Security concerns are rarely openly invoked in preambles or justifications to memory laws, that is laws endorsing certain narratives about the past, often aimed at strengthening the collective identity of a nation or community.. However, the notion is present in broader debates over the legal governance of collective memory. Sadly, ensuring security – a fundamental obligation and prerogative of government – often serves as an excuse to increase the state’s grasp on citizens’ freedoms.
Preserving sovereignty in post-Soviet democracies
A significant number of memory laws adopted in Central and Eastern Europe aim to reckon with the period of domination of the Soviet Union, Stalinism, and the “real existing socialism”. The function of some of these regulations adopted in Estonia, Latvia, Lithuania, and Ukraine – apart from commemorating victims and condemning past atrocities – is to manifest the state’s sovereignty.
The official condemnations of the Soviet occupation and gross human rights violations – including deportations to the USSR or the systematic starvation of local populations, notably the Great Famine in Ukraine between 1932 and 1933 – play an important role in the political communication with Vladimir Putin’s Russia. Russia has legally sanctioned imperial and nationalist narratives about its role in the Second World War (the so-called Great Patriotic War) and the subsequent defeat of Nazi Germany. In this narrative, there is no room for admitting Soviet crimes. In the context of the Russian hybrid war in Ukraine, Maria Mälksoo described those laws as a strategic element of “mnemonic security” for countries in the post-Soviet region. The multiplicity and diversity of memory laws adopted in the region may stem from a need for reinforcing fragile sovereignty with a solid legal foundation. Memory laws endorse distinct identities of “small nations” because they normalize strong judgments about the past and distinguish historical – and contemporary – enemies and allies.
Solidifying national majority narratives
The international communication between states is important to understand motivations behind the proposal for a new memory law in Poland – a bill that would punish with prison sentences and fines the use of the term “Polish death camps” to designate the German Nazi concentration camps and death camps that operated on the occupied territory of Poland. The law’s proponents argue that introducing the risk of criminal sanctions could help to eradicate “defective memory codes”. According to the current Law and Justice government, diplomatic and educational efforts of previous Polish administrations did not bring satisfactory results in this regard. The proposal aims to eradicate statements inconsistent with the documented historical truth, and it is justified as a tool to fight against historical revisionism, in this case understood as – intentionally or not – a diminishing of German responsibility for the Second World War atrocities while emphasizing Polish complicity in the Holocaust and other crimes. The narrative of some Poles perpetuating and being complicit in WW2 crimes is rebutted by many in Poland, and heroic and martyrologic narratives about Polish history and Poles in European history are preferred by the current right-wing government. From this perspective, national identity is secured and preserved only when one version of the past is shared at home and abroad.
But Poland is not the first, nor (probably) the last, country to introduce memory laws privileging a narrative favoring the majority population at the expense of minority perspectives. For example, the French 2005 memory law required positive education about elements of French presence in occupied overseas territories, which was later ruled unconstitutional and removed from the French legal system. Similarly, an Israeli legislator attempted to strengthen Jewish ethnic identity in Israel through an array of regulations introduced after 2000 with the goal of legally preventing Palestinians from mourning Nakba, the Israeli Independence Day established in 1948.
Attempting to ban totalitarian ideologies
A different view connecting the legal regulation of memory and issues of security can be realized through an examination of bans on propagating totalitarian ideologies: fascism, Nazism, Stalinism, and communism. Keeping in mind the ease with which European societies and political systems followed the direction and leadership of authoritarian and totalitarian governments in the interwar period, postwar constitutionalists developed militant democracies with legal mechanisms which attempted to protect the new democracies from any internal dismantlement. These include constitutional and criminal bans on the propagation of fascism and other totalitarian ideologies. The goal of these aims is to necessarily and proportionately limit the freedom of expression, including the freedom to disseminate research results, without infringing on the essence of this fundamental freedom. This is why in many countries, such as Poland, the propagation of totalitarian ideologies is banned, which means that circulating content accompanied with critical commentary is exempted from criminal sanctions.
Though in practice, courts do not always agree what “totalitarian ideologies” stands for. The summoned experts present conflicting qualifications of political movements, which can be situated on quite a wide spectrum between authoritarianism and totalitarianism. This is why many post-communist countries – including Bulgaria, Estonia, Hungary, Latvia, and Poland – have attempted to detail the legal definition of “totalitarianism” so that it would, without any doubt, include periods described as the “Soviet occupation”, “Stalinism”, “communism”, or the “real existing socialism”. The Polish constitution bans fascist, Nazi and communist parties (article 13 of the 1997 Constitution of the Republic of Poland), and the penal code bans propagating fascism or other totalitarian regimes (article 256 of the Penal Code). In 2016, the Law and Justice government passed two controversial memory laws, which introduced a new legal definition of “a totalitarian state”: the so-called act on the decommunization of streets names from April 2016 and the so-called second ustawa dezubekizacyjna from December 2016, an amendment to a 2009 law cutting pensions and benefits to certain categories of communist-era state employees.
Limiting fundamental rights
When presenting memory laws in the context of their impact on relations between countries, national identity politics, power relations between majority and minority groups, or the protection they provide against the dismantlement of the democracy from the inside, we should also remember that these acts also impact – perhaps above all – the scope of protection of the rights and freedoms of individuals. In other words, they have a direct effect on the legal situation of citizens.
Some memory laws are more likely to help than harm the protection of human rights and the shaping of attitudes against the wrongs committed in the past. For instance, the trend for reckoning with the period of Soviet domination in Central and Eastern Europe resulted in a number of rulings from state and international tribunals and bodies charged with the protection of human rights in cases related to the responsibility of Soviet officers for crimes against civilian populations during World War II and in the years that followed.
However, decreeing one official version of history or clear valuations of certain trends in political thought always leaves room for abuse and can lead to significant restrictions of freedom of expression. It is even worse if these legal acts are drafted in the spirit of resentment or in a hurry, or do not meet the high standards of good legislation; these instances tend to end in introducing blanket regulations that give the courts too much room for interpretation or provide politically appointed servants with too much discretionary power, as has often been the case with the two aforementioned Polish memory laws from 2016.
Complaints have also been voiced in relation to the Hungarian bans on the propagation of the communist regime, including a ban on