par with other persons in political, economic, social, cultural, labor or other activities or at restricting

cusing him of commission of a serious or grave crime or in the media or in a publication shall be punished by a fine or by arrest or by a custodial sentence for a term of up to two years. (3) A person shall be held liable for the acts provided for in this Article only under a complaint filed by the victim or a statement by the legal representative thereof or at the prosecutor’s request.

It also has some specifics, as introduced in Chapter XL, on crimes and misdemeanours against public order, which includes the ‘Violation of Public Order’ (Article 284):

(1) A person who, by defiant conduct, threats, taunting or acts of vandalism, demonstrates disrespect to the surrounding people or the environment in a public place and thereby disrupts public peace or order shall be punished by community service or by a fine or by restriction of liberty or by arrest or by a custodial sentence for a term of up to two years. (2) A person who disturbs public peace or order through the use of taboo words or by indecent conduct in a public place shall be considered to have committed a misdemeanor and shall be punished by community service or by a fine or by restriction of liberty or by arrest.

The Second Stage: Addressing Soviet Crimes during the Occupation (1990-2000s)

Another group of criminal laws mainly linked to the memory battles between the Baltic states and Russia pertains to the individual legal evaluation of past

the rights and freedoms of such a group of persons or of the person belonging thereto shall be punished by community service or by a fine or by restriction of liberty or by arrest or by a custodial sentence for a term of up to three years. Law on the Approval and Entry into Force of the Criminal Code of the Republic of Lithuania of September 26, 2000, https://e-seimas.lrs.lt/portal/legalActPrint/lt?jfwid=rivwzvpvg&documentId=a84fa232877611e5bca4ce385a9b7048&category=TAD.

83 Article 170. Incitement against Any National, Racial, Ethnic, Religious or Other Group of Persons. 1. A person who, for the purposes of distribution, produces, acquires, sends, transports or stores the items ridiculing, expressing contempt for, urging hatred of or inciting discrimination against a group of persons or a person belonging thereto on grounds of sex, sexual orientation, race, nationality, language, descent, social status, religion, convictions or views or inciting violence, a physical violent treatment of such a group of persons or the person belonging thereto or distributes them shall be punished by a fine or by restriction of

crimes, which in the context of the Baltic region usually indicates crimes committed by the Soviet regime. As stressed by the International Center for Transitional Justice,

in contexts of mass atrocities and large-scale human rights violations, criminal justice cannot be addressed using the same approach, and limited resources, of the ordinary justice mechanisms. Pursuing criminal accountability in these situations often requires strategic prosecutions, specific methodologies of investigation, a variety of special processes, and a combination of approaches, both retributive and restorative.84

The first criminal cases to address Soviet crimes in the Baltic states illustrate how transitional justice affected some political groups (perpetrators and victims of Soviet crimes) on an individual basis. Establishing accountability in individual cases is further bound to serve a broader collective effect in post-authoritarian and/or post-conflict societies, directed at bringing about a deeper shift in the societal mindset.

All three Baltic states made substantial changes to their respective criminal regulations addressing this reckoning need, which was suppressed by the Soviet occupying regimes in Estonia, Latvia and Lithuania during the post-war period. This process was overlapping to some extent with the adoption of the anti-hate speech laws presented in the previous section.

Lithuania was the first of the Baltics to adopt amendments to the inherited Soviet Criminal Code linked with the introduction of 1948 Genocide Convention to the

liberty or by arrest or by a custodial sentence for a term of up to one year. 2. A person who publicly ridicules, expresses contempt for, urges hatred of or incites discrimination against a group of persons or a person belonging thereto on grounds of sex, sexual orientation, race, nationality, language, descent, social status, religion, convictions or views shall be punished by a fine or by restriction of liberty or by arrest or by a custodial sentence for a term of up to two years. 3. A person who publicly incites violence or a physical violent treatment of a group of persons or a person belonging thereto on grounds of sex, sexual orientation, race, nationality, language, descent, social status, religion, convictions or views or finances or otherwise supports such activities shall be punished by a fine or by restriction of liberty or by arrest or by a custodial sentence for a term of up to three years. 4. A legal entity shall also be held liable for the acts provided for in this Article.

84 International Center for Transitional Justice, “Criminal Justice”, https://www.ictj.org/criminal-justice.

national regulation. In 1992, Lithuania acceded to the Genocide Convention and to the 1968 United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. At the same time, the ‘Law on Responsibility for Genocide of Inhabitants of Lithuania’ was enacted, which recognised Soviet actions as genocidal.85 Later, in 1998, the provisions regarding Soviet genocide were repealed and prosecution for genocide was thereafter incorporated into Articles 49 and 71 of the CC.87 In 2003, Article 99 of the new CC stipulated that:

a person, who, seeking to physically destroy some or all of the members of any national, ethnic, racial, religious, social or political group, organizes, is in charge of, or participates in killing, torturing, or causing bodily harm to them, hindering their mental development, deporting them or otherwise inflicting on them situations which bring about the death of some or all of them, restricting births to members of those groups or forcibly transferring their children to other groups, shall be punished by imprisonment for a term of from five to twenty years or by life imprisonment.

Latvia followed suit with the 1992 law ‘about conventional law enforcement of norms in Latvia in relation to crimes against humanity’, and the 1993 law ‘On Amendments to the Latvian Criminal Code and the Latvian Criminal Procedure Code’, stating the punishments for genocide, crimes against humanity, crimes against peace and war crimes.88 This regulation was replaced in 2009, when new amendments of CC were adopted,

85 Law ‘On Responsibility for the Genocide of the Lithuanian Population’ of 9 April 1992, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/ TAIS.2006?jfwid=xrbliefas.

86 Law Supplementing the Criminal Code of the Republic of Lithuania with Articles 62(1), 71 and amending of Articles 8(1), 24, 25, 26, 35, 49, 54(1), 89, of April 21, 1998, https://e-seimas.lrs.lt/portal/ legalAct/lt/TAD/TAIS.55137?positionInSearchResults=1&searchModelUUID=ba7370e9-c766-4d79-8be3-a92699800b64.

87 The Supreme Council of the Republic of Latvia Decision of 25 March 1993 ‘On the Implementation of Conventional Law in Latvia on Crimes against Humanity’, https://likumi.lv/ta/id/65483.

88 Amendment to the Criminal Code and the Code of Criminal Procedure of the Republic of Latvia of 6 April 1993, no. 16, https:// likumi.lv/ta/id/60472.

89 Amendment to the Criminal Law of the Republic of Latvia of 21 May 2009, no. 90, https://likumi.lv/ta/id/193112-grozijumi-kriminallikuma.

including a new definition of crimes against humanity (Article 71 (2)).89

With ‘The Criminal Accountability Act of Persons Who Have Conducted Crimes against Humanity or War Crimes in Estonia’,90 Estonia joined in 1994 with the task to:

in accordance with the Convention on the Prevention and Punishment of Genocide, approved by the United Nations General Assembly and signed on December 9, 1948, and the Convention on the NonApplication of Statute of Limitations to War Crimes and Crimes against Humanity, signed on November 26, 1968, to which the Republic of Estonia joined on September 26, 1991, to stipulate the criminal liability of persons who have committed crimes against humanity or war crimes in Estonia, by making corresponding changes and additions to the legislation of the Republic of Estonia.

This specific group of laws is very important in the context of the Baltic region, as these laws reflect the strategies adopted by each state to address past crimes by both totalitarian regimes. These regulations were also the background for national case law, some of the cases reaching the ECtHR (see Section 3.). Meanwhile, the prosecution for complicity with the Holocaust in the Baltic states was not so intense. The best-known cases concerned Konrad Kalejs (1913–2001), a Latvianborn alleged war criminal accused of taking part in the Holocaust during World War II.91 Kalejs was a member of the Arajs Kommando, a unit responsible for murdering thousands of Jews in Latvia and other parts of

90 Criminal Liability of Persons Who Have Committed Crimes against Humanity or War Crimes in Estonia Act of the Republic of Estonia of 9 November 1994, https://www.riigiteataja.ee/akt/24781.

91 Patrick Barkham, “Latvian Nazi Lieutenant Who Resisted All Efforts to Bring Him to Justice”, The Guardian, 12 November 2001, https://www.theguardian.com/news/2001/nov/12/guardianobituaries. warcrimes.

92 Steven C. Johnson, “Baltic States Finding It Hard to Prosecute Cases of War Crimes”, The Washington Post, 10 December 2000, https://www.washingtonpost.com/archive/politics/2000/12/10/baltic-states-finding-it-hard-to-prosecute-cases-of-war-crimes/560bde32-99c2-40c5-987c-dfddfc86bed3/; for more, see Mark Aarons, “The Search for Nazi War Criminals in Australia”, Australian Journal of Jewish Studies, 2012, vol. 26, pp. 164–177.

93 “Vilnius Court Ends War Crimes Trial”, The Baltic Times, 16 September 1999, https://www.baltictimes.com/news/articles/1542/.

94 Justinas Vanagas, “Už nusikaltimus žydams nuteist˛e A.M.Dailid˛e nuo kalejimo išgelbejo senatve (atnaujinta)”, Delfi.lt, 27 March 2006, https://www.delfi.lt/news/daily/lithuania/uz-nusikaltimus-zydams-nuteista-amdailide-nuo-kalejimo-isgelbejo-senatve-atnaujinta.d?id=9141106.

the Baltic region. He was deported to Latvia in 2000, where he was briefly detained but not charged due to a lack of evidence.92 Other cases involved Aleksandras Lileikis (1907–2000), a man with Lithuanian origins who steadfastly denied all accusations,93 Algimantas Mykolas Dailide (1921–2015), who was convicted, but found unfit to serve the sentence due to his age,94 and Kazys Gimžauskas (1908–2001).95

The Third Stage:

Anti-Communist Memory Laws (Criminalising Denial) (2010s)

As the Soviet (and later Russian) narrative intensified after the 2000s about how the Baltic States had supposedly voluntarily joined the USSR, the Baltics started searching for other ways to minimise this subversion of their national biographies. Latvia and Lithuania transposed 2008 FD into national criminal law by adopting their respective denial legislation.96 Meanwhile, Estonia incorporated FD 2008 by adopting the ‘Equal Treatment Act’ to ‘ensure the protection of persons against discrimination on grounds of nationality (ethnic origin), race, colour, religion or other beliefs, age, disability or sexual orientation’ (Article 1).97 The EU challenged this regulation in 2020, however, and the case is still pending in 2023 (see Section 3.).

The reasons for adopting the so-called ‘denial laws’ in Lithuania and Latvia were influenced not only by the purpose of the 2008 FD, but also related to the growing tensions in the region since the eastern EU enlargement in 2004. In the context of the ‘Bronze Soldier’ monument in Estonia in 2007,98 there were many other fac-

95 “Teismas pripažino Kaz˛i Gimžausk˛a kaltu del žyd˛u genocide”, Delfi.lt, 14 February 2001, https://www.delfi.lt/news/daily/lithuania/teismas-pripazino-kazi-gimzauska-kaltu-del-zydu-genocido.d?id=200133.

96 Pettai, 2022.

97 Equal Treatment Act of the Republic of Estonia of 11 December 2008, https://www.riigiteataja.ee/en/eli/530102013066/consolide.

98 Karsten Brüggemann and Andres Kasekamp, “The Politics of History and the ‘War of Monuments’ in Estonia”, Nationalities Papers, 2008, vol. 36, no. 3, pp. 425–448; David J. Smith, “‘Woe from Stones’: Commemoration, Identity Politics and Estonia’s ‘War of Monuments,’” Journal of Baltic Studies, 2008, vol. 39, no. 4, pp. 419–430; Inge Melchior and Oane Visser, “Voicing Past and Present Uncertainties: The Relocation of a Soviet World War II Memorial and the Politics of Memory in Estonia”, Focaal 2011, vol. 59, pp. 33–50; Steven Lee Myers, “Tensions Between Russia and Estonia Escalate”, The New York Times, 2 May 2007, http://www.nytimes.com/2007/05/02/world/europe/02cnd-russia.

tors, such as the clash over the celebration of the end of World War II in 200599 and ban on Soviet symbols in Lithuania.100 In 2010, the European Commission (EC) rejected a major initiative to hold Soviet crimes to the same standard as Nazi crimes.101

In 2009, Latvia amended CC introducing completely new criminal offence in relation to memory wars: Article 74 (1) on ‘acquittal of genocide, crimes against humanity and war crimes’ stipulated that:

[F]or a person who commits public glorification of genocide, crime against humanity, crime against peace or war crime or public denial or acquittal of committed genocide, crime against humanity, crime against peace or war crime, – the applicable punishment is deprivation of liberty for a term of not exceeding five years or temporary deprivation of liberty, or community service, or a fine.102

Article 74 (1) was amended in 2014 to read as follows: For public glorification of genocide, crimes against humanity, crimes against peace and war crimes or public glorification, denial, acquittal or gross trivialization of committed genocide, crimes against humanity, crimes against peace and war crimes, including genocide, crimes against humanity, crimes against peace and war crimes perpetrated by the USSR or Nazi Germany against the Republic of Latvia and its inhabitants.103

Similar regulations were adopted in Lithuania in 2010, following more debate than was the case in Latvia. The main discussion focused on the problem of freedom of

html; Martin Ehala, “The Bronze Soldier: Identity Threat and Maintenance in Estonia”, Journal of Baltic Studies, 2009, vol. 40, no. 1, pp. 139–158.

99 Onken, 2007; see also " Malksoo, 2018.

100 Article 188(18) ‘Distribution or display of Nazi or Communist symbols’ of The Code of Administrative Offenses of the Republic of Lithuania of 2008, no. 81–3181, http://www.infolex.lt/ ta/103787:str188-18.

101 Wendy Zeldin, “European Union: Rejection of Eastern European States’ Call to Hold Communist Crimes to Same Standard as Nazi Crimes”, Library of Congress, 30 December 2010, https://www. loc.gov/law/foreign-news/article/european-union-rejection-of-eastern-european-states-call-to-hold-communist-crimes-to-same-standard-as-nazi-crimes/.

102 Criminal Law of the Republic of Latvia of 2009, https://likumi.lv/ ta/en/en/id/88966-criminal-law.

103 Amendments to the Criminal Law of the Republic of Latvia of 31 May 2014, no. 105. Official publication no. 2014/105.2, https:// www.vestnesis.lv/op/2014/105.2.

speech and even freedom of thought and belief. Consequently, the first proposal of 2009 was dropped.104 In 2010, the Lithuanian CC maintained that:

Public approval of international crimes, crimes committed by the USSR or Nazi Germany against the Republic of Lithuania or its inhabitants, their denial or gross undermining. (1) The person who publicly approved genocide or other crimes against humanity or war crimes recognized by the legal acts of the Republic of Lithuania or the European Union or the decisions of the Republic of Lithuania or international courts, denied them or grossly belittled them, if this was done in a threatening, insulting or offensive way or because of that public order was disturbed, as well as those who publicly supported the aggression committed by the USSR or Nazi Germany against the Republic of Lithuania, genocide or other crimes against humanity or war crimes committed by the USSR or Nazi Germany on the territory of the Republic of Lithuania or against the inhabitants of the Republic of Lithuania, or those committed in 1990–1991 to others who carried out aggression against the Republic of Lithuania or participated in it for very serious or serious crimes against the Republic of Lithuania or very serious crimes against the residents of the Republic of Lithuania, denied them or grossly belittled them, if this was done in a threatening, insulting manner u or in an offensive manner or as a result of which public order has been disturbed, shall be punished by a fine or restriction of liberty, or arrest, or imprisonment for up to two years. (2) A legal person is also responsible for the acts provided for in this article (Article 17 (2)).105

New developments followed after 2022, when Russia attacked Ukraine. This new dimension regarding the

104 Justinas Žilinskas, “Introduction of ‘Crime of Denial’ in the Lithuanian Criminal Law and First Instances of Its Application”, Jurisprudencija, 2012, vol. 19, no. 1, p. 320, https://www.ceeol. com/search/article-detail?id=100726.

105 Law Amending and Supplementing Article 95 of the Criminal Code of the Republic of Lithuania and Supplementing the Code with Article 170 (2) and Supplementing the Annex to the Code, of 15 June 2010, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/ TAIS.375951?jfwid=-onfyferuh.

106 Draft Law Amending Article 170(2) of the Criminal Code of the Republic of Lithuania, https://e-seimas.lrs.lt/portal/legalAct/lt/TAP/ af6ff77098a111ec9e62f960e3ee1cb6.

107 Amendment of Articles 60, 129, 135, 138, 169, 170, 170(1) and 170(2) of the Criminal Code of the Republic of Lithuania of April 28, 2022, https://e-seimasx.lrs.lt/portal/legalAct/lt/TAD/ 9b05ab52c79411ecb69ea7b9ba9d787b?jfwid=-gucsndw5w.

unfolding situation in Ukraine was included into the draft law as follows:

Public approval of international crimes, crimes of the USSR or Nazi Germany against the Republic of Lithuania or its inhabitants, crimes of the Russian Federation against the Republic of Ukraine or its inhabitants, their denial or gross undermining (1) The person who publicly approved genocide or other crimes against humanity or war crimes recognized by the legal acts of the Republic of Lithuania or the European Union or by the legal decisions of the Republic of Lithuania or international courts, denied them or grossly belittled them, if this was done in a threatening, insulting or offensive way or was disturbed because of it public order, as well as those who publicly supported the aggression committed by the USSR, Nazi Germany and the Russian Federation against the Republic of Lithuania and the Republic of Ukraine, the USSR, or the aggression committed by Nazi Germany and the Russian Federation on the territory of the Republic of Lithuania and the Republic of Ukraine or against the residents of the Republic of Lithuania and the Republic of Ukraine genocide or other crimes against humanity or war crimes, shall be punished by a fine or restriction of liberty, or arrest, or imprisonment for up to two years. (2) A legal person is also responsible for the acts provided for in this article.106

This draft is still under consideration, however, in April 2022, Article 170 (2) of CC already faced some amendments to match the wording of FD 2008 (see Section 3. for more on compatibility).107 The analysis of this regulation indicates great controversies, especially within the context of the first cases after 2010. As Professor Justinas Žilinskas has pointed out: ‘the first instances show the narrow approach, misunderstanding of the purpose of the crime purpose and confusion of

108 Žilinskas, 2012.

109 Pettai, 2022.

110 For more, see Richard Ned Lebow, “The Future of Memory”, The Annals of the American Academy of Political and Social Science, 2008, vol. 617, pp. 25–41, http://www.jstor.orAg/stable/25098011.

111 Mälksoo, 2015; Dovile Budryte, Erica Resende and Douglas Becker, “Defending Memory: Exploring the Relationship between Mnemonical In/Security and Crisis in Global Politics”, 15 July 2020, http:// siba-ese.unisalento.it/index.php/idps/article/view/22370/18893.

112 Kathrin Bachleitner, “Ontological Security as Temporal Security? The Role of ‘Significant Historical Others’ in World Politics”, International Relations, 2023, vol. 37, no. 1, p. 30, https://doi. org/10.1177/00471178211045624.

113 Alexandria J. Innes and Brent J. Steele, “Memory, Trauma and Ontological Security”, in Memory and Trauma in International

arguments’.108 Eva-Clarita Pettai concluded that Russian foreign policy towards the former Soviet republics undoubtedly influenced the drafting of both memory laws and will continue to impact public and judicial discussions regarding the application and interpretation of these new provisions.109

The Fourth Stage: New Punitive (Memory) Laws after 2014?

The last set of laws in the category of potentially punitive memory laws in the Baltic states are the measures of administrative nature regarding the ban on Russian media outlets after the invasion of Ukraine in 2014, and the restrictions introduced in relation to the Russian and Belarusian citizens since the full-scale Russian invasion of 2022. These laws pertain to the transmission of particular narratives and new memory narratives in the making.110 Such regulations are introduced to prevent the transmission of open-ended memory narratives, which often become part of disinformation campaigns and hybrid threats, thus encouraging further memory and identity battles in the future. These memory laws are emphatically animated by the attempted defence of a state’s ontological security, which addresses the need to create and preserve particular identities, especially during times of crisis and war.111 Maria Mälksoo explicitly linked narrative identity with memory as she picked up on the idea of ‘identity as memory’ and reformulated the quest for a stable identity as ontological securityseeking into ‘mnemonical security’, or the quest for a stable memory. As she maintained, the logic of mnemonical security suggests that ‘distinct understandings of the past should be fixed in public remembrance … in order to buttress an actor’s stable sense of self as the basis of its political agency’.112 Along similar lines,

Relations: Theories, Cases, and Debates, eds Erica Resende and Dovile Budryte, Routledge, London, 2014, pp. 15–29.

114 “Young People Are Fleeing the Baltic Countries: What Awaits the Empty Territories?” Sputnik News Lietuva, 13 August 2019, https:// sputniknews.lt/video/20190813/9944220/Jaunimas-bega-is-Baltijos-saliu-kas-laukia-tusciu-teritoriju.

115 James Montague, “Lithuania Bans Russian Language Channel for “Inciting Discord”, Index on Censorship, 9 April 2015, https:// www.indexoncensorship.org/2015/04/lithuania-bans-russian-language-channel-inciting-discord/.

116 “Lithuania Bans Russian Television Channel RT, Follows Latvia”, AP News, 8 July 2020, https://apnews.com/article/television-lithuania-russia-europe-media-61721aecc040395404990006d24e97da.

117 Estonia’s President against ban on broadcasting of Russian TV channels, https://tass.com/world/739054?utm_source=google. com&utm_medium=organic&utm_campaign=google.com&utm_

Alexandria Innes and Brent J. Steele link the conceptualisation of a state narrative with the articulation of collective memory particularly referencing traumatic experiences.113

Russian state-sponsored media outlets (e.g., Russia Today, Sputnik) peddle conspiracies and sensationalist stories about democracies. Such stories are reproduced and spread through other popular media outlets to target populations.114 Because Russian and Baltic media typically present historical and current events differently, re-broadcasts of some Russian TV channels were suspended in Latvia (2014) and Lithuania (2015, 2016)115 due to the Russo–Ukrainian War and their subsequent incitement of hatred, and they were fully banned in 2020.116 Meanwhile, Estonia took a different approach, explicit bans first put in place in 2022.117 Instead, new national channels in Russian were established.118

The laws dealing with the Russian media in the Baltic region are mainly of an administrative nature, as violation can result in administrative but not criminal measures. In the Lithuanian case, the decision-maker was the Lithuanian Radio and Television Commission, which in 2015 and 2016 banned re-broadcasts of RTR Planeta due to the war and incitement to hatred based on the regulation by Law on Public Information of the Republic of Lithuania.119 Similarly, in Latvia, it was the Latvian National Electronic Mass Media Council, and in Estonia, the Estonian Consumer Protection and Technical Regulatory Authority.

Another round followed in 2022 when Lithuania banned the rebroadcasting of six Russian-language TV channels in the country – some of them for three years, and some for five years – due to incitement of violence and propaganda.120 In September 2022, the ‘Law of the Republic of Lithuania on Public Information’ was

referrer=google.com.

118 “Estonia Launches Russian TV Channel”, Deutsche Welle, 28 September 2015, https://www.dw.com/en/estonia-launches-own-russian-language-tv-channel/a-18747088.

119 Article 19 of the Law on Public Information of the Republic of Lithuania ‘Confidential information’ stipulated, that ‘It is prohibited to publish information in public information media in which: 1) spreading disinformation, war propaganda, inciting war, calling for coercion to violate the sovereignty of the Republic of Lithuania –to change its constitutional order, to encroach on its independence or to violate the integrity of the territory,’ https://e-seimas.lrs.lt/ portal/legalAct/lt/TAD/TAIS.29884/asr.

120 Ignas Jaˇcauskas, “The CSTC Bans the Retransmission of 6 Russian and Belarusian TV Channels for Warmongering”, LRT.lt, 25 February 2022, https://www.lrt.lt/naujienos/lietuvoje/2/1626240/ lrtk-del-karo-kurstymo-uzdraude-retransliuoti-6-rusiskas-ir-baltaru-

amended to state that:

In the Republic of Lithuania, it is prohibited to rebroadcast and/or distribute on the Internet radio programs, television programs and/or individual programs of entities established, directly or indirectly managed, controlled or financed by the Russian Federation or the Republic of Belarus, except in cases where the Commission grants permission for rebroadcasting and/or distribute such programs or when they are rebroadcast and/or distributed from European Union member states or countries that have ratified the European Convention on Television without Frontiers.121

Latvia banned all Russian channels in 2022. The decision was taken on the basis of the ‘Electronic Mass Media Law’,122 which stipulates that channels registered in a country threatening the territorial integrity and independence of another country should not be operational in Latvia.123 After some efforts to host the Russian opposition media, that outlet was also closed.124 Estonia requested that Estonian internet providers restrict access to several Russian media websites spreading propaganda and which incited hatred for 12 months.125 This practice inspired the EU to take similar steps and ban more Russian channels.126

The restrictions on Russian and Belarusian citizens appear to be targeting Russian strategy to use minorities as facilitators of Russian propaganda.127 It also serves as

siskas-televizijas.

121 Law amending Article 341 of the Law no. I-1418 on Public Information of the Republic of Lithuania, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/29001c023a6e11edbf47f0036855e731?jfwid=-onfyfequ0. “Lithuania Bans Russian, Belarusian TV Channels over War Incitement”, LRT.lt, 25 February 2022, https://www.lrt.lt/ en/news-in-english/19/1626345/lithuania-bans-russian-belarusian-tv-channels-over-war-incitement.

122 Electronic Mass Media Law of the Republic of Latvia of 12 July 2010, https://likumi.lv/ta/en/en/id/214039-electronic-mass-media-law.

123 “Latvia Bans All Russia-Based TV Channels”, LRT.lt, 6 June 2022, https://www.lrt.lt/en/news-in-english/19/1712832/latvia-bans-allrussia-based-tv-channels. “All Russia-Based TV Channels Banned in Latvia”, LSM.lv, 6 June 2022, https://eng.lsm.lv/article/features/media-literacy/all-russia-based-tv-channels-banned-in-latvia.a460236/.

124 “Latvia Shuts Down Exiled Russian TV Channel Dozhd”, https:// www.politico.eu/article/latvia-media-regulator-shut-down-russia-tv-dozhd/.

125 “Estonian Tech Regulator to Restrict Access to Seven Russian Websites”, 16 March 2022, https://news.err.ee/1608533494/estonian-tech-regulator-to-restrict-access-to-seven-russian-websites.

symbolic politics (à la Putin’s arrest warrant) to signal the condemnation of the co-responsibility of Russians and Belarusians in the current war. The restrictions on Russian and Belarusian citizens after 2022 aimed to address various issues that serve to distribute Russian historical narratives, including a ban on issuing temporary residence permits to Russian and Belarusian (Latvian) citizens,128 suspending existing permits due to pro-Russian actions (Estonia),129 revoking citizenship if a person takes actions that threaten the security interests of a host state (Lithuania);130 also a request to sign a document condemning the war in Ukraine while entering (Latvia),131 deprivation of Latvian citizenship if a person has provided significant support (financial, material, propaganda, technological) to persons, states, etc. who have committed a crime against peace: genocide, crimes against humanity and war crimes that threaten the territorial integrity and independence of democracies.132 Lithuania adopted stricter measures against Russian and Belarusian citizens aiming to prevent individuals involved in human rights abuses, corruption, and other serious crimes in these countries from entering Lithuania or obtaining a residence permit or citizenship.133 Lithuania deemed 1164 Belarusian and Russian nationals a threat in August 2022, subsequently revoking their residence permits and visas.134 The rejections followed the introduction of a mandatory questionnaire for Belarusian and Russian nationals, which includes questions on the Russian war in Ukraine and whether Crimea belongs to Kyiv.

126 For more, see Björnstjern Baade, “The EU’s ‘Ban’ of RT and Sputnik”, Verfassungsblog, 8 March 2022, https://verfassungsblog.de/ the-eus-ban-of-rt-and-sputnik/.

127 Philippe, 2019; for more, see: “Exclusive: Putin’s Plans to Keep the Baltics in Check”, https://news.yahoo.com/exclusive-putins-plans-to-keep-the-baltics-in-check-220033457. html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAALIG5TN6m6oCPWACiMmzWoYd9Jzn3wxN63iNRLjunVztFiAKZOAT-bCUnklb0bCP_XpKPsAztPH2jNwPf-7KDH3_zZV_3jD_DxXrpTuKbI4vby_xr17sxa6kQPCKe9xybcvqyTe1PljRuN4KE73Fnl8PKLzTRXeEjlTwcPH-Gve2.

128 “Latvijos parlamentas patvirtino draudim˛a išduoti leidimus laikinai gyventi šalyje Rusijos ir Baltarusijos pilieˇciams”, LRT.lt, 7 April 2022, https://www.lrt.lt/naujienos/pasaulyje/6/1666809/latvijos-parlamentas-patvirtino-draudima-isduoti-leidimus-laikinai-gyventi-salyje-rusijos-ir-baltarusijos-pilieciams.

129 “Estonia Revokes Residence Permit of Russian Citizen Who Has Lived There Almost His Whole Life”, Schengenvisa News, 29 November 2022, https://www.schengenvisainfo.com/news/estonia-revokes-residence-permit-of-russian-citizen-who-has-lived-there-almost-his-whole-life/.

130 Amendment of Articles 24, 30, 31, 32, 33 and 36 of the

2.2. Explicit Memory Laws of Non-Punitive Character

This report proceeds from Eva-Clarita Pettai’s definition of non-punitive memory laws; that is, legal acts intended to ‘rehabilitate and compensate the victims of Stalinist crimes, to provide recognition and commemorate, but also to repeatedly condemn the criminal character of the past regime and to sanction those who conspired with it’.

135 As Eric Heinze argued in 2017, the notion of ‘memory law’ helps to understand certain debates in jurisprudence emerging from a post-World War II and post-colonial world, but accounts for only certain types of specially consecrated norms. He proposed instead the adoption of a phrase such as ‘law affecting historical memory’ if we wish to grasp the broader processes through which the law guides our understanding of the past.136

These non-punitive memory laws can be divided into two groups:

1) laws pertaining to the cause of transitional justice, with concrete consequences for property restitution, rehabilitation, compensation and recognition for the victims, lustration, and the declassification of secret service files (vetting).137 Another major part of the transitional justice process was the establishment of the specific institutions dealing with the past crimes in all three Baltic States.

2) laws seeking some kind of symbolic satisfaction to set the boundaries for the Russian influence in the region.

Transitional Justice

The field of memory studies (and memory politics) overlaps with the field of transitional justice that emerged out of World War II and the Nuremberg trials, came into wider currency in the 1980s, and gathered momentum in connection with the collapse of the USSR. In the Baltic context, Eva-Clarita Pettai and Vello Pettai introduced the term ‘retrospective justice’ to refer to Stalinist crimes.138 While intertwined, the relationship between memory politics through memory laws and transitional justice can be uneasy. As Janine Natalya Clark has explained: ‘while transitional justice processes call upon individuals and societies to recall and remember, memory practices – and more specifically the frequent politicization of memory in transitional societies – can undermine transitional justice goals, including peace and reconciliation’.

139

a) Restitution of Property

States that wanted to remedy injustices chose restitution rather than reparation, which aims to accelerate free market development.140 All three Baltic states addressed property restitution, passing laws to return property or compensate rightful owners or their descendants after 1990.141

In the Lithuanian case, the restitution process evolved in the general context of privatisation, which started in 1991.142 The state prioritised restitution over privatisation, avoiding a complete break with the communist

Law on Citizenship of the Republic of Lithuania No. XI-1196, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/17e76122cd5411ed9b3c9397e1236c2a?jfwid=7byfzxcnw.

131 “Latvia Asking Russians Crossing Its Borders to Sign Document Condemning War in Ukraine”, Schengenvisa News, 9 August 2022, https://www.schengenvisainfo.com/news/latvia-asking-russians-crossing-its-borders-to-sign-document-condemning-war-inukraine.

132 “Baltic States Plan to Deprive Putin-Supporters of Citizenship”, Kyiv Post, 12 August 2022, https://www.kyivpost.com/post/1803.

133 Gaile Jaruševiˇci-ute-Mockuviene, “Seimas prieme griežtesnes priemones Rusijos ir Baltarusijos pilieˇciams, bet atsisakyta si-ulymo riboti pilietybes suteikim˛a”, LRT.lt, 4 April 2023, https://www.lrt.lt/ naujienos/lietuvoje/2/1955600/seimas-prieme-grieztesnes-priemones-rusijos-ir-baltarusijos-pilieciams-bet-atsisakyta-siulymo-riboti-pilietybes-suteikima.

134 “Lithuania Deems 1,164 Belarusian and Russian Nationals a Threat, Revokes Residence Permits and Visas”, LRT.lt, 4 August 2023, https://www.lrt.lt/en/news-in-english/19/2050524/lithuania-deems-1-164-belarusian-and-russian-nationals-a-threat-revokes-residence-permits-and-visas.

135 Pettai, 2022, p. 176.

136 Heinze, 2017, p. 415.

137 For more on vetting, see Lavinia Stan and Nadya Nedelsky, Encyclopedia of Transitional Justice, Cambridge University Press, Cambridge, 2013; Pettai and Pettai, 2014.

138 Pettai and Pettai, 2014, p. 375. In this book, Pettai and Pettai discuss the attempts made by Baltic politicians to transfer the requirements for restoring truth and justice to a pan-European level in the ‘battle for the memory field’. The authors have written about the ‘politics of truth and justice,’ ‘transitional justice’ and ‘retrospective justice’ in the post-communist period. They use the latter two concepts to identify the temporal dimensions of the same phenomenon covering the recent and more distant past.

139 Janine Natalya Clark, “Re-thinking Memory and Transitional Justice: A Novel Application of Ecological Memory”, Memory Studies, 2021, vol. 14, no. 4, pp. 695–712.

140 Karadjova, 2004.

141 Appel, 2005, p. 389.

142 Information from here is summarized in the report, European Commission Directorate-General for Justice and Consumers, “Honouring Civil Courage: Developing Suggestions to Improve the Situation of Victims of Communist State Crimes”, https://www. stiftung-hsh.de/assets/Dokumente-pdf-Dateien/EU-Projekt-Laen-

system and creating an independent democratic state based on restitutio ad integrum (i.e. restoration to original condition). Restoring the sovereignty of the Lithuanian state made restitution of confiscated property the state’s policy. One of the first laws adopted in Lithuania after the declaration of independence in 1991 was the ‘Restitution Law’ (‘on the restoration of the rights of ownership of citizens to the existing real property’) on the order and conditions of restoration of the citizen’s rights to the extant immovable property,143 which was revised in 1997.144 Restitution was only possible for immovable property and other types of lost property were not compensated. The first version of this law stressed the restoration of property nationalised by the Soviet regime after 1940:

This law regulates the procedure and conditions for the restoration of ownership rights of citizens of the Republic of Lithuania whose immovable property was nationalized or otherwise unlawfully socialized in accordance with the laws of the USSR (LTSR), which is in the possession of state, public, cooperative organizations (companies) or collective farms on the date of adoption of this law (Article 1).

The newer, 1997 version of the law suggested clearer definitions of what is considered ‘owner of the real property’; that is, a person whose real property was nationalised under the laws of the USSR (Lithuanian SSR) or which was otherwise unlawfully made public and to whom the rights of ownership to the existing real property are being restored according to this Law (Article 1 (4)).

derstudien.pdf.

143 Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property of the Republic of Lithuania of 18 June 1991, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_ id=1445&p_tr2=2.

144 Law on Restoration of Property Rights of Citizens of the Republic of Lithuania to Surviving Real Estate of the Republic of Lithuania of 1 July 1997, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/ TAIS.41505?jfwid=-m55ck2q50.

145 Principles of Ownership Reform Act of the Republic of Estonia, https://www.riigiteataja.ee/en/eli/525062015006/consolide.

146 Law ‘On the determination and compensation of the cost of unlawfully transferred property’ of the Republic of Estonia of 19 May 1993, https://www.riigiteataja.ee/akt/993285.

147 World Jewish Restitution Organization, “Estonia”, https://wjro.org. il/our-work/restitution-by-country/estonia/.

Estonia followed suit with the adoption of the 1991 ‘Principles of Ownership Reform Act’,145 which aimed for the ‘return of property to, or compensation of, former owners or their legal successors for property in the course of ownership reform shall not prejudice the interests protected by law of other persons or cause new injustices’ (Article 2 (2)). The following unlawfully expropriated property was to be returned or compensated for:

1) property which was nationalized pursuant to legislation which has been declared unlawful by the Republic of Estonia Supreme Council Resolution of 19 December 1990 Concerning Restoration of Continuity of Right of Ownership;

2) property which was communized during collectivization (‘kolkhozation’);

3) property which was expropriated through unlawful repression, including exile or deportation. For the purposes of this Ownership Reform Act, unlawful repression means either judicial or extra-judicial repression (death penalty, imprisonment, exile or deportation) pursuant to unlawful decisions or decisions which were later declared unlawful (Articles 3 and 6).

The procedure for the valuation of expropriated property is fixed by the ‘Unlawfully Expropriated Property Valuation and Compensation Act’ and other laws.146 The law for the restitution of private property, the ‘Principles of Ownership Reform Act’, has no citizenship or residence requirement and includes both Nazi and Communist expropriations. Private property restitution has largely been completed in Estonia.147

149 Law ‘On Land Privatisation in Rural Areas,’ of the Republic of Latvia of 9 July 1992, http://www.proyectos.cchs.csic.es/transitionaljustice/sites/default/files/maps/info/restitution-property/ latvia_land_restitution_1992.pdf.

150 World Jewish Restitution Organization, “Latvia”, https://wjro.org. il/our-work/restitution-by-country/latvia/. See the report of 2016, “Overview of Immovable Property Restitution/Compensation Regimes – Latvia (as of 13 December 2016)”, https://wjro.org.il/cms/ assets/uploads/2020/06/latvia-report_12.13.2016.pdf.

151 World Jewish Restitution Organization, “Lithuania”, https://wjro. org.il/our-work/restitution-by-country/lithuania/.

152 Austeja Masiokaite-Liubiniene, “Lithuanian PM Proposes Compensation for Expropriated Jewish Private Property”, LRT.lt, 15 November 2022, https://www.lrt.lt/en/news-in-english/19/1821542/ lithuanian-pm-proposes-compensation-for-expropriated-jewish-private-property.

148 However, the reform of rural lands started in 1990; see ‘Law Concerning Lands Reform in the Rural Areas of the Republic of Latvia,’ of 21 November 1990, https://likumi.lv/ta/en/en/id/72849-law-onland-reform-in-the-rural-areas-of-the-republic-of-latvia.

The law ‘on land privatization in rural area’ adopted in 1992 by the Supreme Council of the Republic of Latvia contained similar tasks as in Lithuania, to:148

1) create the basis and guarantees for agricultural development;

2) restore the land ownership rights to the former owners of land, which belonged to them on 21 July 1940 or to the heirs thereof;

3) transfer land into ownership with remuneration to the citizens of the Republic of Latvia.149

The private property claims process covered property seized from the beginning of 1940 and had no citizenship or restitution requirement.150 However, the restitution in Lithuania and Latvia has yet to be completed with respect to Jewish property before 1941. Lithuania has implemented a claims program for the restitution of, or compensation for, confiscated private property –but the program excluded most of the Lithuanian Jews living abroad.151 Unlike in Estonia and Latvia, the Lithuanian restitution laws applied only to citizens, which precluded most foreigners with Lithuanian origins from recovering confiscated property. In 2022, Prime Minister Ingrida Šimonyte proposed that the Lithuanian government set up a €37 million fund to compensate the Jewish community.152 On the eve of 2023, the Lithuanian parliament passed a law to set aside over €37 million as restitution for Holocaust survivors and their heirs.153 Similarly, in October 2022, Latvia passed a Holocaust restitution bill that includes compensation for lost Jewish property.154 This question is less sensitive in Estonia, as there were only a few pre-war Jewish religious or communal properties (which were primarily leased), and

153 David I. Klein, “Lithuania Passes Law Allocating 38 million in Restitution for Holocaust Survivors”, Times of Israel, 31 December 2022, https://www.timesofisrael.com/lithuania-passes-law-allocating-38-million-in-restitution-for-holocaust-survivors/.

154 “Latvia Passes Long-awaited Holocaust Restitution Law”, euronews, 10 February 2022, https://www.euronews.com/2022/02/10/ latvia-passes-long-awaited-holocaust-restitution-law.

155 World Jewish Restitution Organization, “WJRO Estonia Operations”, https://wjro.org.il/our-work/restitution-by-country/estonia/.

156 See 2016 project for more details on Estonia and Lithuania, Latvia is excluded from this report: European Commission Directorate-General for Justice and Consumers, “Honouring Civil Courage: Developing Suggestions to Improve the Situation of Victims of Communist State Crimes”, https://www.stiftung-hsh.de/assets/ Dokumente-pdf-Dateien/EU-Projekt-Laenderstudien.pdf.

some of which have been returned.155

b) Rehabilitation, Compensation and Recognition for the Victims

The USSR itself carried out the first rehabilitation wave, as the Baltic states could not legally do so after Stalin’s death (as they were not independent states at the time). After Stalin’s death in 1953, numerous measures were taken to liberalise the totalitarian regime, including rehabilitation. The USSR Supreme Council created a commission to review such cases and decided if they could be released from prison or exile. This initiative allowed some politically repressed people to return home, but they had to follow strict residence and work restrictions. Soviet rehabilitation resumed in 1988. The Supreme Council of the USSR and leading institutions declared that rehabilitation must be renewed and completed. 156 The Lithuanian Supreme Council made the first decisions concerning the rehabilitation of politically repressed persons in 1989.157 There are several laws regarding the rehabilitation, compensation and recognition for the victims, first among them being the 1990 ‘Law of Rehabilitation’ (‘on restoration of the rights of persons who resisted the occupational regimes’),158 which was edited, updated and renewed several times, the latest version adopted in 2017.159 The second law was on state pensions, enacted in 1994, which refers to various categories of persons who became victims of the occupations and World War II, including the victims of communism.160 Other relevant laws included the law ‘regarding social support for persons injured during mandatory military service in the Soviet Army and for the families of those killed in this army (July 22, 1945 –

158 Law ‘On Restoration of the Rights of Persons Repressed for Resistance to the Occupation Regimes of the Republic of Lithuania,’ of 2 May 1990, https://www.e-tar.lt/portal/legalAct.html?documentId=TAR.7A23697137FA.

159 Law ‘On Restoration of the Rights of Persons Repressed for Resistance to the Occupation Regimes of the Republic of Lithuania’ version of 1 January 2017, https://e-seimas.lrs.lt/portal/legalAct/lt/ TAD/TAIS.179/QnJRowQmOG?jfwid=-m55ck2kvx.

160 Law ‘On State Pensions of the Republic of Lithuania’ of 22 December 1994, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.15162. Version of 2022, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/

157 Law ‘On the Rehabilitation of Persons Evicted from the Territory of the Lithuanian SSR in the Years 1911–1952,’ of the Republic of Lithuania of 21 October 1988, https://e-seimas.lrs.lt/portal/legalAct/ lt/TAD/6e09a4d06d8211e5b316b7e07d98304b?positionInSearchResults=0&searchModelUUID=ba7370e9-c766-4d79-8be3-a9269 9800b64. Lithuanian Council of Ministers, “Regarding compensation for rehabilitated persons, arrested or convicted since 1940 June 15 until 1981 June 1”, of 24 July 1989, https://e-seimas.lrs. lt/portal/legalActPrint/lt?jfwid=-fxdp77fm&documentId=330e24006c0111e5b316b7e07d98304b&category=TAD.

December 31, 1991)’,161 and the law ‘on the status of participants of the Second World War living in Lithuania who fought on the side of the anti-Hitler coalition’.162

Further important laws on the issue were adopted in 1997: the law ‘on the legal status of victims’,163 the law ‘on the legal status of the participants in the Lithuanian Republic’s resistance against the occupations of 1939–1990’,164 the law ‘on state support to the participants of armed resistance’,165 and the law ‘on the recognition of the legal status of the participants of the resistance to the occupations of the Republic of Lithuania in 1940–1990 and the equalization of military ranks and awards of volunteer soldiers’.166 Yet another set of laws was adopted in 1998, including the law ‘on state support to the families of victims of resistance to the occupations of 1940–1990’167 and the regulation by the Cabinet of Ministers ‘regarding the recognition of the legal status of persons who suffered from the occupations of 1939–1990, the issuance of certificates and the approval of their accounting regulations’.168

Similarly, in Estonia, Soviet rehabilitation legislation was insufficient for rehabilitating the victims of communist repressions/crimes and restoring justice.169 In 1990, the Presidium of the Supreme Soviet of the Estonian SSR

TAIS.15162/asr.

161 Law ‘On Social Assistance to Persons Wounded during Compulsory Military Service in the Soviet Army and to the Families of those who Died in that Army (1945.07.22.–1991.12.31.),’ of the Republic of Lithuania of July 20, 1994, https://e-seimas.lrs.lt/portal/ legalAct/lt/TAD/TAIS.5931/asr.

162 Law ‘On the Status of Participants in the Second World War Who Fought on the Side of the Anti-Hitler Coalition Living in Lithuania,’ of the Republic of Lithuania of 20 August 1996, https://e-seimas. lrs.lt/portal/legalAct/lt/TAD/TAIS.30546?positionInSearchResults=0&searchModelUUID=ba7370e9-c766-4d79-8be3-a9269980 0b64.

163 Law ‘On the Legal Status of Persons Victims of the Occupations of 1939–1990’ of the Republic of Lithuania of 30 June 1997, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.41527?jfwid=bkaxmsli. This law defines those persecuted for reasons of political origin (political, religious, national, social or ethnic origin, etc.) by the occupation authorities of Nazi Germany and the Soviet Union and from 1939–1990, concepts of the categories of victims of occupations and establishes the main criteria for recognizing the legal status of victims. Those who have been recognized as victims have the right to receive statutory social welfare and other benefits and state support.

164 Law ‘On the Legal Status of Participants of the Resistance’ of the Republic of Lithuania of 23 January 1997, https://www.e-tar.lt/ portal/lt/legalAct/TAR.BFB136428878.

165 Law ‘On State Support for Participants in Armed Resistance of the Republic of Lithuania,’ of 25 November 1997, https://www.e-tar.

therefore issued the law resolution on ‘rehabilitation of extra judicially repressed and unjustly convicted persons’, which was a further step in rehabilitating persons sentenced on political grounds as anti-Soviet ‘elements’.170 It was followed by the ‘Rehabilitation of Extrajudicially Repressed and Groundlessly Prosecuted Persons Act’ in 1992,171 and then the ‘Persons Repressed by Occupying Powers Act’ was adopted in 2003, which stated the categories of victims of Soviet and Nazi occupational regimes in Estonia and the methods of supporting them.172

The first, often referred to as ‘The Rehabilitation Act’, concerned the following categories of repressed persons/victims:

1) Persons who were repressed by the extrajudicial sentences of the repressive bodies (i.e. deportees and persons who were sentenced to death, to imprisonment in labor camps, or to exile by the Special Board of the USSR NKVD/MVD/MGB);

2) Persons who were sentenced according to certain (political) articles of the CC of the Russian SFSR (‘counterrevolutionary crimes’ and several other crimes, articles). It concerned the larger number of persons who were arrested and sentenced on political grounds in 1940–1960. Even persons who were

lt/portal/legalAct.html?documentId=TAR.D841592F4E8A. Current version of 2015, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/ TAIS.47306/asr.

166 Law ‘On the Recognition of the Legal Status of the Participants of the Resistance to the Occupations of the Republic of Lithuania in 1940–1990 and the Equalization of Military Ranks and Awards of Volunteer Soldiers,’ of 3 July 1997, https://www.e-tar.lt/portal/lt/ legalAct/TAR.734A7DC6049D. Current version of 2012, https:// www.e-tar.lt/portal/lt/legalAct/TAR.734A7DC6049D/asr.

167 Law ‘On State Support for the Families of the Participants in the Resistance to the Occupations of 1940–1990,’ of 6 October 1998, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.64925/PcLNmWzEsx. This law establishes the procedure for providing state support to the families of participants who died in the resistance to the occupations of 1940–1990.

168 Law ‘On the Approval of the Regulations on the Recognition of the Legal Status of Persons Who Suffered from the 1939–1990 Occupations, the Issuance of Certificates and their Accounting,’ of the Republic of Lithuania of 26 February 1998, https://www.e-tar. lt/portal/legalAct.html?documentId=TAR.C91FAA3070C8. Current version of 2017, https://www.e-tar.lt/portal/lt/legalAct/TAR. C91FAA3070C8/asr.

169 For more, see European Commission Directorate-General for Justice and Consumers, “Honouring Civil Courage: Developing Suggestions to Improve the Situation of Victims of Communist State Crimes”, https://www.stiftung-hsh.de/assets/Dokumente-pdf-Dateien/EU-Projekt-Laenderstudien.pdf.

170 Rehabilitation of Extrajudicially Repressed and Unjustly Convic-

sentenced by the Special Board were mostly convicted for those ‘crimes’;

3) Persons who were sentenced according to certain (political) articles of the CC of the Estonian SSR.

Meanwhile, the so-called ‘Repressed Persons Act’ of 2003 used the term ‘unlawfully repressed person’, which is which is synonymous with ‘victim of Communist (or also Nazi) crimes’. In comparison with the ‘Rehabilitation Act’, the categories of victims are expanded here.

In Latvia, the Council of Ministers of the Latvian SSR in 1988 adopted the decision ‘on unjustified administrative deportation of citizens from the Latvian SSR in 1949’, which rehabilitated all deported citizens.173 One year later, the Presidium of the Supreme Council of the Latvian SSR adopted a decree ‘on the forties and fifties of the Latvian SSR rehabilitation of citizens deported from the territory’, which stated that ‘the administrative deportation of citizens from the territory of the Latvian SSR, which was carried out in the forties and fifties without the decisions of judicial bodies, to be recognized as illegal and unjustified, and the citizens who were deported – as rehabilitated’.174 In 1990, it was followed by the ‘Law Concerning the Rehabilitation of

ted Persons Act of the Republic of Estonia of 19 February 1990, https://www.riigiteataja.ee/akt/28230. About the rehabilitation process by the Supreme Court, see, Herbert Lindmäe, Nõukogude okupatsioonirežiimi ohvrite rehabiliteerimisest Riigikohtus (eng: About the Rehabilitation of the Victims of the Soviet regime in Supreme Court), Juridica, 1995, vol. 10, pp. 430–434.

171 Decree of Presidium of the Supreme Council of LSSR, ‘Rehabilitation of Extra judicially repressed and Groundlessly Prosecuted Persons,’ of 8 June 1989, http://www.archiv.org.lv/LVA/skolam/ aizvestie/51.htm. To recognize as null and void all decisions of the Soviet repressive bodies by which extrajudicial repression has been carried out: 1) Citizens of the Republic of Estonia regardless of the place where the decision was made; 2) persons for acts committed on the territory of Estonia, 3) Persons in Estonia for acts committed outside the territory of Estonia, 4) To consider the persons indicated in paragraph 1 as victims of state arbitrariness, who have all the rights prescribed for rehabilitated persons.

172 Law ‘On Persons Repressed by Occupation Regimes’ of the Republic of Estonia of 17 December 2003, https://www.riigiteataja.ee/ akt/106122012010. Persons Repressed by Occupying Powers Act of the Republic of Estonia of 17 December 2003, https://www. riigiteataja.ee/en/eli/520062016002/consolide.

173 Council of Ministers of the Latvian Soviet Socialist Republic Decision no. 350 of 2 November 1988, ‘On Unjustified Administrative Deportation of Citizens from the Latvian SSR in 1949,’ http:// periodika.lv/periodika2-viewer/?lang=fr#panel:pa|issue:181055|article:DIVL185|page:3|block:P3_TB00015.

174 Decree of Presidium of the Supreme Council of LSSR ‘About the

Illegal Repressed People’ by the Supreme Council of the Republic of Latvia, the aim of which was ‘to rehabilitate all those persons, who, on the basis of the RFSSR Criminal Code, have been repressed without any by court sentence, who have been sentenced, or against whom criminal procedures have been completed, based on non-rehabilitative circumstances’.175 The 1992 law ‘on determining the status of a politically repressed person’ determined that a person’s compliance with the status of “politically repressed” is confirmed by documents issued in accordance with the laws of the Republic of Latvia on rehabilitation.176

Other relevant laws were adopted in the period 1995–1996: ‘on the determination of the status of a politically repressed person for victims of the Communist and Nazi regime’,177 ‘Law Concerning the Determination of Repressed Status for Persons Who Suffered under the Communist and Nazi Regimes’,178 and the 1996 law ‘on the status of a participant to the national resistance movement’.179

c) Lustration in the Baltic States

After regaining independence, Estonia, Latvia and Lithuania all underwent lustration processes – the most

LSSR in the 1940s and 1950s

Rehabilitation of Citizens Deported from the Territory of the Soviet Union,’ of 8 June 1989, http://www.archiv.org.lv/LVA/skolam/aizvestie/51.htm.

175 Law ‘On the Rehabilitation of Unlawfully Repressed Persons’ of the Supreme Council of the Republic of Latvia of 3 August 1990, http:// www.proyectos.cchs.csic.es/transitionaljustice/sites/default/files/ maps/info/personal-rehabilitation/latvia_rehabilitation_1990.pdf, https://likumi.lv/ta/en/en/id/76105-on-rehabilitation-of-unlawfully-repressed-persons. https://likumi.lv/ta/en/en/id/76105. In addition, implementation law ‘On the Procedure for the Entry into Force of the Law of the Republic of Latvia’, ‘On Rehabilitation of Illegally Repressed Persons’ of the Republic of Latvia of 3 August 1990, https://likumi.lv/ta/id/76106-par-latvijas-republikas-likuma-par-nelikumigi-represeto-personu-reabilitaciju-speka-stasanas-kartibu.

176 Decision of the Supreme Council of the Republic of Latvia ‘On the Application and Entry into Force of the Law of the Republic of Latvia ‘On Determination of the Status of a Politically Repressed Person,’ of 13 May 1992, https://likumi.lv/ta/id/65542. Law ‘On Establishing the Status of a Politically Repressed Person,’ of the Republic of Latvia of 13 May 1992, https://likumi.lv/ta/id/65541.

177 Law ‘On the Determination of the Status of a Politically Repressed Person for Victims of the Communist and Nazi Regime,’ of the Republic of Latvia of 12 April 1995, https://likumi.lv/ta/en/en/ id/34832.

178 Ibid

179 Law ‘On the Status of a Participant to the National Resistance Movement,’ of the Republic of Latvia of 25 April 1996, https://likumi.

popular method for screening former officials.180 Latvia was the first of the Baltic states to outlaw its local Communist Party in 1991 and since 1993 barred any public organisation, specifically ‘Communist’ and ‘Nazi’, whose ‘activities would contravene the Constitution’.181

By the 1994 ‘Election Law on City and Town Councils’, district councils banned those who belong or have belonged to the salaried staff of the USSR, the Latvian SSR, or another country’s state security, intelligence or counterintelligence services from running in local elections.182 Under the 1995 ‘Regulations on the Procedure for Using Documents of the State Security Committee at the Disposal of the Center for Documentation of the Consequences of Totalitarianism’:

Documents of the State Security Committee, which contain information about full-time and freelance employees of the State Security Committee or informants, whose activity in the State Security Committee has not been recognized by the court as criminal, the Center begins to issue for use for scientific and journalistic purposes 20 years after the original document was written or five years after the death of the person about whom the relevant information is contained.183

This was followed by the adoption of new legislation ‘on the preservation and use of documents of the former State security committee and the determination of individual’s collaboration with the KGB’, which stipulated the systematic vetting of electoral candidates prior to both national and local elections.184 In 1995, a similar rule was established in the ‘Saeima Election Law’ (Article 5):

Persons are not to be included in the lists of candidates and are not eligible to be elected to the Saeima

lv/ta/en/en/id/40103.

180 Ellis, 1996, p. 181.

181 United States Department of State, “Country Report on Human Rights Practices 2003 – Latvia”, 25 February 2004, https://www. refworld.org/docid/403f57c2c.html; Law ‘On the Termination of the Activities of State Security Institutions of the USSR in the Republic of Latvia’, of the Republic of Latvia of 24 August 1991, https://likumi.lv/ta/id/68765-par-psrs-valsts-drosibas-iestazu-darbibas-izbeigsanu-latvijas-republika.

182 Law ‘On the Election of Local Government Councils,’ of the Republic of Latvia of 25 January 1994, https://likumi.lv/ta/en/en/ id/57839-law-on-the-election-of-local-government-councils.

183 Regulation of the Cabinet of Ministers of the Republic of Latvia ‘Regulations on the procedure for the use of State Security Committee documents held by the Centre for Documentation of the Consequences of Totalitarianism,’ of 13 June 1995, https://

if they: belong or have belonged to the salaried staff of the state security, intelligence or counterintelligence services of the USSR, the Latvian SSR or another country, except persons who have been employed at the Planning, Finance or Administrative Departments of the Committee for State Security of the USSR or the Latvian SSR; after 13 January 1991 have been active in the Communist Party of the Soviet Union (the Communist Party of Latvia), the International Front of the Working People of the Latvian SSR, the United Board of Working Bodies, the Organisation of War and Labour Veterans, the All-Latvia Salvation Committee or its regional committees.185

As analysed by Eva-Clarita Pettai between 1994 and 2018, 385 individuals turned to the courts to have their non-collaboration with the KGB legally confirmed, among them several elected representatives and public office holders.186 Of these cases, 309 would eventually go to the courts: in only 15 (or 4.85%) of these cases, the courts established the ‘fact of collaboration with the KGB’. In all other instances, collaboration could not be legally confirmed; in most cases, the information gained from KGB documents was insufficient.187

The Lithuanian strategy focused more on decommunisation than on lustration.188 In 1991, the ‘Resolution No. 418 on the former employees of the state security committee of the USSR’ banned former employees and collaborators from holding local or national government positions for five years.189 However, more detailed regulations were adopted only closer to 2000, which established an extensive scope of lustration in Lithuania: a) 1998 law, which aimed at restricting former KGB employees: ‘Law of the Republic of Lithuania on the evaluation of the State Security Committee of the

likumi.lv/ta/id/35456-noteikumi-par-totalitarisma-seku-dokumentesanas-centra-riciba-esoso-valsts-drosibas-komitejas-dokumentu-izmantosanas-kartibu.

184 Law ‘On the Preservation and Use of Documents of the former State Security Committee and the Establishment of the Fact of Cooperation of Persons with the State Security Committee’ of the Republic of Latvia of 2 June 1994, https://www.vestnesis.lv/ta/ id/57277-par-bijusas-valsts-drosibas-komitejas-dokumentu-saglabasanu-izmantosanu-un-personu-sadarbibas-fakta-ar-vdk-konstatesanu; https://likumi.lv/ta/en/en/id/57277.

185 The Saeima Election Law of the Republic of Latvia of 31 March 2010, https://www.saeima.lv/en/about-saeima/saeimas-velesanas-1/saeimas-velesanu-likums-1.

186 Eva-Clarita Pettai, “Delayed Truth: Latvia‘s Struggles with the Legacies of the KGB”, Cultures of History Forum, 22 July 2019, https://digital.herder-institut.de/publications/frontdoor/deliver/

USSR (NKVD, NKGB, MGB, KGB) and the current activities of the personnel of this organization’ (1998)190 and

b) 1999 ‘Lustration law’, which targeted KGB’s secret collaborators: the ‘Law of the Republic of Lithuania on registration, confession, crediting and protection of persons who secretly cooperated with the special services of the former USSR’.191

According to the 1998 law, former KGB employees were banned from various positions for 10 years: For 10 years from the entry into force of this law, former (NKVD, NKGB, MGB, KGB) personnel may not work in the Republic of Lithuania as state officials or employees in state government and management, self-government, national defense institutions, the State Security Department, the police, the prosecutor's office, courts, the diplomatic service, customs, the State Audit Office and other control and in supervising state institutions, lawyers and notaries, banks and other credit institutions, strategic economic facilities, security services (structures), other services (structures) providing detective services, communication system, pedagogues, educators and managers of these institutions in educational institutions, as well as cannot work (hold a position) related to the possession of a weapon (Article 2).

One year later, the Constitutional Court of the Republic of Lithuania concluded that this regulation of Article 2 is not in contradiction with Lithuanian Constitution.192

Meanwhile, the 1999 ‘Lustration Law’ declared the formation of the so-called Lustration Commission and was the legal basis for the start of the lustration process.

According to the 1999 ‘Lustration Law’:

index/docId/182/file/Pettai_Delayed_Truth_Latvias_KGB_2019.pdf.

187 Ibid

188 Czarnota, 2009, pp. 326–328.

189 Ellis, 1996, p. 190; see also, ‘Concerning Former Employees of the USSR State Security Committee,’ of the Republic of Lithuania of 12 October 1991, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/ TAIS.4257?positionInSearchResults=0&searchModelUUID=3eae5dcc-ea4c-4fc5-a97f-086f4115e520.

190 ‘Law of the Republic of Lithuania on the evaluation of the State Security Committee of the USSR (NKVD, NKGB, MGB, KGB) and the current activities of the personnel of this organization’ of 16 July 1998, https://www.e-tar.lt/portal/lt/legalAct/TAR.DC1DC18DF88B.

191 ‘Law of the Republic of Lithuania on Registration, Confession, Crediting and Protection of Persons Who Secretly Cooperated with the Special Services of the former USSR’ of 23 November 1999, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.91385?jfwid=-1ft-

Persons who secretly cooperated with the special services of the former USSR, whose data are made public in accordance with the procedure established by Article 8, Paragraph 3 or 4 of this Law, for 10 years from the date of publication cannot work in educational institutions as pedagogues, tutors and managers of these institutions, perform duties related to the possession of a weapon, and also to work as public officials or employees of the Republic of Lithuania in state government and management, self-government institutions, national defense system, internal affairs system, customs, prosecutor's office, courts, State Security Department, diplomatic service, State Audit Office and other state institutions performing control and supervision, as well as lawyers and notaries, banks and other credit institutions, strategic economic facilities, communication system, security services and their structures and other services providing detective service’ (Article 9 (1)).

Both the 1998 law and the 1999 ‘Lustration Law’ were extensive: They blocked former officers of the secret services as secret collaborators from the possibility of finding a job in the ‘security services’, namely private security and defiance agencies, but also in banking institutions (both state-owned and private). Moreover, the legislation adopted in 2010 enabled the Genocide and Resistance Research Centre of Lithuania to publish all accessible KGB documents.193 While this initiative helped society to learn about the former KGB structure, its implementation first started in 2011 and is still ongoing.194 Estonia started the lustration process primarily through its 1992 ‘Citizenship Law and Local Election Law’, according to which anyone born after 1940 to parents who were citizens is automatically a citizen,

djcw18.

192 Constitutional Court of the Republic of Lithuania Judgement of 4 March 1999, ‘On the Compatibility of Articles 1 And 2, Article 3(2) and Article 1(1) and (2) of the Law of the Republic of Lithuania on the Evaluation of the State Security Committee of the SSRS and the Current Activities of the Cadres of This Organisation, and of Article 1(1) and (2) of the Law of the Republic of Lithuania on the Implementation of the Law of the Republic of Lithuania on the Implementation of the Law on the Evaluation of the SSRS and the Current Activities of the Cadres of the SSRS,’ https://e-seimas.lrs.lt/ portal/legalAct/lt/TAD/TAIS.75483.

193 Law ‘On Supplementing Article 5 of the Law on the Genocide and Resistance Research Center of the Republic of Lithuania,’ of 30 June 2010, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.377640.

194 Julija Ravaityte, Lustracijos Politikos Lietuvoje Vertinimas (eng: Vetting of the policy of lustration in Lithuania), Politologija, 2015, vol.

and the parents do not have to be ethnic Estonians.195 In addition, the ‘Act on Procedure for Taking Oath’ was enacted in 1992, which targeted another specific group: Estonians who have held positions in the Communist Party or in the security service before 1991.196 The persons, who wanted to take main positions in the Estonia government, needed to take the oath linked with the previous positions during the Soviet occupation:

I swear that I have not been in the service or an operative of a security service, or of an intelligence or counterintelligence service of the armed forces, of a state which has occupied Estonia, or participated in the persecution or repression of citizens because of their disloyalty or the political beliefs or social class that they represented or because they had been part of the civil service or defense forces of the Republic of Estonia.

In 1993, the law ‘on the establishment of a temporary Commission to examine the activity of intelligence structures of the Soviet Union and other states in Estonia’ was adopted – according to which the Commission was obliged to submit to the Riigikogu draft(s) of the security and intelligence bodies of the USSR and other countries the procedures for making the activities, staff and the Agency public (Article 4).197 The 1994 ‘Act Concerning the Collection, Documentation, Archiving and Using Foreign Security and Intelligence Structures in Estonia’ regulated the collection, recording, storage and use of security and intelligence bodies of other countries operating in Estonia and materials related to their activities.198 In 1995, the Estonian Parliament passed the ‘pro-

cedure for registration and disclosure of persons who have served in or co-operated with security organisations or intelligence or counterintelligence organisations of armed forces of states which have occupied Estonia act’ (‘Disclosure Act’), which regulated the registration and disclosure of persons who had served in or co-operated with certain security or intelligence organisations of Nazi Germany and the USSR.199

Lustration in the Baltic states carries some peculiarities among these three states. Contrary to other Baltic states, Latvia was the only one to contain politically significant KGB material in 1991, but it was abandoned in a disorganised state.200 Also, unlike Estonia and Lithuania, Latvia has not published the names of former KGB officers and contacts. In the early 1990s and 2000s, Estonia and Lithuania, respectively, adopted laws allowing former KGB employees to report themselves to state authorities. In Estonia, self-reporters were guaranteed strict anonymity, whereas candidates for high-ranking offices in Lithuania could be disclosed despite self-reporting. In both cases, those failing to self-report would have their identities published. Lithuania, maintaining its hard-line stance, took retribution a step further by announcing that non-reporters would also be fired from their current workplaces.201 The Latvian ban on former KGB agents in key positions falls between the extremes of Estonia and Lithuania. Despite original intentions for substantial de-communisation, Estonia opted for a basic requirement: All elected or appointed officials must swear that they assisted neither Nazi nor Soviet security institutions. Estonia had no automatic background checks like Latvia, but the courts may challenge a false 1, https://www.journals.vu.lt/politologija/article/view/7374/5278.

195 Ellis, 1996, pp. 191–192.

196 Act on Procedure for Taking Oath of the Republic of Estonia of 8 July 1992, https://www.riigiteataja.ee/en/eli/520052014002/consolide.

197 Establishment of a Temporary Commission to Investigate the Activities of the Security and Intelligence Agencies of the Soviet Union and Other Countries of 18 May 1993, https://www.riigiteataja.ee/ akt/13094339#.

198 Act on the Procedure for the Collection, Accounting, Preservation and Use of Materials of the Security and Intelligence Agencies of Other States Operating in Estonia of 10 March 1997, https://www. riigiteataja.ee/akt/121032011028.

199 Act on the Procedure for Registration and Disclosure of Persons Who Have Served or Cooperated with the Intelligence or Counterintelligence Bodies of the Security Bodies or Armed Forces of the Countries That Occupied Estonia of 6 February 1995, https://www. riigiteataja.ee/akt/13315029.

200 Pettai, 2019.

201 Una Bergmane, “The Fate of Former KGB Agents in Latvia”, Foreign Policy Research Institute, 19 March 2018, https://www. fpri.org/article/2018/03/the-fate-of-former-kgb-agents-in-latvia/.

202 Ibid

203 “Commission Chair Urges Formal End to Lustration Process in Lithuania – Daily”, Delfi.en, 9 January 2018, https://www.delfi.lt/ en/culture/commission-chair-urges-formal-end-to-lustration-process-in-lithuania-daily.d?id=76852359. Petras Ragauskas, “Lustration in Lithuania”, https://en.odfoundation.eu/content/uploads/i/ fmfiles/pdf/lustration-in-lithuania-eng.pdf.

204 Edvardas Špokas, “‘Needed but Overdue’: MPs Want Communist Party of Lithuania Labelled Criminal Organization”, LRT.lt, 15 March 2023, https://www.lrt.lt/en/news-in-english/19/1936986/ needed-but-overdue-mps-want-communist-party-of-lithuania-labelled-criminal-organisation; “Lithuanian Parliament Declares Local Communist Party Responsible for Stalinist Repressions”, LRT.lt, 18 May 2023, https://www.lrt.lt/en/news-in-english/19/1992543/

oath. Lithuania took a harder approach than Latvia, adding schools, banks, and private security to the KGBaffiliation prohibition.202

To sum up, while lustration is more or less over in the Baltic states, not everyone is happy with the results.203 This might be why the recent initiative in Lithuania to add the Communist Party of Lithuania, the key structure that implemented the Soviet occupation policy in the country, to the list of criminal organisations together with the Soviet security agency (KGB), secret police agency (NKVD), and Ministry of State Security (MGB).204 This proposal would require all high-ranking party figures who were active before 1990 to declare their activities in the Communist Party of Lithuania in their biographies if running for elected office. Decommunisation is apparently still not over in Lithuania – Lithuanian President Nauseda’s failed to disclose his previous membership in the local communist party in 1988, which is considered a serious obstacle to a second term.205

d) Baltic Institutions for Dealing with Past Crimes

Another significant feature of Baltic memory politics has been history commissions aimed at identifying past crimes during the Nazi and Soviet rule.206 In Estonia, the first such commission formed in 1989 was of a civic nature: Estonian Memento Union (originally ‘Memento’ Union of the Unlawfully Repressed in Estonia).207 Their activities resulted in many volumes on political arrests during the Soviet occupation together with volumes on deportations, communist crimes, Estonians in the Russian, German and Finnish armies, as well as lists of deportees and victims of communism (15 volumes in total

lithuanian-parliament-declares-local-communist-party-responsible-for-stalinist-repressions.

205 “Lithuania’s President Nauseda Failed to Disclose Membership in Communist Party, Documents Show”, LRT.lt, 5 April 2023, https:// www.lrt.lt/en/news-in-english/19/1956765/lithuania-s-president-nauseda-failed-to-disclose-membership-in-communist-party-documents-show.

206 For more, see Pettai, 2015.

207 The Estonian Memento Union, https://www.memento.ee/.

208 The Estonian Memento Union, Memento Books, https://www. memento.ee/trukised/memento-raamatud/.

209 Vello Salo, Okupatsioonide Repressiivpoliitika Uurimise Riiklik Komisjon, The White Book: Losses Inflicted on The Estonian Nation by Occupation Regimes 1940–1991, Riigikogu kantselei, Tallin, 2005, http://www.digar.ee/id/nlib-digar:8192.

210 Ibid

211 See the Commission reports, http://www.mnemosyne.ee/hc.ee/ index_frameset.htm.

as of 2020).208 In 1992, the Estonian Parliament founded the Estonian State Commission for the Examination of the Policies of Repression (the so-called Vello Salo Commission, ESCEPR) for a 3-year term.209 It lasted until 2004, however, with the publication of a ‘White Book’ assessing the economic and human damage caused by the Soviet regime.210 The ESCEPR was followed in 1998 by the Estonian International Commission for Investigation of Crimes Against Humanity (so-called History Commission or Max Jakobson Commission), which delivered numerous reports on past crimes.211 Finally, in 2008, the Institute of Estonian Memory was established on the initiative of President Toomas Hendrik Ilves, the aim being to surpass the framework set for Max Jakobson Commission research and collect data on human rights violations during the Soviet occupation.212

Similarly, in 1988, the Lithuanian independence movement ‘Sajudis’ established a commission to collect the names of those deported during the 1940s. The commission was turned into a research institute after the restoration of Lithuanian independence.213 In 1992, the Supreme Council of the Republic of Lithuania (Restorative Seimas) established the state centre for the investigation of the genocide of the population of Lithuania.214 Reformed in 1993,215 this institute was merged into the Genocide and Resistance Research Centre of Lithuania in 1997, which was intended to investigate all of the manifestations of genocide, crimes against humanity and humaneness, and persecution of the Lithuanian population during the years of occupations.216 To this day, the Genocide and Resistance Research Centre of Lithuania is developing research programmes in the

212 he Estonian Institute on Totalitarian Regimes and Ideologies, Publications, https://mnemosyne.ee/publikatsioonid/.

213 Dovile Budryte, “Genocide and Resistance Research Center of Lithuania”, in Encyclopedia of Transitional Justice, eds Lavinia Stan and Nadya Nedelsky, Cambridge University Press, Cambridge, 2013.

214 Regarding the establishment of the state center for the investigation of the genocide of the population of Lithuania and the procedure for the entry into force of the Law of the Republic of Lithuania “On the Preservation of Archives of Special Importance” of 29 October 1992, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/ TAIS.1827?jfwid=.

215 Law ‘On the Genocide and Resistance Research Center of Lithuanian Population,’ of 16 July 1993, https://e-seimas.lrs.lt/portal/ legalAct/lt/TAD/TAIS.5561?positionInSearchResults=0&searchModelUUID=ba7370e9-c766-4d79-8be3-a92699800b64.

216 Law ‘On the Centre of Research of the Genocide and Resistance of the Lithuanian Population’ of 13 November 1997, https://e-seimas.

field of anti-Soviet resistance, KGB activities, Nazi occupation and Sovietisation. The Centre remains the main state institution engaged with the study of the past crimes,217 together with the International Commission to Assess the Crimes of the Nazi and Soviet Occupation Regimes in Lithuania, which Lithuania President Valdas Adamkus appointed in 1998.218 The President approved the current list of experts to the latter institution in 2012.219

Back in 1992, the Latvian Parliament also convened a commission tasked with creating a documentation centre for preserving and assessing the remaining NKVD/KGB files.220 The Centre for the Documentation of the Consequences of Totalitarianism was established in 1995 as an independent state agency under the Ministry of Justice, aiming to research human rights violations perpetrated by the Soviet regime.221

In 1998, the Latvian Commission of Historians (Latvijas Vesturnieku Komisija)222 – an organisation of historians under the Chancellery of the President of Latvia – was established as an international collegiate body without the rights of a legal entity with the aim to identify and study the topic ‘crimes against humanity during the two occupations of 1940–1956’, as well as to organise the drafting of its final report.223 As of 2015, the commission has released 26 volumes featuring a wide range of opinions, sources, and conversations, but they

lrs.lt/portal/legalAct/lt/TAD/TAIS.48573?jfwid=-brx0ubzzp.

217 Genocide and Resistance Research Centre of Lithuania, http:// genocid.lt/centras/lt/3638/a/.

218 Decree of The President of Lithuania ‘On the International Commission on the Crimes Committed by the Nazi and Soviet Occupation Regimes in Lithuania,’ of 7 September 1998, https://e-seimas.lrs.lt/ portal/legalAct/lt/TAD/TAIS.61915?positionInSearchResults=6&searchModelUUID=752e1562-ac05-4553-8b76-c15e72f5b650.

219 Ibid; see full list of reports, Interational Commission for the Evaluation of the Crimes of the Nazi and Soviet Occupation Regimes in Lithuania, https://www.komisija.lt/tyrimai/?search=&type=Nenurodoma.

220 Eva-Clarita Pettai, “Center for the Documentation of the Consequences of Totalitarianism (Latvia)”, in Encyclopedia of Transitional Justice, eds Lavinia Stan and Nadya Nedelsky, Cambridge University Press, Cambridge, 2013.

221 Pettai, 2015.

222 Regulation of The Cabinet of Ministers of Latvia no. 164 ‘Statutes of the Commission of Historians,’ of 5 May 1999, https://likumi.lv/ ta/id/24155-vesturnieku-komisijas-nolikums. Commission was established on 13 November 1998 under the Order of the President of the Republic of Latvia (Guntis Ulmanis) and the Prime Minister of the Republic of Latvia (Guntars Krasts); see http://periodika.lv/periodika2-viewer/?lang=fr#panel:pa|issue:360313|article:DIVL438|query:komisijas%20v%C4%93sturnieku%20komisiju%20.

223 President of the Republic of Latvia, “Commission of Historians”,

did not constitute a unified commission position on critical matters.224

Another Latvian commission to determine the numbers of victims and locations of mass graves, to collect information regarding repressions and mass deportation of Latvian citizens, and to calculate the costs incurred by the Latvian state as a result of the USSR totalitarian communist occupation regime (‘Commission for Identifying the Number of Victims of the Communist Occupation and their Final Resting Places, Aggregating Information on Repressions and Deportations, and Calculating the Costs to the Latvian State and Its Inhabitations’) was established in 2005 by the Cabinet of Ministers. Its activities were concluded in 2009.225 One more relevant institution was established in 2006 under the ‘Law on the Museum of the Occupation of Latvia’, aimed at promoting ‘the conservation and supplementation of the collection of the Museum of the Occupation of Latvia –a unique and significant part of Latvian cultural heritage – and also the development of the scientific research process of the museum and the educational process of the society’.

226

Also, in 2014, the Cabinet of Ministers established a special interdisciplinary commission for the scientific (including historical and legal) study of the documents of the former State Security Committee, as well as for the evaluation of the material and moral damage

25 March 2021, https://www.president.lv/lv/vesturnieku-komisija.

224 President of the Republic of Latvia, “Articles of the Latvian Commission of Historians”, 17 March 2021, https://www.president.lv/ lv/latvijas-vesturnieku-komisijas-raksti.

225 Commission for Identifying the Number of Victims of the Communist Occupation and their Final Resting Places, Aggregating Information on Repressions and Deportations, and Calculating the Costs to the Latvian State and Its Inhabitations, https:// okupacijaszaudejumi.lv/en/par-komisiju. Order of the Cabinet of Ministers of the Republic of Latvia no. 523 ‘On the Establishment of a Commission to Determine the Number of Victims of the Totalitarian Communist Occupation Regime of the USSR and the Locations of Mass Graves, to Collect Information on Repressions and Mass Deportations and to Calculate the Damage Caused to the State of Latvia and its Population,’ of 5 August 2005, https:// likumi.lv/ta/id/113993-par-komisijas-izveidi-psrs-totalitara-komunistiska-okupacijas-rezima-upuru-skaita-un-masu-kapu-vietu-noteiksanai-informacijas. Informat-ivais zi˛nojums “Par Komisiju PSRS totalit-ar-a komunistisk-a okup-acijas rež-ima upuru skaita un masu kapu vietu noteikšanai, inform-acijas par represij-am un masveida deport-acij-am apkopošanai un Latvijas valstij un t-as iedz-ivot-ajiem nodar-ito zaud-ejumu apr-e˛kin-ašanai”, https://tap.mk.gov.lv/file/files/ psrs_zinojums.doc.

226 Law ‘On the Museum of Occupation of Latvia,’ of 5 October 2006, https://likumi.lv/ta/en/en/id/146475.

227 Order of the Cabinet of Ministers of the Republic of Latvia no. 433

it caused to the Republic of Latvia and its citizens.227 Operating from 2015 to 2018, the commission prepared four volumes of scientific articles, organised several scientific conferences, and it provided information to the media.228

These institutions in the Baltic states were able to establish the facts of the past, which were highly valued in the de-Sovietisation processes in the Baltic states, including lustration, restitution, investigating Soviet crimes at national courts. These were later brought to ECtHR.

Symbolic Satisfaction

a) Removal of Soviet Monuments Monuments can trigger emotions and define group identity.229 Governments typically destroy or erect monuments to form their self-image and, more significantly, to deal with the past.230 The Russian-speaking minority in the Baltics raised dilemmas, as Russophones are a significant minority: 7 per cent of the population in Lithuania, 30 per cent in Latvia and 27 per cent in Estonia.231 The smaller Russian minority in Lithuania has recently decreased further, now a mere 5 per cent.232

Three battles (one in each Baltic state) have been fought over Soviet monuments: the Bronze Soldier in Tallinn (moved from the city centre to a military cemetery in 2007),233 Riga Victory Monument (removed in 2022),234 and the Soviet sculptures on the Green

‘On the Establishment of a Special Interdisciplinary Commission for the Study of Documents of the State Security Committee,’ of 20 August2014, https://likumi.lv/ta/id/268333.

228 University of Latvia, “Government Commission for KGB Research”, https://web.archive.org/web/20170107042117/http://www.lu.lv/ vdkkomisija/eng/; Wikipedia, “Scientific Research Commission of the KGB of the Latvian SSR”, https://lv.wikipedia.org/wiki/Latvijas_ PSR_VDK_zin%C4%81tnisk%C4%81s_izp%C4%93tes_komisija.

229 Enken Laanes, “Sõda, mälu ja identitee”, err.ee, 13 September 2022 https://www.err.ee/1608713830/eneken-laanes-soda-malu-ja-identiteet.

231 Gromilova, 2014.

231 Aleksandra Kuczy´nska-Zonik, “Monument Wars in the Baltic States”, New Eastern Europe, 2016, vol. 6, no. 24, pp. 165–169.

232 https://tass.com/world/1383623

233 For more, see Brüggemann and Kasekamp, 2008; Smith, 2008.

234 Saeima of the Republic of Latvia, “Saeima Passes a Law to Dismantle Sites Glorifying the Soviet and Nazi Regimes”, 16 June 2022, https://www.saeima.lv/en/news/saeima-news/31206-saeima-passes-a-law-to-dismantle-sites-glorifying-the-soviet-and-nazi-regimes. 13th Saeima Draft Law no. 1486/Lp13 ‘On the Prohibition of the Display and Dismantling of Objects Glorifying the Soviet and Nazi Regimes in the Territory of the Republic of Latvia,’ https:// titania.saeima.lv/LIVS13/saeimalivs13.nsf/webSasaiste?OpenView&restricttocategory=1486/Lp13. “Riga Authorities Topple Largest Soviet Monument in Baltics”, LRT.lt, 26 August2022,

Bridge in Vilnius (removed in 2015) symbolise these confrontations.235 Nevertheless, a reported 200–400 Soviet-era memorials or monuments still stand across Estonia.236 The Estonian Parliament passed the ‘Law on the Preservation of War Burial Places’ in 2007, allowing the Bronze Soldier to be moved to the Estonian Defence Forces Cemetery in Tallinn.237 The monument was removed on 27 April 2007, sparking violent protests, while cyberattacks stopped Estonian servers and took down government, bank and media websites. The protests in Tallinn when the ‘Bronze Soldier’ was moved in April–May 2007 illustrate the tension-generating potential of the Russian memory regime.238

In 2011, Estonia adopted the ‘Law Enforcement Act’, which indicates the threat to public order and disturbance as ‘a violation of a legal provision within the area of protection of public order or of a person’s subjective right, or damage to a legal right (Article 5 (1)).239 This law is often applied in cases involving the removal of past monuments, as the law gives the police and Border Guard Board the right to remove objects from the public space that might cause a disturbance.240 The invasion of Ukraine in 2022 has revived controversies over Soviet-era monuments and anxieties about Russian expansionism in the Baltics.241 In 2022, an iconic T-34 tank in the city of Narva, which borders Russia, was relocated to the Estonian War Museum.242

https://www.lrt.lt/en/news-in-english/19/1767043/riga-authorities-topple-largest-soviet-monument-in-baltics; Isabella Kwai, “Latvia Tears down a Controversial Soviet-era Monument in its Capital”, The New Yok Times, 26 August 2022 https://www.nytimes. com/2022/08/26/world/europe/latvia-soviet-monument.

235 html.Kuczy´nska-Zonik, 2016.

236 “Government Office Creating Communist Monuments Register”, err.ee news, 26 July 2022, https://news.err.ee/1608667843/ government-office-creating-communist-monuments-register.

237 Protection of War Graves Act of the Republic of Estonia of 10 January 2007, https://www.riigiteataja.ee/en/eli/508042019007/ consolide.

238 For more, see Brüggemann and Kasekamp, 2008; Smith, 2008; Melchior and Visser, 2011.

239 Law Enforcement Act of the Republic of Estonia of 23 February 2011, https://www.riigiteataja.ee/en/eli/504012016003/consolide.

240 Republic of Estonia Government Office, “Monuments”, https:// riigikantselei.ee/en/monuments. Law Enforcement Act of the Republic of Estonia of 23 February 2011, https://www.riigiteataja. ee/en/eli/504012016003/consolide.

241 Dmitrijs Andrejevs, “Ukraine War Prompts Baltic States to Remove Soviet Memorials”, The Conversation, 17 August 2022, https:// theconversation.com/ukraine-war-prompts-baltic-states-to-remove-soviet-memorials-188388; Eero Epner, “Plats puhtaks!” err. ee, 10 October 2022, https://www.err.ee/1608744730/eero-epner-plats-puhtaks; Maarja Vaino, “Kommunistiklu sümboolika

The fate of many more Soviet-era monuments remains pending.243

The Latvian monument debates mirror those in Estonia, also due to both countries hosting substantial Russian minorities. The Monument to the Liberators of the Soviet Latvia and Riga from the German Fascist Invasion on Riga’s Uzvaras (Victory) square, which was erected in 1985 to honour Soviet soldiers who perished fighting Nazism and to promote the Soviet narrative of liberation, is at the centre of this debate.244 Russian-speaking politicians and the Russian mass media mobilised the Russian minority to oppose what they see as a sign of violence against them in the Latvian media.245 The debates over the removal were triggered in 2012, but it took another decade and the Russian war in Ukraine to remove it under the law adopted in June 2022: ‘On the prohibition of the display of objects glorifying the Soviet and Nazi regimes and their dismantling in the territory of the Republic of Latvia’.246

The Lithuanian monument conflict is less intense; most Soviet-era sculptures honouring communist leaders and the Soviet Army were removed from urban

public spaces in the 1990s, most now on display in The Museum of Soviet Sculpture near Druskininkai.247 In the early 1990s, the focus was more on how to include more symbols of the suppressed past and less on demolishing Soviet monuments. In 1995, the government adopted the state programme for ‘1996–2000 regarding the creation of memorial signs, symbols and monuments for victims of genocide and persons repressed for resisting the occupation regimes’, which promoted the creation of commemorative signs, symbols and monuments for victims of genocide and persons repressed for resisting the occupation regimes prepared by the Genocide and Resistance Research Centre of Lithuania.248 A similar programme was adopted for 2003–2008.249

At the time of writing, the monument removal in Lithuania is part of an administrative and legal dispute.250 The biggest controversy has surrounded the Green Bridge (Žaliasis tiltas) in Vilnius, which, unlike the cases in Estonia and Latvia, is further away from the city centre and not a site bearing any direct reference to World War II.251 In July 2015, the monuments were dismantled ‘for maintenance’ after the Lithuanian

eemaldamine ei ole tühistamine”, err.ee, 14 October 2022, https:// www.err.ee/1608751150/maarja-vaino-kommunistliku-sumboolika-eemaldamine-ei-ole-tuhistamine; “Shooting Red Star: Baltic States Rid Themselves of Soviet Memorials”, TVP World, 30 December 2022, https://tvpworld.com/65378934/shooting-red-star-baltic-states-rid-themselves-of-soviet-memorials.

242 “Estonia Begins Removing Soviet-Era War Monuments”, BBC News, 16 August 2022, https://www.bbc.com/news/world-europe-62562909; “Estonia Removes Soviet Memorial in Border City”, LRT.lt, 17 August 2022, https://www.lrt.lt/en/news-in-english/19/1761462/estonia-removes-soviet-memorial-in-border-city.

243 Amos Chapple, “Estonia’s Contentious Soviet Monuments”, Radio Free Europe/Radio Liberty, 15 August 2022, https://www.rferl. org/a/estonia-soviet-monuments-removal/31989524.html.

244 Gordon F. Sander, “Memory Wars in Latvia”, The New York Review, 21 July 2022, https://www.nybooks.com/articles/2022/07/21/ memory-wars-in-latvia-gordon-sander/.

245 Maria Golubeva, “Different History, Different Citizenship? Competing Narratives and Diverging Civil Enculturation in Majority and Minority Schools in Estonia and Latvia”, Journal of Baltic Studies 2010, vol. 41, no. 3, pp. 315–329.

246 Law ‘On the Prohibition of the Display of Objects Glorifying the Soviet and Nazi Regimes and their Dismantling in the Territory of the Republic of Latvia,’ of 16 June 2022, https://likumi.lv/ta/ id/333439-par-padomju-un-nacistisko-rezimu-slavinosu-objektu-eksponesanas-aizliegumu-un-to-demontazu-latvijas-republikas-teritorija.

247 Kuczy´nska-Zonik, 2016.

248 On the State Programme for 1996–2000 for the Creation of Commemorative Signs, Symbols and Monuments to Victims of the Genocide and Persons Repressed for Resistance to the Occupying

Regime of 1 December 1995, https://e-seimas.lrs.lt/portal/legalAct/ lt/TAD/TAIS.22337?positionInSearchResults=1&searchModelUUID=ba7370e9-c766-4d79-8be3-a92699800b64.

249 On the Approval of the 2003–2008 Programme for the Continuation of Commemorative Signs, Symbols and Monuments to the Victims of the Genocide and to Persons Repressed for their Resistance to the Occupying Regimes of 8 January 2002, https://e-seimas.lrs. lt/portal/legalAct/lt/TAD/TAIS.188155?positionInSearchResults=0&searchModelUUID=ba7370e9-c766-4d79-8be3-a92699800b64.

250 Kuczy´nska-Zonik, 2016.

251 There are some linked with World War II as well; see Ida Mažutaitiene “Okupacines soviet˛u armijos kari˛u paminklai – gražiausios Lietuvos miest˛u vietose”, 15min, 29 August 2014, https://www. 15min.lt/naujiena/aktualu/istorija/okupacines-sovietu-armijos-kariu-paminklai-graziausiose-lietuvos-miestu-vietose-582-449380.

252 “Part of Vilnius Green Bridge Statues Removed”, LRT.lt, 8 September 2015, https://www.lrt.lt/en/news_in_english/29/108687/ part_of_vilnius_green_bridge_statues_removed_.

253 “Monument to Soviet writer Cvirka removed in Vilnius”, LRT.lt, 19 November 2021, https://www.lrt.lt/en/news-in-english/19/1546357/ monument-to-soviet-writer-cvirka-removed-in-vilnius.

254 See “Recommendations for Municipalities Regarding the Removal of Soviet Monuments”, The Department of Cultural Heritage (KPD) has prepared and submitted detailed recommendations to the Lithuanian municipal administrations and the Association of Lithuanian Municipalities regarding the burial places of soldiers of the Second World War of the Soviet Union and the monuments in them https://lrkm.lrv.lt/lt/naujienos/parengtos-rekomendacijos-savivaldybems-del-sovietiniu-paminklu-nukelimo.

255 “Vilnius Antakalnis Cemetery Will No Longer Have Memorial for Soviet Soldiers”, Vilnius.lt, 9 June 2022 https://vilnius.lt/

Immovable Cultural Heritage Assessment Council had recommended in March the removal of the sculptures from the register and moving them to a museum.252 A municipal council resolution removed a less controversial monument in Vilnius of Petras Cvirka, a prominent Soviet-era author and political activist, in 2021.253 The Russo–Ukrainian War triggered the removal of more Soviet monuments under administrative regulations.254

The Vilnius City Council decided to remove the Soviet soldier memorial in the important Antakalnis in June 2022255 but the decision was postponed after the UN Human Rights Committee put interim measures in place in October.256 The statues were nevertheless removed in December, as the Interior Ministry and municipal officials insisted that the UN committee was misled by the arguments of petitioners claiming that the monument will be desecrated and the nearby remains reburied.257

Another monument to Soviet soldiers near Raudon–Castle was removed under the regional municipality regulation.258 The two other largest Lithuanian cities, Kaunas and Klaipeda, are also participating in this process.259 In June 2022, a law on the prohibition of promoting totali-

en/2022/06/09/vilnius-antakalnis-cemetery-will-no-longer-have-memorial-for-soviet-soldiers/.

256 Ignas Jaˇcauskas, “Vilnius Postpones Removal of Soviet Monuments as UN Human Rights Committee Intervenes”, LRT.lt, 15 October 2022 https://www.lrt.lt/en/news-in-english/19/1793785/ vilnius-postpones-removal-of-soviet-monument-as-un-human-rights-committee-intervenes; “Secretary-General Lays Wreath at Antakalnis Cemetery in Vilnius, Lithuania”, UN Photo, 18 November 2013, https://dam.media.un.org/asset-management/2AM9LOBWBR9B?FR_=1&W=1233&H=609.

257 “Vilnius to Remove Soviet Monument Despite UN’s Objection”, LRT.lt, 22 November 2022, https://www.lrt.lt/en/news-in-english/19/1826619/vilnius-to-remove-soviet-monument-despite-un-s-objection; “Vilnius Begins Removing WW2 Monument from Cemetery Despite UN’s Injunction”, LRT.lt, 1 December 2022, https://www.lrt.lt/en/news-in-english/19/1834078/vilnius-begins-removing-ww2-monument-from-cemetery-despite-un-s-injunction.

258 Zigmas Tamakauskas, “Del sovietino okupanto simboliu˛ pašalinimo Raudones pilyje”, Voruta.lt, 2 June 2022, https://www.voruta.lt/ del-sovietinio-okupanto-simboliu-pasalinimo-raudones-pilyje/; “Jau demontuotas Raudones pillies betoninis soviet˛u reliktas”, M-usu laikas, 25 October 2022, https://www.mlaikas.lt/naujiena/krasto-zinios/jau-demontuotas-raudones-pilies-betoninis-sovietu-reliktas.

259 “Lithuania’s Kaunas to Remove Soviet Memorials, Vilnius Won’t Follow Suit for Now”, LRT.lt, 11 April 2022, https://www.lrt.lt/en/ news-in-english/19/1670208/lithuania-s-kaunas-to-remove-soviet-memorials-vilnius-won-t-follow-suit-for-now; “Lithuania’s Klaipeda Starts Dismantling Soviet Monuments”, LRT.lt, 4 July 2022, https://www.lrt.lt/en/news-in-english/19/1732693/lithuania-s-klaipeda-starts-dismantling-soviet-monuments.

tarian and authoritarian regimes (including monuments) and their ideologies – dubbed the ‘de-sovietisation law’ – was drafted’.260 The Parliament approved this law in December 2022, and it came into force in May 2023.261 Local municipalities have been given twenty working days to submit lists of such public spaces to the statefunded Genocide and Resistance Research Centre of Lithuania.262 The so-called de-Sovietisation commission gathered for its first meeting in June 2023, recognising three monuments and two streets as propagating totalitarian, authoritarian regimes.263 However, the question is still pending regarding the removal of the monument to Lithuanian partisan Juozas Krikštaponis, who commanded a battalion that could have been used by the German occupation command in 1941–1943 to persecute and exterminate Jews, prisoners of war and civilians in Belarus.264

Conversely, the removal of the monuments commemorating alleged Nazi collaborators in the Baltic states is not seen as the priority. The examples from Lithuania include the ongoing controversies surrounding the monuments honouring Jonas Noreika (1910–1947),

260 Draft law ‘Draft Law on the Prohibition of the Promotion of Totalitarian and Authoritarian Regimes and Their Ideologies,’ of 3 June 2022, https://e-seimas.lrs.lt/portal/legalAct/lt/TAP/f3908550e30111ec958d91dc02220458; Project No XIVP-1778(2) ‘Of the Republic of Lithuania Prohibition of the Propagation of Totalitarian, Authoritarian Regimes and their Ideologies Legislation,’ of 13 December 2022, https://e-seimas.lrs.lt/portal/legalAct/lt/TAK/36890a806fe811ed8a47de53ff967b64?positionInSearchResults=1&searc hModelUUID=9003e7a2-f9a5-4c42-8622-64204dc9aea6ж; Dovile Lisauskaite, “New ‘Desovietisation’ Law Takes Aim at Lithuania’s Remaining Soviet-Era Signs”, LRT.lt, 6 June 2022, https://www. lrt.lt/en/news-in-english/19/1711669/new-desovietisation-law-takes-aim-at-lithuania-s-remaining-soviet-era-signs.

261 The Republic of Lithuania Prohibition on the Propagation of Totalitarian and Authoritarian Regimes and their Ideologies Legislation of 13 December 2022, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/ b80056227d3211edbdcebd68a7a0df7e?jfwid=nm3dl10uz.

262 “Lithuania’s Desovietisation Law Comes into Effect, Public Spaces to Be Affected”, LRT.lt, 2 May 2023, https://www.lrt.lt/en/news-inenglish/19/1975104/lithuania-s-desovietisation-law-comes-into-effect-public-spaces-to-be-affected.

263 Augustas Stankeviˇcius, “Desovietizacijos komisija ragina nukelti tris paminklus, tarp j˛u ir Krikštaponiui”, LRT.lt, 29 June 2023, https:// www.lrt.lt/naujienos/lietuvoje/2/2024444/desovietizacijos-komisija-ragina-nukelti-tris-paminklus-tarp-ju-ir-krikstaponiui?fbclid=IwAR3pftMuwCajFNg6QNUMyRE2rdIH80MItfwbHXGHil7Ps6tXgN8e3STxOcY.

264 Augustas Stankeviˇcius and J-urate Skeryte, “LGGRTC: Butk˛u Juzes ir Janonio pavadinimai gali likti, Cvirkos nurodyta šalinti”, LRT.lt, 1 August 2023, https://www.lrt.lt/naujienos/lietuvoje/2/2048022/ lggrtc-butku-juzes-ir-janonio-pavadinimai-gali-likti-cvirkos-nuro-

Juozas Krikštaponis (1912–1945) and Kazys Škirpa (1895–1979);265 and from Latvia, the various monuments to honouring the Latvian Legion, a formation in the Waffen-SS.266 Estonian society, back in 2002, was also was split by plans to build a Nazi monument by an organisation representing Estonian soldiers who supported Hitler during World War II.267 In 2019, the Vilnius City Council issued a proposal to rename an alley in central Vilnius named after the World War II-era diplomat and officer Kazys Škirpa, who ‘promoted the Holocaust’.268

b) The Ban on Soviet/Russian Symbols

Joining the EU encouraged the Baltic states to break with Moscow’s main soft power instrument: the master narrative about the USSR as the victorious power decisive in defeating Nazi Germany. For the Baltics, 9 May has always been a day of mixed emotions: While it marks the Soviet victory over Nazi Germany it is also a reminder of how the victory led to a half-century of occupation.269 The irreconcilable narratives of the Baltic states and Russia came to a head around the sixtieth anniversary of the end of World War II in 2005: Lithuania and Estonia refused to participate in the commemorative events in Moscow on 9 May, while Latvian President Vaira Vike-Freiberga accepted the invitation and used the event as opportunity to remind the world about the Baltic World War II experience.270

Estonia was the first to propose a ban on Soviet symbols in 2006,271 but Lithuania was the first to put such a ban into law in 2008: the ‘Lithuanian Code

dyta-salinti.

265 Lev Golinkin, “Nazi Collaboration Monuments in Lithuania”, Genocide Watch, 29 January 2021, https://www.genocidewatch. com/single-post/nazi-collaborator-monuments-in-lithuania.

266 Lev Golinkin, “Nazi Collaborator Monuments in Latvia”, Forward, 27 January 2021, https://forward.com/news/462698/nazi-collaborator-monuments-in-latvia/.

267 Vahur Lauri, “Estonia Split over Nazi Monument”, The Guardian, 24 July 2002, https://www.theguardian.com/world/2002/jul/24/ thefarright.politics.

268 Ram-unas Jakubauskas, Austeja Šataite, “Vilnius to Change Street Named after Škirpa ‘Who Promoted Holocaust’”, LRT.lt, 11 July 2019, https://www.lrt.lt/en/news-in-english/19/1077462/vilnius-to-change-street-named-after-skirpa-who-promoted-holocaust; “Vilnius Decides to Rename Skirpa Street Despite Protests”, The Baltic Times, 31 July 2019, https://www.baltictimes.com/vilnius_decides_to_rename_skirpa_street_despite_protests/.

269 Valentinas Mite, “Baltics: Leaders Differ over Attending Anniversary of Soviet Victory over Nazis”, Radio Free Europe/Radio Liberty, February 23, 2005, https://www.rferl.org/a/1057640.html.

270 Onken, 2007.

271 “Estonia Proposes Ban on Soviet, Nazi Symbols”, Radio Free

of Administrative Offences’ (which also covered Nazi symbols).272 In addition, the ‘Assembly Law’ prohibited the display of Nazi German, USSR or Lithuanian SSR flags, coats of arms and uniforms; the symbols of Nazi or communist organisations; and the performance of the German, USSR or Lithuanian SSR anthems.273 This provoked condemnation from Moscow: the VicePresident of the Russian Duma described the ban as ‘an insult to the memory of the people who overcame fascism under these symbols’.274 Latvia joined the ban in 2019 by amending the ‘Law on Meetings, Marches and Protests’.275 The previous version of this law (1997) stated that ‘during these events, a participant of a meeting, march or picket shall not: use the flags, coats of arms and anthems of the former USSR, Latvian SSR and fascist Germany’.276 The regulation of 2022 states that

(1) A member of a meeting, procession, or picket, during the event shall not: use, including in stylised form, the flags, clothing (uniforms) identifying affinity to the armed forces and the bodies (repressive authorities) for the keeping of laws and order of the former USSR, former republics of the USSR and Nazi Germany and also the elements of such clothing the combination of which (pieces of clothing, accessories, identification marks, cockades, epaulettes, gear) can be clearly visually identified as the abovementioned armed forces or repressive authorities, the coats of arms and national anthems, Nazi swastika, SS signs, St. George ribbons, and

Europe/Radio Liberty, 30 November 2006, https://www.rferl. org/a/1073110.html.

272 Article 188(18): ‘Distribution or Display of Nazi or Communist Symbols’ of the Code of Administrative Offenses of the Republic of Lithuania, https://www.infolex.lt/teise/DocumentSinglePart. aspx?AktoId=103787&StrNr=188-18#.

273 The Republic of Lithuania Law on Meetings of 2 December 1993, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/69fec2a047d411e4ba2fc5e712e90cd4?jfwid=gi8iqaiba.

274 “Komunist˛u protestas prieš SSRS simboli˛u draudim˛a – spalvingas, bet menkas”, Delfi.lt, 19 June 2008, https://www.delfi.lt/news/ daily/world/komunistu-protestas-pries-ssrs-simboliu-draudima-spalvingas-bet-menkas.d?id=17450328.

275 “Latvia Bans Soviet and Nazi Uniforms in Protests and Meetings”, Baltic News Network, 21 June 2019, https://bnn-news.com/latviabans-soviet-and-nazi-uniforms-in-protests-and-meetings-202142; “Latvia Bans Display of Nazi and Soviet Uniforms and Symbols”, LRT. lt, 28 April 2020, https://www.lrt.lt/en/news-in-english/19/1168000/ latvia-bans-display-of-nazi-and-soviet-uniforms-and-symbols.

276 Law ‘On Meetings, Processions, and Pickets,’ of 13 February 1997, https://likumi.lv/ta/id/42090/redakcijas-datums/1997/02/13.

277 The Baltic Course, “Protesting Russia’s Response to MH17 Crash,

Soviet symbols – a sickle and a hammer along with a five-pointed star.

The symbolic historical memory conflicts between the increasingly autocratic Russia and democracies in the CEE intensified after the illegal Russian annexation of Crimea in 2014 and the start of the war in Donbas. In July 2014, Latvia banned Russian singer Oleg Gazmanov from entering the country, arguing that he ‘contributed to undermining Ukraine’s sovereignty and territorial integrity by his actions and statements’.277 In 2016, Lithuania followed suit.278 Lithuanian authorities have blacklisted Gazmanov due to propaganda supporting the Russian aggressions in Ukraine.279

New symbols for 9 May celebrations, such as the so-called St. George ribbon, which was introduced in 2005,280 were first banned in the Baltic states in 2022 together with the other current Russian war symbols, such as the letters ‘Z’ and ‘V’. On 21 April 2022, Lithuania was among the first to explicitly ban new symbols of the Russian war in Ukraine by amending the ‘Lithuanian Code of Administrative Offences’ and the ‘Law on Assemblies’.281 Accordingly, ‘symbols of totalitarian or authoritarian regimes used or used by these regimes to promote military aggression, ongoing or past crimes against humanity and war crimes’ are prohibited in Lithuania. The regulation specified that such symbols ‘shall in all cases be considered to be a two-colored (black and orange) Georgian (St. George’s) ribbon’. The ban also covers other symbols currently used by Russia to promote its war – the letters ‘Z’, ‘V’ and others. The

Latvia Declares Three Pop Singers Personae non Gratae”, Delfi.en, 21 July 2014, https://www.delfi.lt/en/politics/protesting-russias-response-to-mh17-crash-latvia-declares-three-pop-singers-personae-non-gratae.d?id=65349606.

278 “Russian Singer not Allowed to Enter Lithuania”, Radio Free Europe/Radio Liberty, 18 August 2016, https://www.rferl.org/a/ russian-singer-gazmanov-refused-entry-lithuania/27931882.html.

279 “Week in Lithuania. Russian Pop Star Gazmanov Denied Entry to Lithuania”, Baltic News Network, 21 August 2016, https://bnn-news. com/week-in-lithuania-russian-pop-star-gazmanov-denied-entry-tolithuania-149474.

280 Георгиевская ленточка на старых (советских) открытках (eng: Ribbon of Saint George in old (Soviet) postcards), news2, 21 December 2017, https://news2.ru/story/536658/. https://sputniknews. com/20070611/66883914.html.

281 Law amending Article 524 of the Code of Administrative Offences of the Republic of Lithuania of 19 April 2022, https:// www.e-tar.lt/portal/legalAct.html?documentId=5e18e440c0a111ec8d9390588bf2de65; Law amending Article 5 of the Law on Assemblies of the Republic of Lithuania no. I-317 of 19 April 2022, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/abf91d31bfd211ec9f0095b4d96fd400.

display of such symbols is subject to a fine of €300–700; legal entities may be fined up to €1,200. Persistent offenders are subject to a fine of €500–900, and individuals to a fine of €800–1,500. Estonia (21 April 2022)282 and Latvia (31 March 2022),283 where the St. George’s ribbon had already been prohibited, enacted similar legislation on Russia’s pro-war symbols.284

2.3. Quasi-Memory Laws

Declarations and Apologies

Although the Baltic states all faced Soviet occupation and the Holocaust was the most intense in Lithuania, the timing of the various declarations and apologies associated with the period of 1940–1990 vary from state to state. The first group of declarations includes those related only to the Holocaust. In 1990, Latvia adopted the Declaration ‘on the condemnation and inadmissibility of genocide and anti-Semitism in Latvia’.285 Lithuania’s first post-independence president, Algirdas Brazauskas, while on a visit to Israel in 1995, apologised for the deeds of the Lithuanian people who had collaborated with the Nazis and took part in the Holocaust.286 In the statement of 1997, Seimas urged the Government, the Supreme Court of Lithuania and the General Prosecutor’s Office to prepare draft legal acts assessing the criminal nature of organisations and structures that committed state-level genocide and crimes against humanity (‘Regarding the investigation of mass repressions, genocide and other crimes against humanity and humanity and war crimes during the occupation

282 “‘Z’ and ‘V’ Symbols: Estonia Joins Other Baltic States in Banning Pro-Russia War Symbols”, The Nomad Today, 21 April 2022, https://www.thenomadtoday.com/articulo/world/ estonia-joins-other-baltic-states-in-banning-pro-russia-war-symbols/20220421125348017839.html.

283 Law ‘On the Prohibition of the Display and Dismantling of Objects Glorifying the Soviet and Nazi Regimes in the Territory of the Republic of Latvia,’ of June 16, 2022, https://likumi.lv/ta/ id/333439-par-padomju-un-nacistisko-rezimu-slavinosu-objektu-eksponesanas-aizliegumu-un-to-demontazu-latvijas-republikas-teritorija.

284 Dovile Sagatiene, Anna Wójcik and Paula Rhein-Fischer, “Governing the Memory of the Present”, Verfassungsblog, 23 June 2022, https://verfassungsblog.de/governing-the-memory-of-the-present/.

285 Decision of the Supreme Council of the Republic of Latvia ‘On the Declaration “On the Condemnation and Inadmissibility of Genocide and Anti-Semitism in Latvia”,’ of 19 September 1990, https:// likumi.lv/ta/id/72591-par-deklaraciju-par-genocida-un-antisemitisma-nosodijumu-un-nepielaujamibu-latvija.

286 “Speech by the President of the Republic of Lithuania Mr. Algirdas Brazauskas”, 1 March 1995, delivered at the Knesset in Jerusalem at 4.P.M., http://www.proyectos.cchs.csic.es/transitionaljustice/

period’).287 Estonian Prime Minister Andrus Ansip made an address in 2005 in relation to the Klooga concentration camp, which was a Nazi forced labour subcamp of the Vaivara concentration camp complex established in September 1943 in the Harju County of German-occupied Estonia near the village of Klooga. German officers Hans Aumeier, Otto Brennais and Franz von Bodmann commanded the complex, which consisted of 20 field camps, some of which existed only for short periods.288 Another set of declarations has focused on coming to terms with the Soviet past in the Baltic states. The 1991 Lithuanian resolution ‘for 1940–1991 compensation for the damage caused by the USSR to the Republic of Lithuania and its inhabitants’289 was followed by another, 1995-issued Resolution ‘on the calculation of the damage done to the Republic of Lithuania by the army of the former USSR in the years 1940–1991 and by the army of the Russian Federation in the years 1991–1993’, which aimed to validate the former’s damage calculation methodology.290 In 1996, Latvia adopted the Declaration ‘on the occupation of Latvia’, stating that: USSR purposefully carried out genocide against the Latvian people, thus violating the December 9, 1948 Convention on the Inadmissibility of Genocide and its Punishment. The occupation regime destroyed innocent people, repeatedly carried out mass deportations of the population and other repressions, mercilessly punished those who stood up for the restoration of Latvia's independence in an armed or other way, expropriated Latvian citizens’ property illegally and without compensation, and suppressed expressions of free thought. The leadership of the

USSR purposefully poured hundreds of thousands of migrants into Latvia and with their help tried to destroy the identity of the Latvian people. As a result of this policy, the share of Latvians as the main nation decreased from 77 percent to 52 percent.291

In 1998, it was followed by the Declaration ‘on Latvian legionnaires in the World War II’, which stressed that: A certain part of Latvian citizens joined the Latvian Legion voluntarily, but this happened because the USSR carried out genocide in Latvia in 1940–1941. Hundreds of people were shot without trial, tens of thousands were deported to remote areas of the USSR. During this time, Germany also committed war crimes and genocide in Latvia, but they affected the citizens of Latvia on a much smaller scale. Therefore, a certain part of Latvian citizens believed that by joining the legion, they were protecting themselves and their families against new mass repressions by the USSR, which later really followed.292

After the 2000s, the statements declaring the condemnation of both the Nazi and Soviet occupations emerged in the Baltic states. In 2002, the Estonian Parliament adopted a declaration ‘on the damages of the occupation regime in Estonia’, which stressed that: The crimes of the occupying regime in Estonia were only part of the totalitarian regimes of anti-human activity in the world of the XX century. Anti-humanity crimes are timeless. The risk of recurrence of such crimes has not disappeared. Regimes based on extremist ideologies threaten world peace and the free sites/default/files/maps/info/public-apologies/lithuania_Brazauskas_apologies_1995.pdf.

287 Resolution of the Republic of Lithuania ‘On the Investigation of Mass Repression, Genocide and Other Crimes against Humanity and Inhumanity and War Crimes during the Period of Occupation,’ of 6 November 1997, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/ TAIS.46009?jfwid=uu1o99v79.

288 “Address by Prime Minister Andrus Ansip in Klooga, Estonia”, 8 May 2005, https://vm.ee/en/news/address-prime-minister-andrus-ansip-klooga-estonia.

289 ‘On Reparation for the Damage Caused by the TSRS to the Republic of Lithuania and Its Inhabitants in 1940–1991,’ of 4 June 1991, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.1394?jfwid=bkaxln0a.

290 ‘On the Calculation of the Damage Caused to the Republic of Lithuania by the Army of the Former Tsarist Republic in 1940–1991 and the Army of the Russian Federation in 1991–1993,’ of 5 April 1995, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/

TAIS.17347?jfwid=v860vwedq.

291 Declaration of the Republic of Latvia ‘On the Occupation of Latvia,’ of 22 August 1996, https://likumi.lv/ta/id/63838.

292 Declaration of the Republic of Latvia ‘On Latvian Legionnaires in the Second World War,’ of 29 October 1998, https://likumi.lv/ta/ id/218706.

293 Statement of the Republic of Estonia ‘Occupation Regime Crimes in Estonia’ of 18 June 2002, https://www.riigiteataja.ee/ akt/174385.

294 Declaration ‘On Condemnation of the Totalitarian Communist Occupation Regime Implemented in Latvia by the Union of Soviet Socialist Republics,’ of the Republic of Latvia of 12 May 2005, https://www.saeima.lv/arhivs/en/Deklaracija_an.htm.

295 Statement of the Republic of Lithuania of 3 May 2007, Concerning Events in the Republic of Estonia, https://e-seimas.lrs.lt/portal/ legalAct/lt/TAD/TAIS.296492?jfwid=-8xfwh7gdk.

296 Jonas Žemaitis was the head of the Lithuanian state fighting against the occupation, who actually performed the duties of the

development of peoples as long as their criminal nature is to the end unopened and without condemnation.293

A similar declaration was adopted in Latvia in 2005: the Declaration ‘on condemnation of the totalitarian communist occupation regime implemented in Latvia by the Union of Soviet Socialist Republics’ reconfirmed Latvian efforts to ‘restore historical truth and contribute to promoting international stability because it is convinced that political regimes which are based on an extreme ideology will threaten global peace and security, as well as the advancement of human rights and freedoms, as long as the criminal nature of these regimes is not fully disclosed and condemned’.294

In 2007, Lithuania issued the ‘Statement Concerning Events in the Republic of Estonia’, which emphasised that any direct or indirect actions by foreign states inciting further disorders in the Republic of Estonia are and will be considered serious breaches of principles of international law, incompatible with good relations between states and principles accepted in a democratic Europe.295 In 2009, Lithuania also declared one of its post-war partisan leaders as state head during Soviet occupation.296 In 2010, Lithuania adopted a Resolution ‘on compensation to the victims of the USSR aggression perpetrated during and after 11–13 January 1991 and to their families’, which proposed that the Government of the Republic of Lithuania should officially apply to the Government of the Russian Federation concerning compensation payments to the victims of the USSR aggression perpetrated during and after 11–13 January 1991, and to their families.297 In 2017, Seimas adopted

a resolution to assess the criminal activities of the Lithuanian Communist Party.298

The final group of declarations emerged after the Russian invasion of Ukraine in 2022: the Presidents of Lithuania and Romania, the Prime Ministers of Latvia, Estonia and Poland all signed a ‘Joint letter on European memory’ in which they promise to counter the increasingly craven Russian attempts to rewrite history to suit its own distorted, imperialistic narrative.299 In 2023, Lithuania took another step: the Resolution ‘on limiting the terrorist influence of Russia’ was adopted on 21 March, which, among other things, demands the Lithuanian Government to add the Russian Federation to the list of states supporting such terrorism.300

The Renaming of Streets

The renaming of streets is usually under the management of local municipalities, which issue individual decisions in the city councils. In Estonia, for example, the ‘Place Names Act’ (2003) regulates the establishment and use of Estonian place names and the exercise of supervision over this area.301 This process intensified in the Baltic states after 2014. In 2018, the town of Radviliskis in Lithuania renamed a street that had been named after a Soviet hero.302 In 2018, two streets in the Russian-speaking border city of Narva (Estonia), named after early-twentieth-century Communist revolutionaries Albert-August Tiimann and Ansis Daumanis, were also renamed.303 The noticeable outbreak of street-renaming emerged in 2022, when many streets in the Baltic states, including those on which Russian Embassies are located, were renamed to declare support for Ukraine.304

President of the Republic. Law ‘On the Recognition of Jonas Žemaitis as Head of State of Lithuania,’ of 12 March 2009, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.339103.

297 Resolution on Compensation to the Victims of the USSR Aggression Perpetrated during and after 11–13 January 1991 and to Their Families of 19 January 2010, https://e-seimas.lrs.lt/portal/legalAct/ lt/TAD/TAIS.364236?jfwid=j4ag00zu.

298 Lietuvos Respublikos Seimas, “Seimas Adopted a Resolution on Assessing the Criminal Activities of the Lithuanian Communist Party”, 27 June 2017, https://www.lrs.lt/sip/portal.show?p_r=35403&p_ k=2&p_t=174915.

299 “Baltic States, Poland, Romania Urge EU to Counter Russian Falsification of History”, LSM.lv, 22 July 2022, https://eng.lsm.lv/article/ culture/history/baltic-states-poland-romania-urge-eu-to-counter-russian-falsification-of-history.a466447/.

300 Law ‘On Limiting Russia’s Terrorist Influence’ of the Republic of Lithuania of 21 March 2023, https://e-seimas.lrs.lt/portal/legalAct/ lt/TAD/3ba757c2c7ee11ed9b3c9397e1236c2a?jfwid=-vh578s7dn.

301 Place Names Act of the Republic of Estonia of 5 November 2003, https://www.riigiteataja.ee/en/eli/529052014008/consolide.

302 “Radviliškis Town Plans to Rename Street Named after Soviet Hero”, Delfi.en, 7 August 2018, https://www.delfi.lt/en/archive/ radviliskis-town-plans-to-rename-street-named-after-soviet-hero.d?id=78765755.

303 “Estonia: Narva to Rename 2 Streets to Drop Names of Revolutionaries”, The Baltic Times, 20 September 2018, https://www. baltictimes.com/estonia__narva_to_rename_2_streets_to_drop_ names_of_revolutionaries/.

304 “Fourteen Countries Rename or Name about 20 Streets and Squares in Honour of Ukraine”, Promote Ukraine, 30 August 2022, https://www.promoteukraine.org/fourteen-world-countries-renameor-name-about-20-streets-and-squares-in-honour-of-ukraine/; Jüri Nikolajev, “Narva Attempting Again to Rename Streets Named for Local Communist Leaders”, ERR News, 20 August 2022, https:// news.err.ee/1608690622/narva-attempting-again-to-rename-streets-named-for-local-communist-leaders; “Law on Renaming Stre-

Estonia also attempted to rename Narva streets that had been named after local communist leaders.305

At the national level in Lithuania, attempts were made to rename national roads in 2020,306 but the biggest development emerged in 2022 with the adoption of the so-called ‘De-Sovietisation Law’ (‘Law of the Republic of Lithuania on the Prohibition of Propagation of Totalitarian, Authoritarian Regimes and Their Ideologies), which covers the removal/renaming of any public object with a totalitarian background, including public facilities, monuments, sculptures, obelisks, memorial boards, or other objects intended to perpetuate memory or other property owned or controlled by the state or municipalities, or located on land owned by the state or municipality but without an owner.307 No initiatives of a comparably broad scope can be observed in Estonia and Latvia thus far.

Days of Remembrance

Remembrance days in the Baltic states mark three main lines of events: those related to the restoration of statehood, the Soviet past and the Holocaust.308 In

Lithuania, public holidays are determined by the ‘Labor Code’ (2016, entered into force in 2017),309 memorial days by the ‘Law on Memorial Days (1997)’,310 which replaced the ‘The Law on Public Holidays of the Republic of Lithuania’ (1990).311 Estonian regulation is established via the ‘Public Holidays and Days of National Importance Act, Estonian Flag Act’312 and the ‘Employment Contracts Act’.313 In 2002, Latvia adopted the ‘Law about Holidays, Remembrance and Commemorations’, which has been amended many time since then.315

All three Baltic states have nationally regulated holidays on their Independence days (Lithuania on 16 February and 11 March,316 Latvia on 4 May and 18 November, Estonia on 24 February and 20 August). The commemorative calendar linked with the Soviet past is summarised in Table 2 below:

The days dedicated to the commemoration of the Soviet deportations in 1941 (14 June) is common to all Baltic states, as is ‘Europe Day’ on 9 May, and 23 August to commemorate the Molotov–Ribbentrop Pact. But it is only in Latvia and Lithuania that 8 May

ets in Latvia Left for 14th Saeima to Tackle”, Baltic News Network, 13 October 2022, https://bnn-news.com/law-on-renaming-streetsin-latvia-left-for-14th-saeima-to-tackle-239283; “Minsk Avenue in Kyiv Renamed Lithuania Avenue”, LRT.lt, 12 September 2022, https://www.lrt.lt/en/news-in-english/19/1777659/minsk-avenue-in-kyiv-renamed-lithuania-avenue; Mikhaila Friel, “European Countries Are Renaming Streets Where Russian Embassies Are Located in Honor of Ukraine”, Insider, 10 March 2022, https://www. insider.com/european-countries-rename-streets-with-russian-embassies-ukraine-2022-3; Ignas Jaˇcauskas, Vilniaus savivaldybeje – svarstymai pervadinti Giros, Rus˛u gatves, Cvirkos skver˛a (eng: Vilnius Municipality discusses renaming Giros, Rus˛u and Cvirkos squares), LRT.lt, October 25, 2022, https://www.lrt.lt/naujienos/ kultura/12/1808067/vilniaus-savivaldybeje-svarstymai-pervadinti-giros-rusu-gatves-cvirkos-skvera?utm_medium=Social&utm_source=Facebook#Echobox=1666693150.

305 Jüri Nikolajev, “Narva Attempting Again to Rename Streets Named for Local Communist Leaders”, ERR News, 20 August 2022, https://news.err.ee/1608690622/narva-attempting-again-to-renamestreets-named-for-local-communist-leaders.

306 “Lithuania to Rename Roads in Honour of Baltic Way; to Urge Estonia and Latvia to Do the Same”, Baltic News Network, 21 January 2020, https://bnn-news.com/lithuania-to-rename-roads-in-honourof-baltic-way-to-urge-estonia-and-latvia-to-do-the-same-209751.

307 Gytis Pank-unas, “Lithuania’s New Desovietisation Law: What Does It Mean?” LRT.lt, 8 June 2022, https://www.lrt.lt/en/news-in-english/19/1713721/lithuania-s-new-desovietisation-law-what-does-it-mean.

308 For more, see Andrejevs, 2018.

310 Law ‘On Commemorative Days’ of the Republic of Lithuania of 3 July 1997, https://e-seimas.lrs.lt/portal/legalActEditions/lt/TAD/ TAIS.41597.

311 Law ‘On Public Holidays’ of the Republic of Lithuania of 25 October 1990, https://www.e-tar.lt/portal/lt/legalAct/ TAR.78771DF34B40.

312 Estonian Flag Act of 23 March 2005, https://www.riigiteataja.ee/ en/eli/ee/505062014001/consolide/current.

313 Employment Contracts Act of the Republic of Estonia of 17 December 2008, https://www.riigiteataja.ee/en/eli/520062016003/ consolide/current.

314 Law ‘On Public Holidays, Commemorations and Celebration Days’ of the Republic of Latvia of 3 October 1990, https://likumi.lv/ta/ id/72608-par-svetku-atceres-un-atzimejamam-dienam.

315 Ibid

316 Law ‘On the Approval, Entry into Force and Implementation of the Labour Code’ of the Republic of Lithuania of 6 June 2017, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/da9eea30a61211e8aa33fe8f0fea665f?jfwid=-.

317 Ibid

318 Public Holidays and Days of National Importance Act of the Republic of Estonia of 27 January 1998, https://www.riigiteataja.ee/en/ eli/513112013017/consolide/current.

319 Law ‘On Public Holidays, Commemorations and Celebration Days’ of the Republic of Latvia of 3 October 1990, https://likumi.lv/ta/ id/72608-par-svetku-atceres-un-atzimejamam-dienam.

320 Law of Days of Remembrance of the Republic of Lithuania of 3 July 1997, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.41597/ CDkRbDThYI.

309 Law ‘On the Approval, Entry into Force and Implementation of the Labour Code,’ of the Republic of Lithuania of 6 June 2017, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/da9eea30a61211e8aa33fe8f0fea665f?jfwid=-.

Lithuania

PUBLIC HOLIDAYS (Article 123) 317

16 February

Day of Restoration of the State of Lithuania

11 March

Day of Restoration of the Independence of Lithuania

6 July - Statehood (Coronation of Mindaugas, King of Lithuania) Day

MEMORIAL DAYS 320

13 January

Freedom Fighters day

May 8

World War II Remembrance Day

9 May - Europe Day

4th Sunday in May Partisan Day Defenders Day???

14 May - Civil Resistance Day

3 June - Sajudis Day

14 June

Day of Mourning and Hope

15 June

Occupation and Genocide Day

23 June - June Uprising Day

31 July

Day of the Medininkai Massacre

23 August

European Day in memory of the victims of Stalinism and Nazism and Baltic Road Day (Black Ribbon Day)

31 August - Freedom Day

Estonia

PUBLIC HOLIDAYS 318

23 June - Victory Day

DAYS OF NATIONAL IMPORTANCE

4 June - Flag Day

14 June - Day of Mourning

23 August

Day of Remembrance for Victims of Communism and Nazism

22 September - Resistance Day

16 November Day of Declaration of Sovereignty

FLAG DAYS 321

3 January

Commemoration Day of Combatants of the Estonian War of Independence

23 April - Veterans Day

9 May - Europe Day

4 June - Flag Day

14 June Day of Mourning

Table 2. Days of remembrance in the Baltic states

Latvia

PUBLIC HOLIDAYS 319

18 November

Proclamation Day of the Republic of Latvia

DAYS OF REMEMBRANCE AND COMMEMORATION

20 January

Day of Remembrance of the Defenders of the Barricades, 1991

26 January

the date of international (de jure) recognition of the Republic of Latvia

March 2

National Day of Remembrance of Guerrilla Armed Resistance

17 March

National Resistance Movement Memorial Day

25 March

Commemoration of the Victims of the Communist Genocide

8 May

The Day of the Destruction of Nazism and the Day of Remembrance of the Victims of the Second World War

9 May - Europe Day

14 June

Commemoration day for the victims of the Communist genocide

17 June

Day of occupation of the Republic of Latvia

23 August

Day of Remembrance for the Victims of Stalinism and Nazism

1st Sunday of December

The day of commemoration of the victims of the genocide of the totalitarian communist regime against the Latvian people

is highlighted as the World War II Remembrance Day. Lithuania and Latvia are also linked by their remembrance of Soviet occupation (15 June in Lithuania, 17 June in Latvia) and the events of 1991 (13 January in Lithuania, 20 January in Latvia). However, the attempt to re-establish independence during the Nazi retreat in 1944 is only in Lithuania (23 June), as well as the day for partisan movement (the fourth Sunday of May – Partisan Day in Lithuania). Conversely, only Latvia has special days to commemorate the victims of the genocide of the totalitarian communist regime against the Latvian people (the first Sunday of December), Commemoration of the Victims of the Communist Genocide (25 March) and the date of international (de jure) recognition of the Republic of Latvia (26 January). In 2022, a new commemoration day was introduced:

Lithuania

23 August

European Day in memory of the victims of Stalinism and Nazism

15 March

Day of rescuers of Lithuanian Jews (since 2023)323

23 September

Genocide Day of Lithuanian Jews 324

Estonia

23 August

17 March – National Resistance Movement Remembrance Day).322

Regarding the remembrance of Jewish communities, the dates are not so universal across the Baltic Three (see Table 3 below): only 23 August is devoted to the remembrance of the victims of Nazism in all three Baltic countries. Latvia and Lithuania also have specific dates to remember local Jewish communities (23 September in Lithuania, 4 July in Latvia), and since 2023, Lithuania included the ‘Day of Rescuers of Lithuanian Jews’ (15 March).

However, even without formal regulation, some international days are also commemorated in Lithuania, such as 27 January (International Holocaust Remembrance Day), 11 April – International Day of the Liberation of Nazi Concentration Camp Inmates, and 29

Day of Remembrance for the Victims of Stalinism and Nazism

Latvia

4 July

Day of Remembrance for the Victims of the Genocide of the Jewish People

23 August

Day of Remembrance for Victims of Communism and Nazism

321 Estonian Flag Act of 23 March 2005, https://www.riigiteataja.ee/ en/eli/ee/505062014001/consolide/current.

322 Amendments to the Law ‘On Public Holidays, Commemorations and Celebration Days’ of the Republic of Latvia of 3 July 2021, https://likumi.lv/ta/id/324120; See also annotation of the law amendment: Committee of Human Rights and Public Affairs, ‘Annotation of the Amendments to the Law On Public Holidays, Commemorations and Celebration Days,’ http://titania.saeima.lv/ LIVS13/SaeimaLIVS13.nsf/WEBRespDocumByNum?OpenView&restricttocategory=1086/Lp13|4215; President of the Republic of Latvia, “President of Latvia urges the Saeima to designate the 17 March as National Resistance Movement Day and establish an Official Language Day on the 15 October”, 1 October 2019, https:// www.president.lv/en/article/president-latvia-urges-saeima-designa-

te-17-march-national-resistance-movement-day-and-establish-official-language-day-15-october.

323 Law on Commemorative Days no. VIII-397 1 of the Republic of Lithuania Amendment to Article 1 of the Act of Commemoration of the Memorial Day of the European Parliament Law of 22 December 2022, https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/14141dd285de11edbdcebd68a7a0df7e.

324 “Lithuania Marks Holocaust Memorial Day”, LRT.lt, 23 September 2022, https://wwhttp://genocid.lt/centras/en/511/c/w.lrt.lt/en/ news-in-english/19/1785602/lithuania-marks-holocaust-memorial-day; “Lithuania Commemorates National Memorial Day for the Genocide of the Lithuanian Jews”, International Holocaust Remembrance Alliance, 29 September 2011, https://www. holocaustremembrance.com/news-archive/lithuania-comme-

Table 3. Days of Remembrance of Jewish Communities

October (1941, the largest massacre of Jews in Lithuania during the Nazi occupation took place in Kaunas IX Fort).

325

2.4. Judgments of National Courts Relating to Remembrance of the Past Estonia

In the 2000s, the Estonian judicial system was dealing with two main memory laws: the ‘Protection of War Graves Act’ and the ‘Principles of the Ownership Reform Act’. In the first case, the Supreme Court of Estonia discussed the petition of the Tallinn City Council to declare that some articles of ‘Protection of War Graves Act’ enabling the Estonian parliament to regulate the issues pertaining to grave monuments and marks are invalid due to their unconstitutionality.326 The Court dismissed the petition, ruling that the disputed regulations were necessary to fulfil the international obligation of the state to protect the remains and memory of those who died in the hostilities. Although the ‘Protection of War Graves Act’ excludes the right of the local government to decide, the restriction is of modest intensity and proportional.

In another case, the petition of the President of the Republic on the unconstitutionality of the ‘Principles of the Ownership Reform Act’ was satisfied. According to the disputed regulation, the right to legal proceedings shall be guaranteed to those resettlers whose applications for the return of or compensation for unlawfully expropriated property were denied. Those resettlers whose applications for the return of or compensation for property were dismissed have no possibility to exercise their rights.327 The Court ruled that the regulation does not give rise to the right to submit new applica-

tions for the return of, or compensation for, unlawfully expropriated property. It clearly reveals the obvious will of the legislator that those who could request the return of or compensation for unlawfully expropriated property, but who have not submitted a relevant application earlier on, cannot submit a new application; thus, the constitutional principal of clarity was violated.

Latvia

In Latvia, the national legal debates were linked with more varied questions: election rules for Latvian citizens (concept of ‘full-fledged Latvian citizens’), privatisation and genocide by the Soviet regime.

The national rulings on election rules vary in Latvia. According to a judgment in 2000 by the Constitutional Court of Latvia, norms limiting the right to run and to be elected to the Saeima or to a municipal council do not contradict the Constitution.328 And in a ruling in 2003, the Court declared the regulation limiting the right to vote because of detention for criminal offences to be in contradiction with the Latvian Constitution’s concept of ‘full-fledged Latvian citizens’, as ‘in the upto-date democratic phase the challenged norm does not have a legitimate aim and loss of the rights of an individual, created by it, is not proportionate with the public benefit’.329 In 2005, however, the Latvian Constitutional Court rejected the claim that the 20-year restriction for former KGB employees to be elected to the Saeima or a municipal council under the 2004 amendments to the Law ‘on the preservation of documents of the former National Security Committee, use and the fact of cooperation of persons with the KGB detection’,330 contradicted the Constitution.331

On privatisation, the Latvian Constitutional Court morates-national-memorial-day-genocide-lithuanian-jews; “The National Memorial Day for the Genocide Victims of the Lithuanian Jews”, Vilna Gaon Museum of Jewish History, 24 September 2019, https://www.jmuseum.lt/en/news/i/1062/the-national-memorial-day-for-the-genocide-victims-of-the-lithuanian-jews/.

325 Genocide and Resistance Research Centre of Lithuania, “Memorable Dates and Anniversaries”, http://genocid.lt/centras/en/511/c/.

326 The Constitutional Court of the Republic of Estonia Judgement of 8 June 2007 in the Case no. 3-4-1-4-07, https://www.riigikohus. ee/en/constitutional-judgment-3-4-1-4-07.

327 The Constitutional Court of the Republic of Estonia Judgement of 31 January 2007 in the Case no. 3-4-1-14-06, https://www. riigikohus.ee/en/constitutional-judgment-3-4-1-14-06.

328 The Constitutional Court of the Republic of Latvia Judgement of

30 August 2000 in the Case no. 2000-03-01, https://m.likumi.lv/ ta/id/10294.

329 The Constitutional Court of the Republic of Latvia Judgement of 5 March 2003 in the Case no. 2002-18-01, http://www.proyectos. cchs.csic.es/transitionaljustice/sites/default/files/maps/info/case-law/ latvia_election_law.pdf.

330 Amendments to the Law on the Preservation and Use of Documents of the Former State Security Committee and Establishment of the Fact of Cooperation of Persons with the State Security Committee of 28 May 2004, https://likumi.lv/ta/id/89209-grozijumi-likuma-par-bijusas-valsts-drosibas-komitejas-dokumentu-saglabasanu-izmantosanu-un-personu-sadarbibas-fakta-ar-vdk-kon...

331 The Constitutional Court of the Republic of Latvia Judgement of 22 March 2005 in the Case no. 2004-13-0106, https://m.

held a case in 2002 regarding the duty of the country to denationalise real property nationalised by the occupation authorities. The Constitutional Court ruled that ‘The State of Latvia is not responsible for the human rights violations, including nationalisation of property, which were committed by the occupation power in the period lasting half a century. The Republic of Latvia does not have the possibilities and neither is it obliged to compensate in full for all damages caused to persons as the result of actions taken by the occupation power. The legislator had the obligation to take measures to redress, to the extent possible, […] the damages caused by the former regime and to restore justice.332

Another restitution regulation was challenged in another case in 2003, the submitter stating that the national legal norms are discriminating because they create a differentiated attitude to persons who experience the right to receiving compensation. The Court ruled that the challenged legal norms of the law ‘on land privatisation in rural regions’ did not restrict the property rights to those persons who, after December 31 1992, have claimed compensation. As it recognised the right of persons to the once expropriated land, the state gave them the opportunity to choose either land or compensation certificates.333 In addition, the Supreme Court of the Republic of Latvia issued a judgment in a criminal case concerning genocide in 1996, whereby Latvian citizen Alfons Noviks was convicted under Article 681 of the Latvian Criminal Code to life imprisonment for genocide and crimes against humanity (having signed orders for the deportation of Latvian residents in the years 1949–1953).334

The refusal to grant the status as a politically

likumi.lv/ta/id/104512-par-2004gada-27maija-likuma-grozijumi-likuma-par-bijusas-valsts-drosibas-komitejas-dokumentu-saglabasanu-izmantosanu-un-personu-sadarbibas-fakta-ar-vdk-konstatesanu-atbilstibu-latvijas-republikas-satversmes-101pantam-eiropas-cilvektiesibu-un-pamatbrivibu-aizsardzibas-konvencijas-14pantam-un-pirma-protokola-3pantam. dokumentu-saglabasanu-izmantosanu-un-personu-sadarbibas-fakta-ar-vdk-konstatesanu-atbilstibu-latvijas-republikas-satversmes-101pantam-eiropas-cilvektiesibu-un-pamatbrivibu-aizsardzibas-konvencijas-14pantam-un-pirma-protokola-3pantam

332 The Constitutional Court of the Republic of Latvia Judgement of 25 March 2003 in Case no. 2002-12-01, 333 https://www.satv.tiesa.gov.lv/web/viewer.html?file=/ wp-content/uploads/2016/02/2002-12-01_Spriedums.pdf#search=2002-12-01; The Constitutional Court of the Republic

repressed person was discussed in a recent judgment (2020):

Although the response of the occupying power to the members of the resistance movement was always repressive, the severity of the punishments applied over time varied from physical destruction, torture and prolonged detention without any respect for human rights in the 1940s to the 1960s to relatively less severe punishments involving even conditional judicial control. Also, the fighting methods of the members of the resistance movement differed, armed resistance to the military formations of the occupying power or the administration of the regime, or its support was almost always associated with the risk of loss of life or health. On the other hand, resistance to the occupation power after the sixties was not always associated with risks of such a scale, therefore the action of the legislator to divide the resistance movement into two stages, setting the year 1960 as the dividing line, is justified.335

Lithuania

The relevant case law in Lithuania appears to be the most substantive among the Baltic states. The topics have varied from the restitution of property (at least six constitutional cases) to restrictions on former KGB employees (1999), the payment of a one-time allowance to the descendants of the members of the resistance (2004) and genocide issues (2010, 2014 cases).

In the first case involving restitution, the Constitutional Court of the Republic of Lithuania ruled that the provision – requiring compensation if property was nationalised during the Soviet occupation which cannot

of Latvia Judgement of 28 November 2011 in Case no. 201102-0, https://www.satv.tiesa.gov.lv/web/viewer.html?file=/ wp-content/uploads/2016/02/2011-02-01_Spriedums.pdf#search=2011-02-01; constitutional doctrine and now also applied by the EctHR in Case of Savickis and others v. Latvia, 9 June 2022, no. 49270/11, https://hudoc.echr.coe.int/eng#{%22appno%22:[%2249270/11%22]}. [The court] agrees with the respondent Government that this doctrine [state continuity doctrine] is prima facie relevant in the circumstances of the present case; accordingly, it will be duly considered when deciding on the merits of the application.

334 Supreme Court of the Republic of Latvia Judgement of 4 November 1996 in the Case no. #PAK-269, https://www.google. com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiF46Xpo-D9AhXpvKQKHfFdBb-

be returned in kind – does not violate the principles of the inviolability of property or the protection of property rights; as fair compensation also ensures the restoration of property rights.336 In the second case, the Constitutional Court approved the applicant’s claim that ‘having established the consent of the tenants to move to other residential premises provided to them as a necessary condition for the return of residential houses, the Seimas violated Article 23 of the Constitution – it renounced the power of the law to protect property rights and made the realization of these rights dependent on the will of the tenant of the property’.337 In another constitutional case, the Court also approved the claim that ‘only the court can take away, cancel or change the legal relations of ownership and in the presence of the authorities specified in the law’. In this case, the provision of the Government resolution and the permission to review ownership restoration issues for district (city) boards is impossible and contradicts Article 23 of the Constitution of the Republic of Lithuania.338

In 1995, the Constitutional Court of Lithuania recognised that the provision of Article 2 of the law ‘on the procedure and conditions for restoring ownership rights of citizens to remaining immovable property’ that the ownership right to remaining immovable property is restored to a Lithuanian citizen who ‘permanently resides in the Republic of Lithuania’ does not contradict the Lithuanian Constitution.339 In a 2003 case, the applicant claimed that after the amendment of the above mentioned law, citizens to whom property was transferred by a will or contract (purchase–sale, gift or other written document), as well as citizens to whom successors of ownership rights left property by will, lost the right to

restore ownership rights to this property – which thus violated the constitutional principle of the protection of legitimate expectations; but the Court rejected this claim.340 In a case concerning a former KGB officer, the applicant claimed that the provision of the law that forbids former KGB personnel to work in certain fields for 10 years may contradict the Constitution – which gives every person the opportunity to choose employment and business freely. The Constitutional Court of Lithuania ruled again, however, that this regulation does not contradict the Constitution.341

One-time compensation for descendants of members of the resistance in partisan war was debated in 2004. The issue was that the siblings of a deceased resistance combatant who was under 18 and did not have both parents present must submit copies of their parents’ death certificates when applying for the allowance. The petitioner claimed that the regulation unfairly limited state support because the statute did not define orphans as simply those lacking both parents. The Constitutional Court of Lithuania found this regulation constitutional.342

The Constitutional Court has also presided over two significant genocide-related cases. In 2010, the Court ruled that the law ‘On Reparations for the Occupation of the USSR’ did not violate the Constitution, because it did not establish the right of victims of genocide to seek restitution from their perpetrators – natural persons.343 Another case from 2014 dealt with the issue of the broader national definition of genocide, which covered the victims of Soviet crimes; contrary to international definitions. The Court held that Article 99 of the Criminal Code, insofar as this article provides that actions are

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335 Ibid

336 Supreme Court of the Republic of Latvia Judgement of 13 November 2020 in the Case no. SKA-1032/2020, https://www.at.gov.lv/ downloadlawfile/6792.

337 The Constitutional Court of the Republic of Lithuania Judgement of 27 May 1994 in the Case no. 12/93, https://lrkt.lt/lt/teismo-aktai/paieska/135/ta445/content.

338 The Constitutional Court of the Republic of Lithuania Judgement of 15 June 1994 in the Case no. 11-1993/9-1994, https://lrkt.lt/lt/ teismo-aktai/paieska/135/ta446/content.

339 The Constitutional Court of the Republic of Lithuania Judgement

of 15 July 1994 in the Case no. 1/94, https://lrkt.lt/lt/teismo-aktai/ paieska/135/ta455/content.

340 The Constitutional Court of the Republic of Lithuania Judgement of 20 June 1995 in the Case no. 25/94, https://lrkt.lt/lt/teismo-aktai/paieska/135/ta431/content.

341 The Constitutional Court of the Republic of Lithuania Judgement of 4 March 2003 in the Case no. 27/01-5/02-01/03, https://lrkt.lt/ lt/teismo-aktai/paieska/135/ta279/content.

342 The Constitutional Court of the Republic of Lithuania Judgement of 4 March 1999 in the Case no. 24/98, https://lrkt.lt/lt/teismo-aktai/paieska/135/ta352/content.

343 The Constitutional Court of the Republic of Lithuania Judgement of 30 January 2004 in the Case no. 13/03, https://lrkt.lt/lt/teismo-aktai/paieska/135/ta251/content.

343 The Constitutional Court of the Republic of Lithuania Judgement

considered to constitute genocide if they are aimed at physically destroying, in whole or in part, persons belonging to any national, ethnical, racial, religious, social or political group, is not in conflict with the Constitution of the Republic of Lithuania:

Under universally recognized norms of international law, states are under the obligation to adopt national legislation establishing responsibility for genocide. In the practice of the states concerned, the said obligation may also be understood as certain discretion, while taking account of a concrete historical, political, social, and cultural context, to establish, in their national law, a broader definition of the crime of genocide than that established under the universally recognized norms of international law, inter alia, as the possibility of including, within the respective national law, social and political groups in the definition of genocide. (…) according to the universally recognized norms of international law, the actions carried

out during a certain period against certain political and social groups of the residents of the Republic of Lithuania might be considered to constitute genocide if such actions – provided this has been proved – were aimed at destroying the groups that represented a significant part of the Lithuanian nation and whose destruction had an impact on the survival of the entire Lithuanian nation. It has also been mentioned that in case of the absence of any proof of such an aim, in its turn it should not mean that, for their actions against residents of Lithuania (e.g., their killing, torturing, deportation, forced recruitment to the armed forces of an occupying state, persecution for political, national, or religious reasons), respective persons should not be punished according to universally recognized norms of international law and laws of the Republic of Lithuania; in view of concrete circumstances, one should assess whether those actions also entail crimes against humanity or war crimes.344

of 29 November 2010 in the Case no. 09/2008, https://lrkt.lt/lt/ teismo-aktai/paieska/135/ta187/content.

344 The Constitutional Court of the Republic of Lithuania Judgement of 18 March 2014, in the Case no. 31/2011-40/201142/2011-46/2011-9/2012-25/2012, https://lrkt.lt/lt/teismo-aktai/ paieska/135/ta18/content, https://lrkt.lt/en/court-acts/search/170/ ta853/content.

345 Dieter Grimm, “The Holocaust Denial Decision of the Federal Constitutional Court of Germany” in Extreme Speech and Democracy, eds Ivan Hare and James Weinstein, Oxford University Press, Oxford, 2009; for more, see Michael Whine, “Expanding Holocaust Denial and Legislation Against It”, in Extreme Speech and Democracy, eds Ivan Hare and James Weinstein, Oxford

University Press, Oxford, 2009; David Fraser, “‘On the Internet, Nobody Knows You’re a Nazi’: Some Comparative Legal Aspects of Holocaust Denial on the WWII”, in Extreme Speech and Democracy, eds Ivan Hare and James Weinstein, Oxford University Press, Oxford, 2009; Patrick Weil, “The Politics of Memory: Bans and Commemorations”, in Extreme Speech and Democracy, eds Ivan Hare and James Weinstein, Oxford University Press, Oxford, 2009; Belavusau, 2015; for more, see Yakare-Oule Jansen, “Denying Genocide or Denying Free Speech? A Case Study of the Application of Rwanda's Genocide Denial Laws”, Northwestern Journal of Human Rights, 2014, vol. 12, no. 2; András Koltay, “The Concept of Media Freedom Today: New Media, New Editors and the Traditional Approach of the Law”, The Journal of Media Law, 2015, vol. 7, no. 1, pp. 36–64

The Compatibility of the Baltic Memory Laws with the ECHR and EU Law

Decades into the development of memory laws, concerns are mounting over their compatibility with the freedom of speech and rule of law in general.345 This section presents the existing ECtHR and EU case law regarding the memory laws passed in the Baltic states, including those of a punitive nature (e.g. criminal laws addressing the Soviet crimes, or the ban on Russian media outlets after 2014) and non-punitive nature (i.e. laws on restitution and lustration). In addition, potential legal challenges will be exposed regarding some Baltic memory laws, which have not yet undergone ECtHR scrutiny: punitive laws on the criminalisation of denial and quasi-punitive legislations on banning specific symbols from the past.

3.1. Punitive Memory Laws

This section focuses on the ECtHR case law addressing Soviet crimes in the Baltic states and the potential challenge in the context of anti-communist memory laws criminalising denial, which Latvia and Lithuania adopted in the 2010s. The anti-hate speech punitive memory laws (1990–2000s) from the pool of the punitive

Classification of punitive memory laws in the Baltic states

Anti-hate speech punitive memory laws (1990-2000s)

memory laws in the Baltic states are not fully in compliance with the FD 2008, as Lithuania closed the infringement procedure in 2022 and the Estonian case solved in 2023 (since 2020) (see Table 4). Accordingly, these punitive memory laws linked with the criminalisation of denial are presented together.

The General European Legal Template and Potential Implications for the Baltic States

In this context, the main discussion is how freedom of expression, originally embedded within the European legal framework, is limited with respect to talking about historical events. There is a principal question: Which narratives have a right to exist? This question is entangled with an empirical problem of how to distinguish factually false narratives from historically truthful ones, and thus whether the latter should fall outside the protective scope of memory laws.

The general European legal template consists of numerous legal documents, adopted by various institutions, the most relevant of which is 1950 ECHR, which was adopted by the Council of Europe (1949), with

Infringement procedure started in 2020, and resolved in 2023

Addressing Soviet crimes during occupation (1990-2000s)

Anti-communist memory laws (criminalising denial) (2010s)

New punitive memory laws after 2014 (?)

Latvia +

Lithuania

Infringement procedure started in 2021, resolved in 2022

National criminal measures verified in ECtHR cases (Article 7)

No criminal regulation Includes USSR crimes (Article 10 or 17 of ECHR?)

Media laws – administrative measures (verified by the EU Court of Justice in Luxembourg) and restrictions on Russian and Belarusian nationals

Table 4. The Compatibility of the Baltic Memory Laws with the ECHR and EU Law

Estonia

46 member states at the time of writing (after Russia was expelled in 2022),346 and EU legal regulation in the 2000s. When dealing with cases concerning incitement to hatred and freedom of expression, the ECtHR uses two approaches for which the ECHR provides: a) exclusion from ECHR protection , provided for by Article 17 (prohibition of abuse of rights),347 where the comments in question amount to hate speech and negate the fundamental values of the ECHR; and b) setting restrictions on protection, as provided for by Article 10, paragraph 2, of the ECHR348 (this approach is adopted where the speech in question, although hate speech, is not apt to destroy the fundamental ECHR values).349

The text of Article 17 is derived from Article 30 of the Universal Declaration of Human Rights (1948). Equivalent provisions to Article 17 are also found in the International Covenant on Civil and Political Rights (1966), the American Convention on Human Rights (1969) and the Charter of Fundamental Rights of the European Union (2000).350 Article 17 of the ECHR (Prohibition of abuse of rights) states as follows:

Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

Regarding Article 10, the ECtHR ruled, that ‘[f]reedom

of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the ECHR], it is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued’.351

Meanwhile, the EU legal framework has a different background and is linked with two main legal documents: the 2009 EU Charter of Fundamental Rights,352 and FD 2008 regulation, which are relevant to 27 member states.353 Between the years 1978 and 1996, Holocaust denial became crucial for democratic societies. The first Holocaust deniers were brought to justice in Canada, France, Germany and the United States,354 and the topic became highly debated across Europe in the 1990s and early 2000s.355 After 2008, research increased as more scholars addressed different aspects of the phenomenon, including Grimm,356 Atkins,357 Fraser,358 Karstedt359 and many more.360

With the help of academic work on Holocaust denial in Germany and beyond, we can trace how concerns

346 Equality and Human Rights Commission, “What Is the European Convention on Human Rights?” 19 April 2017, https://www. equalityhumanrights.com/en/what-european-convention-human-rights; Council of Europe, “The Russian Federation Is Excluded from the Council of Europe”, 16 March 2022, https:// www.coe.int/en/web/portal/-/the-russian-federation-is-excluded-from-the-council-of-europe; for not to mention also Baltic national regulation on hate speech in the new Criminal Codes after 2000 (see chapter I).

347 This provision is aimed at preventing persons from inferring from the Convention any right to engage in activities or perform acts aimed at the destruction of any of the rights and freedoms set forth in the Convention.

348 Restrictions deemed necessary in the interests of national security, public safety, the prevention of disorder or crime, the protection of health or morals and the protection of the rights and freedoms of others.

349 European Court of Human Rights, “Factsheet “Hate Speech””, January 2023, https://www.echr.coe.int/documents/fs_hate_speech_ eng.pdf.

350 European Court of Human Rights, “Guide on Article 17 of the European Convention on Human Rights: Prohibition of Abuse of Rights”, August 2022, https://www.echr.coe.int/Documents/ Guide_Art_17_ENG.pdf.

351 Handyside v. the United Kingdom judgment of 7 December 1976, § 49.

352 Article 11 of 2009 EU Charter of Fundamental Rights, https://fra. europa.eu/en/eu-charter/article/11-freedom-expression-and-information.

353 European Union, “Country Profiles”, https://european-union. europa.eu/principles-countries-history/country-profiles_en.

354 Robert A. Kahn, Holocaust Denial and the Law: A Comparative Study, Palgrave Macmillan, New York, 2004.

355 Vidal-Naquet, 1993; Osiel, 1997; Borneman, 1997; Martha Minow, Breaking the Cycles of Hatred: Memory, Law, and Repair, Martha Minow, Princeton University Press, Princeton, 2002; Laurel E. Fletcher and Harvey M. Weinstein, “Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation”, Human Rights Quarterly, 2002, vol. 24, no. 3, pp. 573–639; Noel Calhoun, Dilemmas of Justice in Eastern Europe’s Democratic Transitions, Palgrave Macmillan, New York, 2004.

356 Grimm, 2009.

357 Stephen E. Atkins, Holocaust Denial as an International Movement, Praeger, Westport, 2009.

with Holocaust denial led to the FD 2008 on xenophobic speech, which linked Holocaust denial to hate speech and anti-constitutional action as the part of the secondary EU regulation.361 Arguably, it was an unusual but necessary measure to combat the spread of radical right-wing political beliefs that endangered the liberal democratic order.362 While Article 1 of FD 2008 indicates the offences concerning racism and xenophobia, the yardstick of the compatibility with the core of human rights standards – freedom of expression – remains unclear:

Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable:

(a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, color, religion, descent or national or ethnic origin;

(b) the commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material,

(c) publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred

against such a group or a member of such a group; (d) publicly condoning, denying or grossly trivializing the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.363

Scholars criticise this regulation for generating a body of legally imposed knowledge that is shielded from public examination.364 Nevertheless, liberal democracies passed punitive memory laws, which are narrower and more precise than in non-liberal states. However, not all memory laws are lacking the proportionality justification: as Grazyna Baranowska and Anna Wójcik claim, there are cases in which memory laws protect free speech: prohibiting Holocaust denial, genocide and crimes against humanity; and thus protecting free expression by prohibiting the advocacy of violently repressive totalitarian ideas.365 In this context, Professor Sébastien Ledoux maintains that:

Legislative acts on Europe’s past adopted over the past thirty years can rightly be considered democratic progress as they take minorities and civilian victims in the context of wars, persecution, or oppression,

358 David Fraser, “Law’s Holocaust Denial”, in Genocide Denials and the Law, eds Ludovic Hennebel and Thomas Hochmann, Oxford University Press, Oxford, 2011.

359 Susanne Karstedt, Legal Institutions and Collective Memories, Hart Publishing, London, 2009.

360 Laurent Pech, “The Law of Holocaust Denial in Europe”, in Genocide Denials and the Law, eds Ludovic Hennebel and Thomas Hochmann, Oxford University Press, Oxford, 2011; Kenneth Lasson, “Defending Truth”, in Genocide Denials and the Law, eds Ludovic Hennebel and Thomas Hochmann, Oxford University Press, Oxford, 2011; Emanuela Fronza, “The Criminal Protection of Memory”, in Genocide Denials and the Law, eds Ludovic Hennebel and Thomas Hochmann, Oxford University Press, Oxford, 2011; Georges Mink and Laure Neumayer, History, Memory and Politics in Central and Eastern Europe Memory Games, Palgrave Macmillan UK, London, 2013; Stan and Nedelsky, 2013; Emanuela Fronza, “The Birth of the Crime of Historical Denialism”, in Memory and Punishment: Historical Denialism, Free Speech and the Limits of Criminal Law, Emanuela Fronza eds, T.M.C. Asser Press, The Hague, 2018, pp. 3–49; George Soroka and Félix Krawatzek, “Nationalism, Democracy, and Memory Laws”, Journal of Democracy, 2019, vol. 30, no. 2, pp. 157–171; Adam Czarnota, Justyna Jezierska and

Michał Stambulski, “Collective Memories, Institutions and Law”, Archiwum Filozofii Prawa i Filozofii Społecznej, 2020, pp. 6–21; Nekoliak, 2022.

361 Kahn, 2004; Joachim J. Savelsberg, Ryan D. King, “Institutionalizing Collective Memories of Hate: Law and Law Enforcement in Germany and the United States”, American Journal of Sociology, 2005, vol. 111, no. 2, pp. 579–616; Daniel Levy and Natan Sznaider, The Holocaust and Memory in the Global Age, Temple University, Philadelphia, 2005.

362 Erik Bleich, “The Rise of Hate Speech and Hate Crime Laws in Liberal Democracies”, Journal of Ethnic and Migration Studies, 2011, vol. 37, no. 6, pp. 917–934; Roger Smith, “Legislating against Genocide Denial: Criminalizing Denial or Preventing Free Speech?” University of St. Thomas Journal of Law & Public Policy, 2010, vol. 128, no. 4, pp. 128–137.

363 Council of the European Union, “Framework Decision 2008/913/ JHA on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law”, 28 November 2008, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32008F0913.

364 Bachmann, Lyubashenko, Garuka, Baranowska and Pavlakovi , 2020.

into account. But attention must also be paid to the effects of victimization, competition and the instrumentalization of history that these legislative provisions can produce.366

To comply with ECHR standards, any provision of law fulfilling the criteria of a memory law must pass the minimal test of legality, necessity and proportionality (see Table 5). Some additional criteria are listed in the CoE overview from 2018:

Member states should ensure that the restrictions to the freedom of expression entailed by such a legal framework are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria, also any limitation of, or interference with, freedom of expression must be subject to independent judicial control.367

The potential clash between Baltic memory regulations and freedom of speech falls under the Strasbourg case law.368 The analysis of relevant ECtHR case law indicates that some Baltic memory regulations could already be considered as unproblematic, while others remain unclear and could trigger legal debate in the future (see Table 6). As a rule, it is acceptable for laws to limit freedom of expression when people deliberately and consciously distort historical facts: expressions that are

‘gratuitously offensive or insulting, inciting disrespect or hate’ and those ‘casting doubt on clearly established historical facts’, as well as statements that ‘amount to the glorification of or to incitement to violence’, are not protected under Article 10 of the ECHR.369

When deciding whether such expression is ‘gratuitously offensive or harming others’, the ECtHR takes the historical and social context into consideration, including how the general public views them. For example, the ECtHR found that calling a person in Germany a ‘Nazi’ in a published book without any relevant link to the person’s actions is defamatory.370 But in the case Petkevi ˇ ci-ute · v. Lithuania (2018, Application no. 57676/11), the Court held that, in the context of Lithuanian history, both allegations of support for Nazi ideology and collaboration with Soviet security services, provided in a book entitled “The Ship of Idiots”, are clearly defamatory; not only of the deceased person, but also their living relatives. Although the Court found that there was interference with the applicant’s right to freedom of expression (Article 10 ECHR), this interference was in accordance with the law, as it pursued the legitimate aim to protect the reputation or rights of others. The Court found that the contents of the book concerned matters of public interest, including the disputed statements.

However, the ECtHR case law remain inconsistent. In Vajnai v. Hungary (2008, Application No. 33629/06),

Table 5. European Legal Framework of the Freedom of Speech

The object of memory legislation

Personal defamation

ECtHR case

Wabl v. Austria

Petkeviˇciu-t˙e v. Lithuania

Symbols of totalitarian regimes

Vajnai v. Hungary

Result

Calling ‘Nazi’ in Germany is defamatory

In Lithuania, allegations of support for Nazi ideology and collaboration with Soviet security services are clearly defamatory

In Hungary, public displaying of a Communist red star is not hate speech and prosecution for it by national jurisdiction was in breach of Article 10 ECHR

Preliminary evaluation within the Baltic context

Unproblematic

Kühnen v. Germany

Nix v. Germany

Genocide

Dink v. Turkey

Promoting Nazi organisation falls under Article 17

German criminal prohibition on use of Nazi symbols does not violate Article 17

In Turkey, promoting Armenian genocide recognition is not hate speech; prosecuting it violates Article 10

Petkeviˇciu-t˙e v. Switzerland

Swiss conviction for denying the Armenian genocide violated Article 10

Unclear. The question is: Would a ban on Russian war symbols in the Baltic states since 2022 fall under Article 10 or Article 17 of the ECHR?

Unclear. The question is how the ban on Communist symbols in Lithuania since 2008 falls into the scope of the ECHR.

Unclear. The question: How do Lithuanian and Latvian denial laws regarding the denial of Soviet crimes as genocide fall under the scope of relevant ECtHR case law?

365 Grazyna Baranowska Anna Wójcik, “In Defence of Europe’s Memory Laws”, Eurozine, 6 November 2017, https://www.eurozine. com/in-defence-of-europes-memory-laws/.

366 Sébastien Ledoux, “Memory Laws in Europe: What Common Horizons Are We Journeying Towards?” Magazine of the European Observatory of Memories, 2 April 2023, https://europeanmemories.net/magazine/memory-laws-in-europe-what-common-horizons-are-we-journeing-towards/.

367 Council of Europe, 2018.

368 For more, see Belavusau, 2015.

369 For more, see Anna Wójcik, “European Court of Human Rights, Freedom of Expression and Debating the Past and History”, Problemy Współczesnego Prawa Mi˛edzynarodowego, Europejskiego i Porównawczego, 2019, vol. 17, pp. 33–46.

Table 6. Baltic Memory Regulation in the Context of the Current ECtHR Case Law

the EctHR found that the conviction in Hungary of a left-wing politician for publicly displaying a red star violated Article 10 of the ECHR. It was ruled that in cases concerning the use of communist symbols, domestic courts must for each case consider all of the relevant circumstances to decide whether the public presentation of a symbol is a form of the outlawed promotion of an undemocratic political regime, and that the courts must be aware of how some symbols carry multiple meanings.371 The ECtHR held that there was a violation of art 10 of the ECHR when criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public.

In Dink v. Turkey (2010, Application Numbers 2668/07, 6102/08, 30079/08, 7072/09 et 7124/09), the applicant, Mr Dink, was a journalist (deceased) (of Armenian origin) who wrote about how Turkish recognition of the Armenian genocide means so much to Armenians. He was found guilty by Turkey of denigrating ‘Turkishness’. The ECtHR found that his writings did not constitute hate speech, and Article 10 was thus found to have been violated by Turkey as the fact that Fırat Dink had been found guilty of denigrating Turkish identity had infringed his freedom of expression and made him a target for nationalist extremists.372

In another case, Perincek v. Switzerland (2015, Application no. 27510/08), the applicant (Turkish politician) was convicted under Swiss law for denying the Armenian genocide. The ECtHR concluded that the Swiss prosecution for denying the Armenian genocide violated Article 10 of the ECHR, as the criminalisation

was unnecessary in a democratic country, since there was no ‘urgent social need’ to protect the legacy of the Armenian genocide (1915–1916).373 As noted by Uladzislau Belavusau, the problem with the Strasbourg judgement in Perinçek is not that the Court defends freedom of speech under Article 10 of the ECHR.374 Historical discussion should be exempted from instrumental state censorship in a democratic state, even if that implies protection of a ‘bunch of clowns outside’ and ‘negligible contribution to public discourse’. The problem is that ‘while acknowledging dignity of the Armenian community under Article 8 of the ECHR, the Court fails to express the necessary outrage about Perinçek’s statements. In this judgment, Perinçek is positioned almost as a partisan of free speech. In combination with an extremely questionable hierarchy between the Holocaust and other genocides, this failure to distance from Perinçek – albeit rightly protecting his freedom of expression – leaves strikingly little to sustain the dignity of the Armenian victims’.375

However, the denial of one historical event, the Holocaust, which re-shaped Europe and the modern consciousness, is never protected under Article 10 of the ECHR, even if it does not encourage violence or harm others (see Table 5).375 Since 2003, the ECtHR began categorically excluding the denial of the Holocaust from the protection of Article 10 of the ECHR in application of Article 17 of the ECHR (prohibition of abuse of rights),377 while at the current stage, the Court decides on a case-by-case basis whether Article 17 of the ECHR applies directly or indirectly.378 The Article 17 ‘guillotine

370 Case of Wabl v. Austria, 4 March 1998, no. 24773/94.

371 Case of Vajnai v. Hungary, 8 July 2008, no. 33629/06.

372 Case of Dink v. Turkey, 14 December 2010, no. 2668/07, 6102/08, 30079/08, 7072/09, 7124/09, https://hudoc.echr.coe. int/eng#{%22dmdocnumber%22:[%22873669%22],%22itemid%22:[%22001-100383%22]}.

373 Case of Perincek v. Switzerland, 10 October 2015, no. 27510/08.

374 Uladzislau Belavusau, “Perinçek v. Switzerland: Between Freedom of Speech and Collective Dignity”, Verfassungsblog, 5 November 2015, https://verfassungsblog.de/perincek-v-switzerland-between-freedom-of-speech-and-collective-dignity/.

375 Ibid.

376 European Court of Human Rights, “Guide on Article 17 of the European Court of Human Rights”, 31 August 2022, https://www. echr.coe.int/Documents/Guide_Art_17_ENG.pdf.

377 Case of Garaudy v. France, 24 June 2003, no. 65831/01. Case of M’Bala M’Bala v. France, 20 October 2015, no. 25239/13. This shift had already been announced in the case of Lehideux and Isorni v. France, 23 September 1998, no. 24662/94, para. 47.

Similarly, the case of Witzsch v. Germany (no. 2), 13 December 2005, no. 7485/03 (on the offence of disparaging the dignity of the deceased, see infra).

378 Case of Pastörs v. Germany, 3 October 2019, no. 55225/14, para. 37, opting for the indirect application in view of the fact that the statements were made in a parliamentary debate. Similarly, case of Williamson v. Germany, 8 January 2019, no. 64496/17, para. 20, also applying Article 17 indirectly.

379 Case of Lawless v. Ireland, 1 July 1961, no. 332/57, para. 7–8. ECtHR Judgment of 1 July 1961, Lawless v. Ireland, App. No. 332/57, para. 7. 8.

380 Case of Witzsch v. Germany (no. 2), 13 December 2005, no. 7485/03. Case of Williamson v. Germany, 8 January 2019, no. 64496/17. Case of Pastörs v. Germany, 3 October 2019, no. 55225/14. Witzsch v. Germany (2), App. no. 7485/03 (ECtHR, 13 December 2005); Williamson v. Germany, App. no. 64496/1 (ECtHR, 31 January 2019); Pastörs v. Germany, App. no. 55225/14 (ECtHR, 3 October 2019).

381 Case of Perinçek v. Switzerland, 15 October 2015, no. 27510/08,

effect’ emerged in 1961 in Lawless v. Ireland, where the ECtHR emphasised how the article is intended to make it impossible for individuals or groups ‘to derive from the Convention a right to engage in any activity or perform any act aimed at destroying any of the rights and freedoms set forth in the Convention’.379

Until now, the ECtHR has consistently ruled that criminal convictions under Holocaust denial bans in Germany conform to the ECHR.380 Thus, the negation of the Holocaust has invariably been presumed by the ECtHR to incite to hatred or intolerance. In particular, the justification for making its denial a criminal offence lies not so much in that it is a clearly established historical fact but in that, in view of the historical context in the States concerned, its denial, even if dressed up as impartial historical research, must be seen as connoting an antidemocratic ideology and anti-Semitism.381 In academic scholarship, this regime based on the so-called ‘abuse clause’ faced criticism, as the use of contentbased restrictions in conjunction with the invocation of the abuse clause has the potential to transfer the burden of proof from the state to the party subject to the restriction. This results in a loss of proportionality and eliminates the requirement that the state demonstrate an urgent social need.382

The ECtHR has yet to extend this reasoning to the denial of historic crimes other than the Holocaust. The evaluation of Soviet crimes in former occupied states is especially relevant in this context. As noted by Aleksandra Gliszczy´nska-Grabias:

Accession of all post-communist states (with the ex-

ception 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. 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.383

The Individual Lawsuits

Regarding Soviet Crimes at ECtHR

The punitive laws addressing the Soviet crimes during the occupation (1990–2000s) were debated to some extent in the ECtHR cases related to the appeals of those persons convicted under national jurisdictions as perpetrators of Soviet crimes. The data suggests that several dozen suspected perpetrators of Soviet crimes were convicted in the Baltic states since 1990 (see Table 7 below).384 There have been twelve criminal cases in Espara. 234; 243.

382 Çaˇgatay Yildirim, “Memory Laws & Freedom of Speech in Europe: Analysis of Perinçek v. Switzerland Case”, Review of Armenian Studies, 2014, vol. 30, https://dergipark.org.tr/en/download/article-file/777556.

383 Aleksandra Gliszczy´nska-Grabias, “Communism Equals or Versus Nazism?” East European Politics and Societies, 2016, vol. 30, no. 1, pp. 74–96.

384 Antonio Cassese, “Balancing the Prosecution of Crimes Against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v. Estonia Case Before The ECHR”, Journal of International Criminal Justice, 2006, vol. 4, no. 2, pp. 410–418; Mart Susi “Recent Judgments and Decisions of the European Court of Human Rights towards Estonia”, Juridica International, 2006, vol. 11; Giulia Pinzauti, “The European Court of Human Rights’ Incidental Application of International Criminal Law and Humanitarian Law: A Critical Discussion of Kononov v. Latvia”, Journal of International Criminal Justice, 2008, vol. 6, no. 5, pp. 1043–1060; Justinas Žilinskas, “Broadening the Concept of Genocide in Lithuania’s Criminal

Law and the Principle of nullum crimen sine lege”, Jurisprudencija, 2009, vol. 118, no. 4, pp. 333–348; Justinas Žilinskas, “The Kononov Case and the Baltic States”, Jurisprudencija, 2011, vol. 18, no. 3, pp. 859–870; Volzhskaya, “Kononov v. Latvia: A Partisan and a Criminal – the European Court of Human Rights Takes a Controversial Stance on War Crimes”, Tulane Journal of International and Comparative Law, 2011, vol. 19, no. 2; Lauri Mälksoo “Kononov v. Latvia – European Court of Human Rights Grand Chamber Judgment on Retroactive Application of Laws of War to Prosecutions of Offenses During World War II”, The American Journal of International Law, 2011, vol. 105, no. 1, pp. 101–108; Aleksandra Gliszczy´nska-Grabias and Grazyna Baranowska, “The European Court of Human Rights on Nazi and Soviet Past in Central and Eastern Europe”, Polish Political Science, 2016, vol. 45, no. 1, pp. 117–129; Minervini, 2020; Berster, 2021; K-uris, n.d.; Sagatiene, 2020; Dovile Sagatiene, “Deconstruction of Soviet Deportations in Lithuania in the Context of the Genocide Convention”, International Criminal Law Review, vol. 21, no. 3, pp. 588–608, https://doi. org/10.1163/15718123-bja10057.

tonia prosecuting Soviet deportations under the crimes against humanity clause (1995 Criminal Code of the Republic of Estonia, Article 61(1).385 In those cases, eleven persons were convicted (eight in connection with the March deportation of 1949: J. Klaassepp, V. Beskov, M. Neverovski, V. Loginov, J. Karpov, A. Kolk, V. Kask and P. Kislyi (Kislõi)).386 Three persons have also been convicted of murdering members of the Estonian national armed resistance (‘forest brothers’) in 1940–1950 (K.L. Paulov, V. Penart and R. Tuvi).

Some of the convicted persons in Estonia lodged appeals to the ECtHR. In Kolk and Kislõi v. Estonia (2006, Application no. 23052/04, Application no. 24018/04), the applicants, who had been convicted for the deportation of 1949, emphasised that pursuant to the principles of criminal law, a person is not punishable for an act that was not a crime pursuant to the law in force at the time of its commission.393 Conversely, the ECtHR confirmed in its decisions that the murder and deportation of civilians were recognised as crimes against humanity already under Article 6c of the Charter of the Nuremberg Tribunal of 1945. In the second relevant case, Penart v. Estonia (2006, Application nos. 14685/04), the applicant also complained that the acts he had committed in 1953 and 1954 (planned and directed the killing of a person hiding in the woods from the repressions of the occupation authorities) had not been crimes against humanity under international law as it stood at that time.394 In both decisions, the ECtHR essentially equated the crimes of Communism and Nazism, corroborating that the same international principles and legal sources were applicable for both. The Court concluded that

385 Criminal Code of the Republic of Estonia of 7 May 1992, https:// www.riigiteataja.ee/akt/184289. Its Article 611 stated that “For crimes against humanity, including genocide, as per definition of these crimes in international law, that is for deliberate acts whose aim it is to fully or partially eradicate a group, based on national, ethnic, racial or religious distinction, which is resisting an occupation regime, or any other social group; for the killing of a member of such a group or for causing him/her grave or very grave bodily injuries or mental dysfunction or for torturing him/her; for removal of his/her children by force; for deportation of the indigenous population or for banishment into exile once an armed invasion, occupation or annexation has occurred, and for depriving them of their economic, political and social human rights or for restriction of these rights – the penalty is deprivation of liberty for between 8–15 years or the death penalty”.

386 European Commission Directorate-General for Justice and Consumers, “Honouring Civil Courage: Developing Suggestions to Improve the Situation of Victims of Communist State Crimes”, p.

Criminal

1992 Law on the Liability for Genocide Against the People of Lithuania

1998 Criminal Code

Articles 49 and 71

2003 Criminal Code

Article 99

1990 Criminal Code

Articles 68, 70388

1995 Criminal Code

Article 61 (1) on Crimes against humanity

2002 Criminal Code

Article 89 on Crimes against humanity

Article 90 on Genocide

1993 ‘On the amendments Latvian Criminal Code and Latvian Code of Criminal Procedure’391

31, https://www.stiftung-hsh.de/assets/Dokumente-pdf-Dateien/ EU-Projekt-Laenderstudien.pdf.

387 Another source suggests that in 1999, 66 criminal cases on genocide committed on the territory of Lithuania have been instituted at the General Prosecutor’s Office for both Nazi and Communist genocide. However, only four of the cases have been brought before the court (two cases on genocide committed […] against Lithuanians during the Soviet occupation); see further Rimvydas Valentukeviˇcius “Nusikaltim˛u žmoniškumui tyrimo Lietuvoje problemos”, 30 January 2004.

388 Soviet CC punished anti-Soviet agitation and propaganda. It penalised, inter alia, especially serious crimes against the Soviet State and the propagation of anti-Soviet, defamatory fiction. By a legislative amendment of 4 October 1990, which came into force on 10 November 1990, Article 68 of the CC was rephrased, specifying the criminalisation of acts directed against the sovereignty of the Republic of Lithuania. Paragraph 3 of that Article punished such acts, if committed at the request of a foreign

Country

Table 7. Lawsuits regarding Soviet Crimes

Criminal cases

Until 2017, 155 investigations for the crime of genocide against Lithuanian partisans

Until 2017, 3 criminal cases against perpetrators of Soviet deportations under Article 99387

Results

10 persons convicted

4 sentenced to probation due to poor health 5 suspects died during the investigation 25 died during the trial

Appeal to ECtHR

Vasiliauskas v. Lithuania (2015)

Dr˙elingas v. Lithuania (2019)

2 of these trials were terminated due to the death of the accused. The third (convicted) person was sentenced to probation due to poor health

3

12 criminal cases

10 prosecuted

11 persons convicted For deportations: Klaassepp, Beskov, Neverovski, Loginov, Karpov, Kolk, Kask, Kislyi (Kislõi)

3 convicted for killing partisans: Paulov, Penart, Tuvi

1 convicted of war crimes: Kononov392

5 convicted for genocide and crimes against humanity: Noviks, Farbtuhs, Tess, Savenko, Larionov

State or organisation, with up to 10 years’ imprisonment. Article 70 of the CC prohibited the creation of and active participation in anti-Soviet organisations with a view to preparing or committing especially serious crimes against the State. Following the legislative amendment of 10 November 1990, Article 70 of the CC was rephrased to prohibit participation in acts aimed at disturbing the public or social order established by the Provisional Basic Law (the Constitution), to limit the sovereign powers of the Lithuanian State or to separate any part of its territory by force.

389 For more, see the Estonian case-law database https://www.riigiteataja.ee/en/search.

390 Anonymised Latvian court decisions are available at: https://manas.tiesas.lv/eTiesasMvc/nolemumi. However, this database only contains rulings made after 2013, hence, no ruling on genocide, crimes against humanity and war crimes is available in the database. Other judgments and criminal cases should be available in the archives of the relevant court.

391 On the amendments Latvian Criminal Code and Latvian Code of

Kuolelis, Bartoševiˇcius and Burokeviˇcius v. Lithuania (2008)

Kolk and Kislõi v. Estonia (2004)

Penart v. Estonia (2006)

Kononov v. Latvia (2010)

Larionovs v. Latvia and Tess v. Latvia (2014)

Criminal Procedure of 6 April 1993, https://likumi.lv/ta/id/60472.

392 See the Latvian Supreme Court website: https://www.at.gov.lv/lv/tiesu-prakse/judikaturas-nolemumu-arhivs/kriminallietu-departaments/ klasifikators-pec-lietu-kategorijam/kriminallikuma-seviska-dala/ ix-nodala-noziegumi-pret-cilveci-mieru-kara-noziegumi-genocids. Only one decision in a case regarding war crimes (Kononov case), Supreme Court of the Republic of Latvia Senate Judgement of September 28, 2009 in the case SKK-408/2004 (Case no. 86000198), https://www.at.gov.lv/downloadlawfile/4254.

393 Case of Kolk and Kislyiy v. Estonia, 17 January 2006, no. 23052/04; 24018/04, https://hudoc.echr.coe.int/app/conversion/docx/?library=ECHR&id=001-72404&filename=KOLK%20 AND%20KISLYIY%20v.%20ESTONIA.docx&logEvent=False.

394 Case of Penart v. Estonia, 29 March 2004, no. 14685/04, http:// www.melaproject.org/sites/default/files/2019-01/ECtHR%2C%20 Penart%20v.%20Estonia%20%28Appl.%20No.%20 14685%3A04%29%2C%20Decision%2C%2024%20January%202006.pdf.

even if the acts committed by V. Penart, A. Kolk and P. Kislõi were regarded as ‘lawful’ pursuant to Soviet law, they were nevertheless crimes against humanity pursuant to international law.395

In Latvia, ten persons were indicted for their participation in repression and other Soviet crimes.396 Six people were convicted of genocide and crimes against humanity (Alfons Noviks, Mikhail Farbtuhs, Nikolai Tess, Evgeny Savenko and Nikolai Larionov) and one for war crimes (Vasily Kononov).397 Some of those national cases reached the ECtHR. In Kononov v. Latvia (2008), Vasily Kononov, a former Soviet partisan, was charged with war crimes committed during World War II, including the murder of Latvian civilians in 1944.398 In a judgment of 24 July 2008, the Court held (four votes to three) that Article 7 had been violated and, under Article 41 (just satisfaction), awarded the applicant €30,000 in respect of non-pecuniary damage. The Court held that Latvian authorities had not properly investigated allegations of misconduct by the case’s prosecutors and judges and that they had failed to take Kononov’s status as a former partisan into account when assessing his actions during the war.

In 2010, however, the Grand Chamber of the ECtHR ruled that Vasiliy Kononov’s conviction by Latvia of war crimes during World War II did not violate Article 7 (no punishment without law) of the European Convention on Human Rights.399 The Court ruled that the prosecution and conviction of Mr Kononov in the Latvian courts, based on the international law in force at the time of the acts he stood accused of, could not be considered

unforeseeable, as at the time they were committed, the applicant’s acts had constituted offences defined with sufficient accessibility and foreseeability by the laws and customs of war. According to Žilinskas, ‘Kononov’s case was a crucial milestone in the Baltic states’ campaign to expose Soviet regime atrocities and challenge Russia’s denial’.400 Indeed, this case indeed triggered intense political debate, which cannot be covered in this report due to space and scope limit.401

In the second judgment in the cases of Larionovs v. Latvia 2014 (Application no. 45520/04) and Tess v. Latvia 2014 (Application no. 19363/05), the ECtHR has unanimously declared the applications inadmissible.402 The applicants complained that the criminal law had been retroactively applied in the proceedings against them in connection with their actions during the mass deportation of Latvian inhabitants to remote parts of the USSR in March 1949. In particular, the Court found that Mr Larionovs and Mr Tess, the applicants, had failed to lodge a constitutional complaint that, if successful, could have led to the reopening of the criminal proceedings and the redress of the violation of Article 7 (no punishment without law) that they alleged. The Court consequently rejected their complaint for the non-exhaustion of domestic remedies.403

In Lithuania, one group of criminal cases concerned the investigation of the crime of genocide against Lithuanian partisans and another the conviction of the perpetrators of Soviet deportations of civilians under Article 99 of the 2003 CC. According to official data de-

395 European Commission Directorate-General for Justice and Consumers, “Honouring Civil Courage: Developing Suggestions to Improve the Situation of Victims of Communist State Crimes”, https://www.stiftung-hsh.de/assets/Dokumente-pdf-Dateien/ EU-Projekt-Laenderstudien.pdf.

396 Viesturs Spr-ude, “The State Must Pay 3000 EUR to an KGB Agent”, LA.lv, 7 January 2017, https://www.la.lv/latvija-izmaksas-ekscekistam-3000-eiro; Jud-iteCunka, “Many of the Perpetrators of the 1941 Deportations Have One Unpunished”, LSM.lv, 14 June 2021, https://www.lsm.lv/raksts/zinas/latvija/liela-dala-vainigo-1941gada-deportacijas-palikusi-nesoditi.a408636/.

397 J-anis B-erzi˛nš, “Silence Is Not a Peace Guarantee”, EPALE Blog, 24 February 2023, https://epale.ec.europa.eu/lv/blog/klusesana-nav-miera-garantija.

398 Case of Kononov v. Latvia, 24 July 2008, no. 36376/04, https:// hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-87934%22]}.

399 Case of Kononov v. Latvia, 17 May 2010, no. 36376/04. https:// hudoc.echr.coe.int/eng#{%22fulltext%22:[%22of%20Kononov%20v.%20Latvia%22],%22itemid%22:[%22001-98669%22]}

400 Justinas Žilinskas, “Kononov Case and the Baltic States”, Jurisprdencija, 2011, vol. 18, no. 3, https://repository.mruni.eu/bitstream/ handle/007/11330/580-1026-1-SM.pdf?sequence=1&isAllowed=y. 401 For more, see Lauri Mälksoo, “Kononov v. Latvia”, The American Journal of International Law, 2011, vol. 105, no. 1, pp. 101108, https://doi.org/10.5305/amerjintelaw.105.1.0101; Maria Mälksoo, “Kononov v. Latvia as an Ontological Security Struggle over Remembering the Second World War”, in Law and Memory: Towards Legal Governance of History, eds Uladzislau Belavusau and Aleksandra Gliszczy´nska-Grabias, Cambridge University Press, London, 2017, pp. 91–108; Lauri Mälksoo, “International Law and the 2020 Amendments to the Russian Constitution”, American Journal of International Law, 2021, vol. 115, no. 1, pp. 78–93, doi:10.1017/ajil.2020.87.

402 European Court of Human Rights, “Cases Concerning Retroactive Application of Criminal Law in Connection with 1949 Mass Deportation Inadmissible for Failure to Exhaust Domestic Remedies”, Press Release, 18 December 2014, https://www.google. com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwiYt-aIlYH-AhV0i_0HHfGxCckQFnoECBAQAQ&url=https%3A%2F%2Fhudoc.echr.coe.int%2Fapp%2Fconversion%2F-

livered by the Lithuanian Prosecution Office in October 2019, between 1987 and 2017, 155 investigations of the crime of genocide against Lithuanian partisans were carried out, ten persons were convicted, and four were sentenced to probation due to poor health. In addition, five suspects died during the course of the investigation, and twenty-five more during the course of the trial.404 According to the official data delivered by the Lithuanian Ministry of Justice during the period 1990–2017, three criminal cases were held before Lithuanian courts regarding the conviction of the perpetrators of Soviet deportations under Article 99(2); two of these trials were terminated due to the death of the accused, and a third convicted person was sentenced to probation due to his poor health condition.405

Lithuanian cases from the first group were debated at ECtHR: in Vasiliauskas v. Lithuania (2015), the question before the ECtHR was whether the conviction of the applicant, a former Soviet official, for genocide in 2005 by domestic courts was reasonably foreseeable in light of international law as it stood in 1953, when the crime was committed.406 The Grand Chamber of the ECtHR produced a split decision, ruling nine votes to eight that the conviction for genocide of political and social groups according to Lithuanian post-Soviet legislation was not foreseeable and that it was in violation of ECHR Article 7, which states that one cannot be held criminally accountable for something that was not a crime at the time it occurred. In the Drelingas case, the question was once again whether the applicant could

pdf%2F%3Flibrary%3DECHR%26id%3D003-4968739-60893 55%26filename%3D003-4968739-6089355.pdf&usg=AOvVaw1qQRDwB1D759Axy4xF7nKL.

403 For more on Article 7 of the ECHR, see “Digest of European Court for Human Rights Jurisprudence on Core International Crimes”, Eurojust, September 2017, https://www.eurojust.europa.eu/sites/ default/files/assets/2017-09-digest-of-european-court-for-human-rights-jurisprudence-on-core-international-crimes-en.pdf.

404 For more, see Sagatiene, 2020.

405 For more, see Ibid For more, see Sagatiene, 2021. From 2003 until 2020, however, there were at least 48 criminal cases under Article 102 of Lithuanian Criminal Code, which states the criminal liability for the deportations of civilians during occupations. This national regulation was adopted to increase the chances of convicting the perpetrators of deportations as in the scope of Article 99 the genocidal intent, targeted groups, and other elements of genocide crime were too complicated to prove from the perspective of criminal law. Still, only three cases evoked under Article 102 resulted in indictments, whereas four persons were convicted, while other criminal cases

have sufficiently foreseen that he was involved in committing genocide in 1956.407 In March 2019, the ECtHR promulgated a decision that approved the judgment of the Lithuanian courts whereby partisans were recognised as a significant part of the Lithuanian nation. The ECtHR agreed that their systematic killing was genocide of the Lithuanian nation in part. For the first time, an international judicial institution had recognised genocide by the Soviet regime in Lithuania. Ultimately, cases regarding Soviet genocide against Lithuanians at the ECtHR have created more options for other victims of Soviet crimes to strive for genocide recognition at both the national and international levels.408

Besides the two Soviet crimes cases, there is a 1990 Lithuanian sovereignty-linked transition case. In August 1999, Kuolelis, Bartoševiˇcius and Burokeviˇcius were convicted of subversive, anti-state acts as senior leaders of the Lithuanian chapter of the Communist Party of the Soviet Union.409 The ‘January 13th case’ refers to a 1991 Soviet army–Lithuanian civilian incident killing thirteen and injuring more than 1000. The applicants allege that they were prosecuted and convicted for offenses that could not be imagined under domestic or international law because Lithuania was not yet an independent state. They also criticised the lengthy proceedings against them. The ECtHR determined that Article 6 had been violated in the cases of Kuolelis and Bartosevicius, but not in that of Burokevicius. The court determined that the petitioners’ right to a fair trial had been breached, because one of the judges who had presided over their trials lacked im-

were suspended (4) or terminated (4) and the rest remain pending (37) since 2019.

406 European Court of Human Rights, “Conviction of an Officer in the State Security Services for Genocide Was Not Justified”, Press release, 20 October 2015, https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-5204869-6446796&filename=Grand%20Chamber%20Judgment%20Vasiliauskas%20v.%20Lithuania%20-%20conviction%20of%20an%20officer%20in%20 the%20State%20security%20services%20for%20genocide%20 was%20not%20justified.pdf.

407 Case of Drelingas v. Lithuania, 12 March 2019, no. 28859/16, https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-191702%22]}.

408 For more, see Dovile Sagatiene, “The Transformation of Lithuanian Memories of Soviet Crimes to Genocide Recognition”, International Journal of Transitional Justice, 2022, vol. 16, no. 3, pp. 396–405, https://academic.oup.com/ijtj/article/16/3/396/6776207.

409 Case of Kuolelis, Bartosevicius and Burokevicius v. Lithuania, 19 February 2008, no. 74357/01, 26764/02, 27434/02, https://hudoc. echr.coe.int/fre#{%22itemid%22:[%22001-72127%22]}

partiality. The court did not establish a violation of Article 13, however, as it determined that the Lithuanian judicial system offered appropriate channels for questioning the fairness of the trial.

Implementation of FD 2008 in the Baltic States a) Infringement Proceedings against Estonia and Lithuania

As reported in the 2022 monitoring report of FD 2008, infringement proceedings against Estonia initiated in 2020 remained open in 2021.410 Estonia has failed to transpose the criminalisation of the specific forms of hate speech; namely, the public condoning, denying or gross trivialisation of international crimes and the Holocaust, when such conduct aims at inciting violence or hatred.411 Additionally, Estonia has omitted the criminalisation of public incitement to violence or hatred when directed at certain groups, and it has not provided for adequate penalties. Finally, the Estonian criminal code does not ensure that the racist and xenophobic motivation of crimes are considered as aggravating circumstances so that such crimes are effectively and adequately prosecuted.412 Estonia had two months to reply to the points raised by the EC before the EC potentially had to decide to send a reasoned opinion.413

410 European Union Agency for Fundamental Rights, “Antisemitism: Overview of Antisemitic Incidents Recorded in the European Union 2011–2021”, https://fra.europa.eu/sites/default/files/fra_uploads/ fra-2022-antisemitism-overview-2011-2021_en.pdf.

411 “European Commission Launches Infringement Proceedings against Estonia”, ERR News, 30 October 2020, https://news.err. ee/1153405/european-commission-launches-infringement-proceedings-against-estonia.

412 European Commission, “October Infringements Package: Key Decisions”, 30 October 2020, https://ec.europa.eu/commission/ presscorner/detail/en/inf_20_1687.

413 European Union Agency for Fundamental Rights, “Franet National Contribution to the Fundamental Rights Report 2021: Estonia”, https://fra.europa.eu/sites/default/files/fra_uploads/frr2021_estonia-frr2021_en.pdf.

414 European Commission, “January Infringements Package: Key Decisions”, 26 January 2023, https://ec.europa.eu/commission/ presscorner/detail/en/inf_23_142.

415 “Prosecutor General: I Oppose the Criminalization of Hate Speech”, ERR News, 17 February 2021, https://news.err. ee/1608112696/prosecutor-general-i-oppose-the-criminalization-of-hate-speech.

416 “European Commission Opens 5 Infringement Procedures against Estonia”, ERR News, 26 January 2023, https://news.err. ee/1608864740/european-commission-opens-5-infringement-procedures-against-estonia.

417 “Prosecutor General: I Oppose the Criminalization of Hate Speech”, ERR News, 17 February 2021, https://news.err.

Estonia responded with new information relating to the concerns raised by the EC. Having analysed this additional information, the EC found further transposition issues – in addition to the concerns already raised in the letters of formal notice – that needed to be specifically addressed.414 This issue remained unsolved during the pandemic in 2021,415 and in January 2023, the EC opened five infringement procedures against Estonia, awaiting action on improving, including the restricting of hate speech.416 Consensus would appear to have been reached in Estonia,417 as needed amendments were introduced in June 2023.418

Similarly, in 2021, the EC notified the Lithuanian Ministry of Justice of infringement procedures for failing to transpose and implement FD 2008 on combatting racism and xenophobia through criminal law.419 Lithuanian regulations violated Article 1(c) and (d) and Article 2(1) of the FD 2008 for two reasons. First, Article 17(2) of the CC limits criminal responsibility compared to the FD 2008. Criminal liability for permission, rejection, or excessive denigration under Article 170(2) of the CC applies only if public order was interrupted (not if it may have been). Second, Article 170(2) of the CC limits criminal culpability for offenses committed on Lithuanian territory or against Lithuanian residents, while the

ee/1608112696/prosecutor-general-i-oppose-the-criminalization-of-hate-speech.

418 Act amending the Penal Code, the Code of Criminal Procedure and the Code of Misdemeanour Procedure (incitement to hatred and hate crimes) 232 SE, initiated on 12 June 2023, https://www. riigikogu.ee/tegevus/eelnoud/eelnou/da6b6990-df0b-460daa87-447d656e184f/karistusseadustiku-kriminaalmenetluse-seadustiku-ja-vaarteomenetluse-seadustiku-muutmise-seadus-vaenu-ohutamine-ja-vaenumotiiviga-kuriteod. The actual text of the amendment to the Penal Code is the following: 1) section 58 is supplemented by item 14 in the following wording: ‘14) committing an offense against a person due to his nationality, race, skin color, gender, disability, language, origin, religion, sexual orientation, political beliefs, or property or social status’; /proposal to add an additional aggravating circumstance – perpetration of a crime out of discriminatory motives/. 2) the text of section 151 is amended and worded as follows: ‘(1) For public incitement to hatred, violence or discrimination against a group of persons or a member of a group on the basis of nationality, race, color, sex, disability, language, origin, religion, sexual orientation, political beliefs or property or social status in a manner that gives reason to fear an act of violence following the incitement or a significant threat to the safety of society, – shall be punished with a monetary penalty or imprisonment of up to one year. (2) For the same act, if it is committed: 1) repeatedly, or 2) by the group – shall be punished with a monetary penalty or imprisonment for up to three years. (3) For the act provided for in subsection 1 or 2 of this section, if it has been committed by a legal entity, – shall be punished

FD 2008 does not.420 In April 2022, the amended version of CC 170(2) was adopted to be fully in line with FD 2008.421

b) Balancing Denial Laws in Latvia and Lithuania

As the laws criminalising denial are quite new in the Baltics, there are only a few domestic cases in Lithuania and Latvia, none of which have reached the ECtHR at the time of writing. The main dilemma addressed by the Baltic denial laws is that denying the criminal foundations of the Soviet regime in the Baltic states undermines the legal continuity of these states and questions their legitimacy. During the debate on the FD 2008, the Baltic countries lobbied for the FD to condemn Sovietera crimes; however, the CoE added only a declaration condemning all totalitarian atrocities to satisfy member states that wanted the FD 2008 to cover Stalinist crimes.422 As Žilinskas argues, it evolved ‘into the movement for ‘equal legal treatment’423 of the crimes of totalitarian regimes that culminated in the Prague Declaration of 2008 ‘On European Conscience and Communism’, where the signatories – famous European politicians and activists – called for a just recognition of the criminal communist legacy in Europe’.424

Meanwhile, both the Latvian and Lithuanian crimi-

with a financial penalty’. So far, the first paragraph of Art 151 is a misdemeanour, it is proposed to be changed into a crime; the standard of criminalized acts is broadened to encompass such hate speech that either causes a threat of violent act to take place or that significantly endangers the public security – the latter is explained in the explanatory note to fulfil the clause of threat to the ordre publique

419 European Commission, “Commission Calls on Greece, the Netherlands and Lithuania to Fully Transpose EU Law Criminalising Hate Speech and Hate Crimes”, 9 June 2021, https://ec.europa.eu/ newsroom/just/items/713873/en.

420 “Explanatory Note on The Draft Law Amending Articles 60, 129, 135, 138, 169, 170, 170(1) and 170(2) of The Criminal Code of the Republic of Lithuania”, https://e-seimasx.lrs.lt/portal/legalAct/lt/ TAP/d6b9afd21c4411ecad9fbbf5f006237b?jfwid=-gucsndw5w.

421 ‘1. The person who publicly supports the legal acts of the Republic of Lithuania or the European Union or the recognized decisions of the Republic of Lithuania or international courts on the recognition of genocide or other crimes against humanity or war crimes, denied them or grossly belittled them, if this was done in a threatening, insulting or offensive way or because of that public order was disturbed or could be disturbed, as well as those who publicly supported the aggression committed by the USSR or Nazi Germany against the Republic of Lithuania, genocide or other crimes against humanity or crimes committed by the USSR or Nazi Germany, or other aggression against Lithuania committed during the 1990–1991 war very serious or serious crimes against the Republic of Lithuania or very serious crimes against the residents

nalisation of denial is addressing this threat, as these countries criminalised not only the denial of the Holocaust, but also the denial of Soviet crimes. As argued by Grazyna Baranowska and Aleksandra Gliszczy skaGrabias, the problem is not that they view fascism and communism as two equally criminal regimes, which is understandable given the historical experience of these countries, but that they blame others (Nazi Germany and the USSR) for historical injustices, victimise the past for nation-states’ sake, and use history for nationalist mobilisation. The EU promoted memory rules in western Europe to achieve the opposite. In this way, certain memory laws, while officially serving as a guarantee for accessing historical truth, led to its deformation. Consequently, an ‘alternative’ truth, based on the will of the legislators, is being imposed.425

Another problem is that Latvian and Lithuanian criminalisations of denial are of a broad scope – and did not define the circumstances under which denialism would become a penal offense. This may lead to legal ambiguities and a lack of serious enforcement of the law. According to Žilinskas, the first cases on Lithuanian regulation (Stankeras and Paleckis cases426) showed, that it is very easy for the defendant to avoid responsibility for a crime of denial (in contrast to the simple

of the Republic of Lithuania by persons who carried out or participated in the Republic, denied or grossly belittled them, if this was done in a threatening, insulting or insulting way or because public order was disturbed or could have been disturbed, shall be punished by a fine or restriction of liberty, or arrest, or imprisonment for up to two years. 2. A legal person is also responsible for the acts provided for in this article’; see the Comparative Version of the Draft Law Amending the Criminal Code Articles 60, 129, 135, 138, 169, 170, 170(1) and 170(2) of the Republic of Lithuania, https://e-seimasx.lrs.lt/portal/legalAct/lt/TAK/14878f60bb5711ec9f0095b4d96fd400?jfwid=-gucsndw5w.

422 Laurent Pech, “The Law of Holocaust Denial in Europe”, in Genocide Denials and the Law, eds Ludovic Hennebel and Thomas Hochmann, Oxford University Press, Oxford, 2011, https://doi. org/10.1093/acprof:oso/9780199738922.003.0007.

423 Justinas Žilinskas, “Introduction of ‘Crime of Denial’ in the Lithuanian Criminal Law and First Instances of Its Application”, Jurisprudencija, 2012, vol. 19, no. 1, pp. 319.

424 Prague Declaration on European Conscience and Communism, http://www.victimsofcommunism.org/media/article.php?article=3849.

425 Grazyna Baranowska and Aleksandra Gliszczy´nska-Grabias, “Right to Truth” and Memory Laws: General Rules and Practical Implications”, Polish Political Science Yearbook, 2018, vol. 47, no. 1, https://czasopisma.marszalek.com.pl/images/pliki/ppsy/47-1/ ppsy2018107.pdf.

426 Petras Stankeras was a Lithuanian historian who was accused of denying the Holocaust and promoting anti-Semitic views. In 2011,

hate speech crimes, where one sentence, such as an internet comment is sufficient for criminal sanction) by shielding himself under ‘opinion’ or retracting his words, because both the prosecution and the court set the level of proof of intent as very high and contextual.427

As some scholars argue, in practice, the Lithuanian memory law also does not protect minorities and instead validates the views of the majority population, protecting it against certain historical reinterpretations.428

There were a few more relevant cases in Lithuania leading up to 2023: in 2016, the national court acquitted Raimondas Pankeviˇcius of the charge that, at the meeting of the Panevežys City Council, he publicly denied the Holocaust in a speech.429 In 2019, a Lithuanian publisher, Povilas Masiulionis, was found guilty of producing a book that contradicted the official historical account of the events of 13 January 1991.430 Furthermore, politician Viaˇceslav Titov was convicted for his statements about Lithuanian partisan leader Adolfas Ramanauskas-Vanagas.431 None of these convictions would appear to be appealed further. In 2018, however, the Lithuanian Supreme Court reversed the conviction for denying Soviet crimes by Jurijus Subotinas (commenting on social media about the Soviet past), as the

Court found that:

Article 170(2) of the Criminal Code does not apply because the content of the comment under review is insufficiently detailed and informative to warrant criminal liability. Notably, in establishing criminal liability for acts that may be construed as one form or another of abuse of the right to freedom of expression, it is necessary not only to consider the practice of the ECHR in interpreting Article 10 of the Convention, but also to adhere to the standards for establishing personal guilt applied in criminal justice: to establish both objective and subjective elements of the criminal offense, to adhere to the presumption of innocence, and to establish both objective and subjective elements of the criminal offense.432

The Latvian regulation on denial was recently analysed by Eva-Clarita Pettai, indicating that a number of cases involving article 74(1) have been investigated so far, yet they all ended at the pre-trial stage, which makes it difficult to draw conclusions about the article’s ultimate legal interpretation or its effects on free speech and open historical debate … the law primarily serves as a weapon in an ongoing, mostly domestic and inter-ethnic ‘memory war’ over the interpretation of the Soviet regime.433

he was charged with violating Lithuania’s laws against incitement to hatred and Holocaust denial, but the charges were dismissed later; see “Investigation into Peter Stanker Is Closed after Finding No Evidence of a Crime”, 15min, 3 March 2011, https://www.15min. lt/naujiena/aktualu/istorija/ikiteisminis-tyrimas-del-petro-stankero-nutrauktas-neradus-nusikaltimo-pozymiu-582-140277. The Supreme Court of Lithuania concluded that Algirdas Paleckis was correctly convicted in a case involving the denial of the events of January 13. The case involved incidents that occurred on 13 January 1991, during the Soviet military's crackdown on the Lithuanian independence movement. Paleckis was initially sentenced to 10 months in prison for allegedly publicly denying the offenses committed during that time period; see the Supreme Court of Lithuania Judgement of 22 January 2013, in the case No. 2K-7102/2013, Trial No. 1-10-9-00171-2010-3, https://liteko.teismai. lt/viesasprendimupaieska/tekstas.aspx?id=c643619e-7448-4fea8c28-9ca465d296c0.

427 Justinas Žilinskas, “Introduction of ‘Crime of Denial’ in the Lithuanian Criminal Law and First Instances of Its Application”, Jurisprudencija, 2012, vol. 19, no. 1, p. 319.

428 Grazyna Baranowska, Leon Castellanos-Jankiewicz and Agnieszka Chidlow, “The Impact of Language on Multinational Enterprises’ Knowledge Transfer: Insights from the Spanish Context”, European Papers – a Journal on Law and Integration, 2020, vol. 5, no. 1, pp. 137–156, https://doi.org/10.15166/2499-8249/369.

429 “Former Panevežys Councillor Acquitted of Genocide Denial”, Kauno diena, 3 November 2016, https://kauno.diena.lt/naujienos/ kriminalai/nusikaltimai/buves-panevezio-tarybos-narys-isteisintas-del-genocido-neigimo-779891.

430 Vilnius City District Court Judgement of 18 February 2019, in the Case No. 1-61-908/2019, Trial No. 1-01-2-00009-2017-3, https:// liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=7f0e26584420-4a42-aa67-e21572bbd5d7.

431 Klaipeda District Court Judgement of 14 May 2019, in the Case No. 1-253-659/2019, Trial No. 1-04-2-00136-2018-8, https://view. officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww. atviraklaipeda.lt%2Fwp-content%2Fuploads%2F2019-05-14nuasmenintasnuosprendisbyloje1-253-659-2019.docx&wdOrigin=BROWSELINK.

432 Supreme Court of Lithuania Judgement of 6 November 2018, in the Case No. 2K-293-788/2018, Trial No. 1-02-2-00656-2016-1, https://liteko.teismai.lt/viesasprendimupaieska/tekstas.aspx?id=6cce3fcc-46f9-493d-b0aa-fd10b2e575a9.

433 Pettai, 2022, p. 188; for more on Latvian implementation of FD 2008, see European Union Agency for Fundamental Rights, “Franet National contribution to the Fundamental Rights Report 2021: Latvia”, https://fra.europa.eu/sites/default/files/fra_uploads/ fundamental_rights_report_2022-_latvia_.pdf2022.

434 Alina Cherviatsova, “Memory as a Battlefield: European Memorial Laws and Freedom of Speech”, The International Journal

In this context, it is difficult to assess the balance of denial laws with freedom of speech. According to Alina Cherviatsova, however, there is a criterion to draw a line between democratic and totalitarian approaches to history:

a democratic state preserving society’s collective memory respects citizens’ right to doubt, question, or reject the official-approved version of the past, meaning, that citizens shouldn’t be forced to disclose state-sponsored histories. Memory policy can only be based on the idea that society will voluntarily accept and support the states view of the past and force cannot be employed to enforce historical fidelity.434

c) The Ban on Russian Media Outlets after 2014 The newest potentially punitive memory laws adopted after 2014, pertaining mainly to the restrictions on Russian media, fall under the jurisdiction of the European Union Court of Justice in Luxembourg and the EU legal regulation.435 In 2015,436 2017437 and 2018,438 the EC considered temporary suspensions of the retransmission of ‘RTR Planeta’ on the basis of incitement to hatred, as decided by Lithuania, to be compatible with EU law. The same conclusion was reached again in 2019.439 Identical decisions were delivered regarding the bans in Latvia in 2019440 and 2021.441

The European Court of Justice upheld these deci-

of Human Rights, 2021, vol. 25, no. 4, pp. 675–694, doi: 10.1080/13642987.2020.1791826.

435 This mainly includes Article 11 of the Charter of Fundamental Rights (CFR), https://fra.europa.eu/en/eu-charter/article/11-freedom-expression-and-information. Directive 2010/13/ EU of The European Parliament and of The Council of 10 March 2010 on The Coordination of Certain Provisions Laid Down by Law, Regulation or Administrative Action in Member States Concerning the Provision of Audiovisual Media Services ‘Audio-Visual Media Services Directive’, https://eur-lex.europa.eu/legal-content/ EN/ALL/?uri=celex%3A32010L0013.

436 European Commission, “Decision on the Compatibility with EU Law of the Lithuanian Measures under Article 3(2) AVMSD”, 10 July 2015, https://digital-strategy.ec.europa.eu/en/library/decision-compatibility-eu-law-lithuanian-measures-under-article-32-avmsd.

437 European Commission, “The Decision to Suspend Broadcast of the Russian Language Channel “RTR Planeta” in Lithuania Complies with EU Rules”, 17 February 2017, https://digital-strategy.ec.europa.eu/en/news/decision-suspend-broadcast-russian-language-channel-rtr-planeta-lithuania-complies-eu-rules.

438 Ibid

439 Ibid

440 European Commission, “Commission Decision on the Measures Taken by the Latvian Regulator to Suspend Broadcast of the

sions, ruling in 2019 in favour of Lithuania, which imposed restrictions in 2016 on the retransmission of Russian TV channels, including ‘Rossiya RTR’, due to concerns about their content and the potential for propaganda dissemination.442 Russia challenged these restrictions, claiming that they were illegal under EU law. The Court, however, ruled that the restrictions were justified on the grounds of public safety and media pluralism, and that they did not violate EU law.443 Lithuanian courts have also rejected new appeals regarding the bans.444

3.2. Other Laws Related to Historical Memory Restitution

In Jasiuniene v. Lithuania (2003, Applications nos. 41510/98) concerning the failure of the domestic authorities to take the necessary measures to execute the judgment of a domestic court in relation to the restitution of nationalised property, the ECtHR found a violation of Article 6(1) of the ECHR and a violation of Article 1 of Protocol No. 1.445

Lustration and Vetting

The lustration and vetting policies of all three Baltic states have been contested before the ECtHR, with different outcomes. The ECtHR ruled against Lithuania in several cases, rejecting the idea of lustration in the

Russian Language Channel ‘Rossiya RTR’”, 3 May 2019, https:// digital-strategy.ec.europa.eu/en/library/commission-decision-measures-taken-latvian-regulator-suspend-broadcast-russian-language-channel.

441 European Commission, “Decision of Latvia to Suspend Broadcast of the TV Channel ‘Rossiya RTR’ Compatible with EU Law”, 12 May 2021, https://digital-strategy.ec.europa.eu/en/news/ decision-latvia-suspend-broadcast-tv-channel-rossiya-rtr-compatible-eu-law.

442 Vaidotas Beniušis, “EU Court Backs Lithuania in Russian TV Restriction Case”, LRT.lt, 5 July 2019, https://www.lrt.lt/en/news-in-english/19/1075696/eu-court-backs-lithuania-in-russian-tv-restrictioncase.

443 C-622/17, Judgement of 4 July 2019, Baltic Media Alliance Ltd v. Lietuvos radijo ir televiziojos komisija, https://curia.europa.eu/jcms/ upload/docs/application/pdf/2019-07/cp190087en.pdf.

444 “Lithuanian Court Rejects Russian Broadcaster’s Claim over Suspension”, LRT.lt, 7 September 2022, https://www.lrt.lt/en/ news-in-english/19/1775146/lithuanian-court-rejects-russian-broadcaster-s-claim-over-suspension.

445 Case of Jasi-uniene v. Lithuania, 6 March 2003, no. 41510/98, http://www.proyectos.cchs.csic.es/transitionaljustice/sites/default/files/maps/info/case-law/lithuania_jasiuniene_ecthr_2003. pdf). Execution of the judgments of the European Court of Human Rights Jasi-uniene and Jureviˇcus v. Lithuania, no.

private sector.446 In the first case, Sidabras and Džiautas v. Lithuania (2004, Applications nos. 55480/00 and 59330/00), which addressed restrictions on former KGB officers, the Court ruled that there had been a violation of Article 14 of the ECHR (prohibition of discrimination) in conjunction with Article 8 (a right to respect for one’s private and family life, their home and their correspondence).447 It concluded that the ban on the first applicant seeking employment in various branches of the private sector constituted a disproportionate measure, despite the legitimacy of the aims pursued. In the second, similar case – Rainys and Gasparaviˇcius v. Lithuania (2005, Applications nos. 70665/01 and 74345/01) – the Court also found a violation of Article 14.448

Three of the applicants from the abovementioned cases (Sidabras, Džiautas and Rainys) appealed to the ECtHR once again in 2008 (2008, Application nos. 50421/08). The three applicants, each formerly a tax inspector, prosecutor and lawyer in a private telecommunication company, respectively, complained about Lithuania’s failure to repeal legislation (‘the KGB Act’) banning former KGB employees from working in certain spheres of the private sector, despite ECtHR judgments in their favour in 2004 and 2005. In 2015, the Grand Chamber of ECtHR held that a) there was no violation of Article 14 (prohibition of discrimination), taken in conjunction with Article 8 (right to respect for private and family life) of the ECHR on account of the first two applicants, Mr Sidabras and Mr Džiautas, not being able to obtain employment in the private sector, and b) that there had been a violation of Article 14, taken in conjunction with Article 8 of the ECHR, on account of the third applicant, Mr Rainys, not being able to obtain employment in the private sector.449 The Court found in particular that neither Mr Sidabras nor Mr

41510/98, 30165/02, https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-108556%22]}.

446 Jakub J. Szczerbowski and Paulina Piotrowska, “Measures to Dismantle the Heritage of Communism in Central and Eastern Europe: Human Rights Context”, Cuadernos Constitucionales de la Cátedra Fadrique Furio Ceriol, vol. 62, no. 63, p. 245, https:// www.corteidh.or.cr/tablas/r26758.pdf.

447 Case of Džiautas v. Lithuania, 27 July 2004, no. 55480/00, 59330/00, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-61942%22]}.

448 Case of Rainys and Gasparaviˇcius v. Lithuania, 7 April 2005, no. 70665/01, 74345/01, https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-68749%22]}.

Džiautas had plausibly demonstrated that they had been discriminated against after the ECtHR judgments in their case. Mr Sidabras had not provided any particular information as to who had refused to employ him as a result of restrictions under the relevant legislation, or when. Nor did the Court see anything to contradict the domestic courts’ conclusion in Mr Sidabras’ case that he had remained unemployed because he lacked the necessary qualifications. As concerned Mr Džiautas, he had acknowledged that he was a trainee lawyer as of 2006 and that he had never attempted to obtain other private-sector employment. As concerned Mr Rainys, however, the Court was unconvinced that the government had demonstrated that the domestic courts’ explicit reference to the KGB Act – namely, the fact that Mr Rainys’ reinstatement to his job could not be resolved favourably while the KGB Act was still in force – had not been the decisive factor forming the legal basis on which his claim for reinstatement in the telecommunications company had been rejected.

In addition, the Lithuanian ‘Lustration law’ (1999) also underwent ECtHR scrutiny. In Žiˇckus v. Lithuania (2009, Application Nos. 26652/02), the applicant alleged that he had lost his job and that his employment prospects had been restricted as a result of the application to him of the law on registering, confession, entry into records and protection of persons who have admitted to secret collaboration with special services of the former USSR – in breach, he claimed, of Articles 8 and 14 of the ECHR. The Court ruled that there had indeed been a violation.

Latvia initially lost two cases before the ECtHR. The first was against J-anisAdamsons, who served in the Soviet coast guard (and, thus, by definition, as a KGB subordinate), and who later served as a Latvian border

449 https://hudoc.echr.coe.int/eng-press#{%22fulltext%22:[%2270665/01%22]}

450 Bergmane, 2018.

451 Case of Ždanoka v. Latvia, 16 March 2006, no. 58278/00; see also the Chamber case, Ždanoka v. Latvia, 17 June 2004, no. 58278/00.

452 Case ofAdamsons v. Latvia, 24 June 2008, no. 3669/03, para. 116. 453 Case of Rotaru v. Romania, 4 May 2000, no. 28341/95, para. 52. 454 Case of Ždanoka v. Latvia, 16 March 2006, no. 58278/00, para. 129.

455 Case of Sõro v. Estonia, 3 September 2015, no. 22588/08, para. 60. Case of Turek v. Slovakia, 14 February 2006, no. 57986/00, para. 115.

guard and the Minister of the Interior. Latvia also lost a second case against Tatjana Ždanoka, a pro-Soviet activist during the dissolution of the USSR. Latvia won the case on appeal, however, and Ždanoka was banned from running for public office.450 In 2006, the Grand Chamber of the ECtHR delivered its final judgment in Ždanoka v. Latvia, where the applicant alleged that her disqualification from standing for election to the Latvian Parliament and to municipal councils, imposed on account of her active participation within the Communist Party of Latvia after 13 January 1991, violated her rights as guaranteed by Article 3 of Protocol No. 1 to the ECHR and by Articles 10 and 11 of the ECHR.451 The ECtHR ruled that there had been no violation of Article 3 of Protocol No. 1 to the ECHR (the right to be elected).

Two years on, the ECtHR has summarised inAdamsons v. Latvia452 the requirements that lustration laws must fulfil to be compatible with the ECHR. In particular, they must meet accessibility and foreseeability requirements;453 the procedure must not exclusively serve retribution or vengeance; 454 the law must be sufficiently specific to determine the individual responsibility of the persons concerned and contain procedural guarantees;455 and the authorities must consider that the necessity of right restriction decreases over time.456

In the case Soro v. Estonia (2015, Application No. 22588/08), the ECtHR ruled that public disclosure of an Estonian’s past employment as a driver for the KGB, 13 years later, breached his right to respect for his private life.457

Banning Symbols

Attention should be also paid to the balance between ECHR framework regarding Soviet symbols and the new

Russian war symbols, which have been banned in the Baltic states since 2022. The question is: Would this regulation fall under Articles 10 or 17 of the ECHR? For instance, in Kühnen v. Germany, the German criminalisation of the dissemination of propaganda material aimed at furthering activities of a former Nazi organisation, using Article 17 of the ECHR, was accepted.458 Likewise, in Nix v. Germany, the Court accepted the German criminal ban on using Nazi symbols to maintain political peace and prevent the revival of Nazism.459

As mentioned previously, however, it differs from Vajnai v. Hungary on the (communist) red star – the prohibition of which had violated Article 10 of the ECHR, not Article 17.460 The Vajnai case demonstrates how ‘the ECtHR treats state interference with freedom of expression more leniently when memory about Nazism and the Holocaust must be protected than when a postCommunist state wishes to preserve a critical memory about Communism’.461 In this context, it remains unclear how the ECtHR might treat the recently adopted Baltic bans on Russian war symbols (see also Table 6).

456 Case ofAdamsons v. Latvia, 24 June 2008, no. 3669/03, para. 116.

457 Case of Sõro v. Estonia, 3 September 2015, no. 22588/08.

458 Case of Kühnen v. Germany, 12 May 1988, no. 12194/86.

459 Case of Nix v. Germany, 13 March 2018, no. 35285/16, para. 47.

460 Case of Vajnai v. Hungary, 8 October 2008, no. 33629/06, para. 52. Case of Fratanoló v. Hungary, 3 November 2011, no. 29459/10, para. 25–27. Similarly, see Case of Fáber v. Hungary, 24 July 2012, no. 40721/08 for the Árpád-striped flag.

461 Aleksandra Gliszczy´nska-Grabias, “The Jurisprudence of the European Court of Human Rights in the Area of Europe’s Totalitarian Past – Selected Examples”, International Criminal Law, 2021, https://iws.gov.pl/wp-content/uploads/2021/07/Zbrodnie-miedzynarodowe_EN_www.pdf.

The Particularities of the Estonian, Latvian and Lithuanian Memory Laws and the Broader Baltic Memory Politics

4.1. The Similarities and Differences between Estonia, Latvia and Lithuania

The Baltic states share several common threads: They comprise a common geographical region, they are all rather young states, all three were absorbed into the USSR in 1940 and remained under the Soviet occupation regime until the 1990s – only interrupted by the Nazi occupation in 1941–1944. In this context, the Baltic countries’ transitional memory politics attempted to overcome the consequences of the problematic past while also constructing strong national history narratives, with the experiences gained during the brief pre-war period of independence (1918–1940). In all three Baltic countries, memory laws aim to preserve the memory of past injustices, promote social harmony and cohesion, and seek to ensure the accurate representation of historical facts.

Common historical experiences resulted in similar general strategies in relation to various areas of transitional processes: a) due to potential EU membership, elites in Estonia, Latvia and Lithuania were encouraged to reconcile the established Holocaust narrative with their own narratives focused on Soviet crimes; b) the Baltic view on the Soviet role in World War II and during the post-war period differed greatly from that of western European states, the focus being on the Soviet responsibility for the outbreak of the war (namely, the Molotov–Ribbentrop Pact of 1939) rather than the Soviet role in defeating Nazism; c) after joining the EU and NATO, the ‘return to Europe’ national directions were replaced by the new goals of fully embracing the western memory standards and opposing the Russian political and cultural influence;462 d) a new unifying factor emerged after the Russian invasion of Ukraine in 2014 and in 2022, as all three Baltic states have been alarmed by the Kremlin’s rewriting of history since the

2000s, which has culminated with Russian territorial claims in the former Soviet space.

These common strategies have been reflected in similarities between the punitive memory laws of the Baltic states. First, together with the anti-hate punitive memory laws that were incorporated in the new Baltic criminal codes to ensure equality, dignity and peace during the EU admission process, all three states adopted criminal regulation addressing Soviet crimes during occupations – which the ECtHR later scrutinised (Sections 2.1. and 3.). Secondly, after the Russian invasion of Ukraine in 2022, all three Baltic states adopted potentially punitive restrictions on Russian and Belarusian citizens to address various issues, which serve to distribute Russian narratives; however, the degree of restrictions has varied (see Section 2.1.).

In the field of non-punitive memory laws, Estonia, Latvia and Lithuania adopted similar regulations on restitution in the 1990s, addressing the deprivation of Jewish property during 1941–1944, as well as the nationalisation of property during Soviet occupations (Section 2.2.), which resulted in numerous national legal cases regarding the restitution issues (Section 2.4.). All three Baltic states also underwent the rehabilitation, compensation and recognition of the victims, and they all opted for special institutions with varying statuses and functions to address the need to establish the facts of the past, which were highlighted in the de-Sovietisation processes. This included lustration, restitution, investigating Soviet crimes in national courts, and bringing them to the ECtHR. They all banned new Russian war symbols simultaneously in 2022. Quasi-memory laws also share some correlations: All three countries made the same types of declarations and apologies, and the street-renaming process intensified after 2014 and 2022 (Section 2.3). The days dedicated to the remembrance

462 Artem Spirin, “The EU Memory Framework and Memory Politics of The Baltic States: From Transitional to Transnational Memory”, May 2019, https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=8987404&fileOId=8987506.

463 Weiss-Wendt, 2008.

464 Kuczy´nska-Zonik, 2016.

465 At the state level, Estonia commemorates the Holocaust Remembrance Day on 27 January.

Infringement procedures in implementing

Lustration model after1990

of Soviet deportations in 1941 are commonly shared in Estonia, Latvia and Lithuania.

However, each country has its own distinct history and social experiences that have influenced the development of their respective memory laws. While the Holocaust question remains prominent in Latvia and Lithuania due to the populous local Jewish communities in the pre-war era, it is less urgent in Estonia, where the Jewish population was not sizable (see Table 8).463 On the other hand, Russian-speakers make up approximately 5–7 per cent of the Lithuanian population, 30 per cent in Latvia and 27 per cent in Estonia.464 This has resulted in differently targeted memory laws among the Baltic states: whereas Latvia has been struggling with the ‘full-fledged Latvian citizens’ concept in the context of elections (see Section 2.4.), Lithuania is still dealing with the restitution of Jewish property (see Section 2.2.), and Estonia was the first to address the Russian hybrid attack in its monument conflict of 2007 (see Section 2.2.).

As this report has shown, Lithuania stands out among the Baltics with the most substantial amount of national case law stemming from memory laws (Section 2.4.). Lithuania has further adopted a broader national concept of genocide, which protects from destroying not only national, ethnic, racial or religious groups, but also social and political groups, the intent of which is to be able to prosecute for genocide in Lithuania under the Soviet regime, whereas the other Baltics have opted for crimes against humanity (Section 2.1.). Although the socalled ‘monument wars’ have been less intense in Lithuania than in Estonia and Latvia, the lustration model was the most extreme there (Section 2.2.). Lithuania

was also the first of the Baltic states to ban Soviet symbols (from 2008; see Section 2.3). The criminalisation of genocide denial in 2010 (Section 2.1.) and so-called ‘de-Sovietisation law’ (initiated in 2022), with a broad scope of public objects to be removed as promoting totalitarian regimes, also stands out in the Baltic context (Section 2.3.).

Estonia is generally more critical towards memory legislation, as reflected in its practice not to ban Russian media outlets after 2014, the lack of criminal regulation on the denial of the Soviet crimes (Section 2.1.), as well as its less extreme lustration process (Section 2.2.). However, Estonia is noticeable among the Baltics in terms of having at least four different institutions to address past crimes; also, for having been the first state in the region targeted by the Russian hybrid attack in response to a Soviet monument removal in 2007 (linking the Estonian experience more closely to the Latvian one, due to both states’ substantial Russian minorities) (Section 2.2.). Moreover, Estonia is also less engaged in Holocaust remembrance, as only Latvia and Lithuania have specific dates to commemorate their local Jewish communities.465 The noteworthy factor is the Estonian rejection of the FD 2008 regulation on criminalising anti-hate speech, which resulted in the infringement procedure in 2021 and was solved in 2023 (Section 3.1.).

Meanwhile, Latvia ties in with Lithuania regarding the criminalisation of the denial of Soviet crimes in 2009 and ban on Russian media outlets after 2014 (Section 2.1.). It is distinct from Estonia and Lithuania for not having legal issues with the incorporation of FD 2008 regulation (Section 3.1.). Latvia also took the middle path in the lustration process (Section 2.2.). Nonethe-

Table 8. A Comparison of Estonian, Latvian and Lithuanian Memory Politics

less, Latvia can be distinguished as having instituted more days to commemorate its victims of the Soviet regime (Section 2.3.), as well as more challenges in dealing with monument removals (Section 2.2.) and bringing international attention to the Soviet legacy in the Baltic states in the path-breaking 2010 ECtHR case Konovov v. Latvia (Section 3.1.).

In this context, the politics of memory pursued by the Baltics is not another manifestation of some pathology unique to eastern Europe, but a phenomenon typical of the current stage in the post-colonial identity-construction process of the Baltic countries, and indeed eastern Europe as a whole.466

4.2. The Baltic Memory Laws in the European Context – Mental Decolonisation?

After the Cold War ended, the Baltic countries that had previously been under Soviet occupation took a new direction with respect to their history, revising their official narratives to place greater emphasis on their historical and cultural ties to western Europe and criticising authoritarian regimes; most notably the Soviet regime and later its legal successor state: the Russian Federation. The transition from ‘true socialism’ in the economy, monopoly of the Communist Party structures in politics, and the shift from an orientation towards Moscow in international strategy to a liberal market economy, pluralism, and integration into the Euro-Atlantic structures shaped the reframing of these memories and the related politics. According to Georges Mink and Laure Neumayer, the decline of communist sentiment has produced a ‘memory gap’ between these two parts of Europe that has yet to be bridged.467

Baltic memory laws entail a unique socio-cultural

466 Maria Mälksoo, “The First Lady of the Baltic ‘Memory Offensive’”, Estonian International Center for Defence and Security, 1 August 2007, https://icds.ee/en/the-first-lady-of-the-baltic-memory-offensive-2/.

467 Mink and Neumayer, 2013, p. 3.

468 Frances F. Foster, “Restitution of Expropriated Property: Post-Soviet Lessons for Cuba”, Columbia Journal of Transnational Law, 1996, vol. 34, no. 3, p. 626.

469 Perchoc, 2019.

470 Jaskovska and Moran, 2006, p. 490.

471 Calhoun, 2004, p. 10.

472 The formation and strengthening of national identities of those newly independent states might also have affected the course of transitional justice of these states. For a more thorough analysis concerning aspects of national identity formation, see Graham

context, as they share a history of independence in 1918–1940, both Nazi and Soviet occupations, rigorous post-Soviet decommunisation, and a widespread anti-communist political consensus after 1991. As Frances Foster noted, ‘the distinctive historical, cultural, and legal backgrounds of each of the Baltic states distinguish the Baltic model of transitional justice’.468

Firstly, memory laws in the Baltic states were adopted in the course of their dealing not only with the Nazi past (1941–1944), but also with the two Soviet occupations (1940–1941, 1944–1990). Thus, the unique historical experiences of foreign domination, including incorporation into the USSR and a brief but important period of independence (1918–1940), made transitional justice challenges exclusive to the Baltic states. In this way, the Baltic memory laws reflect not only the European debate regarding the balance between self-reflection (freedom of speech) and protecting certain narratives, but also exposes the unfinished mental decolonisation of the Baltic identity in countries that were not targeted by Soviet repression after World War II.

Secondly, all three Baltic states have adopted criminal legislation addressing Soviet crimes. This process overlapped with the adoption of anti-hate speech punitive memory laws in the 1990–2000s, while the Baltics worked towards their goal to join the EU. This shift was not only influenced by national factors, but also the international context; as both neighbouring countries (particularly Russia) and European institutions played a role in the transformation of the public narrative on past remembrance.469 Due to the many victims of the Soviet regime, the newly independent Baltic states could not simply forget the past and build new and better states and societies.470 Like all post-communist states

Smith, Aadne Aasland and Richard Mole, “Statehood, Ethnic Relations and Citizenship”, in The Baltic States: National Self-Determination in Estonia, Latvia and Lithuania, eds Graham Smith, Macmillan, London, 1994.

473 Daina S. Eglitis and Didzis B-erzi˛nš, “Mortal Threat: Latvian Jews at The Dawn of Nazi Occupation”, Nationalities Papers, 2018, vol. 46, no. 6, pp. 1063–1080, doi:10.1080/00905992.2017.1364 233; Cagla Demirel, “The Dilemma of Memory Laws to Restore the Dignity of Victims without Feeding into Ultra-Nationalism”, Baltic Worlds, 22 June 2022, https://balticworlds.com/the-dilemma-of-memory-laws/.

474 For more, see Mälksoo, 2003.

475 Elzbieta Kuzelewska, “Jurisdiction of the European Court of Human Rights in the Baltic States’ Cases”, Studies in Logic, Grammar and Rhetoric, 2019, vol. 59, no. 72, https://sciendo.com/

in transition, Estonia, Latvia and Lithuania struggled to provide justice to victims and to punish the perpetrators.471 Any justice against former regime collaborators could inflame ethnic tensions due to the large ethnic Russian minority therein.472 Moreover, the transitional justice process needed to balance two groups of victims: the Holocaust victims during the Nazi occupation (1941–1944) and Soviet victims from the two occupation periods (1940–1941, 1944–1990).473

Third, the laws addressing the crimes of the Soviet Union remained unhelpful when it came to sorting out the memory wars with Russia over World War II and the Soviet past. Thus, Baltic states opted for additional ways to minimise this perceived threat from Russia by adopting denial laws (see Section 3.1.). This process has resulted in the adoption of different denial laws in Latvia (2009) and Lithuania (2010), which enclose the criminalisation of the denial of both Nazi and Soviet crimes. In this context, the main dilemma addressed in the previous Baltic research and this report is that denying the criminal foundations of the Soviet regime undermines the legal continuity of the Baltic states and questions their legitimacy.474 Although Estonia, Latvia and Lithuania already have effective national legal systems for human rights protection,475 the promotion of ontological security,476 and simplistic binary narratives continue to prevail, frequently at the expense of democratic standards. Still, memory laws should be viewed within the context of responsible history, which necessitates careful consideration of the various defences and criticisms of legal engagement with historical memory.477 The proliferation of memory laws means that we should consider different regulatory responses to the need to protect historical truth in the respective CoE member states.478

pdf/10.2478/slgr-2019-0031.

476 According to this concept, states want ontological (or self-) security, as well as physical security. Routinely interacting with significant persons creates ontological stability and attachment. States may follow routines reflexively or rigorously, and attachment style affects security-seeking. For more, see Brent J. Steele, Ontological Security in International Relations Self-Identity and the IR State, Routledge, 2014, https://www.routledge.com/Ontological-Security-in-International-Relations-Self-Identity-and-the-IR/Steele/p/ book/9780415762151; J. Mitzen, “Ontological Security in World Politics: State Identity and the Security Dilemma”, European Journal of International Relations, 2006, vol. 12, no. 3, pp. 341–370, https://doi.org/10.1177/1354066106067346.

477 Belavusau and Gliszczy´nska-Grabias, 2020.

478 Anna Vójcik, “Memory Laws in Russia and Other Restrictions on

The Baltic memory laws differ from the broader landscape of memory governance in Europe mainly because they address the atrocities not by one but two totalitarian regimes. On the one hand, a memory of the EU was structured around the recognition of the Holocaust by European institutions. In contrast, a memory of the Baltic states has emphasised the recent communist past and crimes by the USSR against civilian populations during World War II.479 According to Anna Wójcik,

The ECtHR expects democratic states with a history of totalitarianism to condemn and distance themselves from these dark elements of their history, at least when it applies to responsibility for Nazi crimes. It is not certain whether the same applies to crimes perpetuated under Fascism, Communism or other forms of undemocratic regimes that states within the CoE had experienced first-hand. This tension was felt most acutely in cases where the ECtHR has sided with master historical narrative in Estonia, Latvia and Lithuania about the Soviet Union’s illegal occupation of these countries’ territories. Such a narrative contrasts with an official historical account that the Russian Federation supports, among others, through its memory laws: that it acted as a liberator rather than aggressor.480

As past atrocities by both totalitarian regimes in the twentieth century cannot be denied, the best option at present appears to be to accelerate the mental decolonisation among CoE members in order to close the ‘memory gap’ by rejecting the belief in Russian supremacy in the CEE region. Ukraine is the ultimate example of this process to date.481

Freedom of Expression”, Legal Dialogue: Topics from Civil Society, 9 October 2020, https://legal-dialogue.org/memory-laws-in-russiaand-other-restrictions-on-freedom-of-expression/.

479 “Memory Laws in Europe: What Common Horizons Are We Journeying Towards?” Magazine of the European Observatory on Memories, 11 March 2022, https://europeanmemories.net/magazine/memory-laws-in-europe-what-common-horizons-are-we-journeing-towards/.

480 For more, see Wójcik, 2019.

481 Jadwiga Rogoza, “The Mental Decolonization of Ukraine Has Reached a Point of No Return”, Raamop Rusland, 14 March 2013, https://www.raamoprusland.nl/dossiers/oekraine/2319-the-mental-decolonisation-of-ukraine-has-reached-a-point-of-no-return.

V Policy Recommendations

Based on the above analysis of the memory legislation in the Baltic states over the past 30 years, which has demonstrated how remembering the past has distinct legal and security implications for the present and future, several policy recommendations can be derived for various concerned groups:

1. Increase Awareness of the Double-edged Security Promise of Memory Laws

For the legislators in the Baltic states, the main recommendation is to carefully consider the distinct historical and societal contexts in the Baltic region while initiating and adopting new laws on issues of historical remembrance. Memory laws have provided Estonia, Latvia and Lithuania with the legal protection of their national biographies, rejecting the Russian revisionist narratives on the twentieth century events in the region. In that sense, the Baltic memory legislation has been part and parcel of rebuilding the Baltic statehoods. However, the danger of becoming a fortress for certain memory narratives could raise moral dilemmas and challenge the efforts to retain public debate and the ability to reflect critically on the past, especially in relation to the Nazi past, which has not been the primary Baltic concern for some time.

2. Encourage Research, Self-reflection and Open Debate on Both the Soviet and Nazi Occupation Periods

New regulations should include a more diverse understanding of not only the Soviet but also the Nazi past, which varies across the Baltic states. Sustained attention towards the Nazi era would serve to reduce the artificial divisions over history among the Baltic socie-

ties and help to neutralise the local Russian-speaking populations as the targets of Russian disinformation. Awareness of the complex histories would promote the societal capability for critical self-reflection while at the same time motivating the field players, such as national memory institutions and representatives of the victims of both Soviet and Nazi crimes, to fulfil their mission to disseminate historical narratives in a responsible manner. An essential objective for the Baltic states in this field is to balance between the pursuit of symbolic justice for Soviet and Nazi atrocities in order to come to terms with their complicated past.

3. Further the Baltic–Jewish Reconciliation Efforts

In the Latvian and Lithuanian contexts, the improvement of the Baltic–Jewish reconciliation should be a central task for legislators at both central and local levels. The results of the Baltic Presidential Commissions established in 1998 have thus far been limited to addressing this need.482 The process of authentic reconciliation, based on a broad and inclusive research focused on the rich Jewish heritage within the region, would serve for the Baltic nations as the recovery from their historical trauma in 1941–1944, as well as to debunk the enduring stereotypes associating Jews with communism, which, originating from the period of Soviet rule in the years 1940–1941, continue to contribute to anti-Semitism.483

4. Foster Understanding of History among the Russophone Communities in Estonia and Latvia

The legal regulation of historical memory in Estonia and Latvia should foster a critical understanding of the twentieth century events in the region among the local

482 Pettai, 2015.

483 Alfonsas Eidintas, “A ‘Jew–Communist’ Stereotype in Lithuania, 1940–1941”, Lithuanian Political Science Yearbook, 2000, vol. 01, https://www.lituanistika.lt/content/34881.

484 Airat Aklaev, From Confrontation to Integration: The Evolution of Ethnopolitics in the Baltic States, Peace Research Institute Frankfurt, Frankfurt am Main, 2001, https://www.files.ethz.ch/ isn/28804/prif59.pdf; James Hughes, “‘Exit’ in Deeply Divided Societies: Regimes of Discrimination in Estonia and Latvia and the Potential for Russophone Migration’”, Journal of Common Market Studies, 2005, vol. 43, no. 4, pp. 739–762, doi:10.1111/j.1468-5965.2005.00594.x.

Russophone communities, unfiltered by the Russian Federation-peddled narratives. The ethnic dynamics in Estonia and Latvia during the Soviet era were heavily influenced by significant and rapid changes in ethnodemographics resulting from the influx of Russianspeaking migrants. The ethnic divisions as evidenced by language barriers, disparities in occupational structure, and distinct political orientations are fodder for Russian disinformation campaigns.484

5. Increase Awareness of Historical Memory as a Resource and Tool in Information Warfare

For local and global security experts in the region, the main recommendation is to increase awareness of the manipulability of social memory in pursuing information warfare and weighing the political pros and cons of adequate societal protection against memory-related disinformation campaigns. With increased Russian efforts to intimidate the Baltic states since the annexation of Crimea in 2014, further intensified since 2022, Baltic security concerns have spiked. As Russia still considers the Baltics to be within its sphere of influence and seeks to restrict their further integration into the West, historical memory remains a security issue in the region. Since 1990, Baltic memory legislation indicates the most crucial security problems in the region, which should trigger consistent monitoring and analysis efforts in Europe and beyond while also encouraging the integration of memory issues into all levels of security and defence policy, planning and delivery.

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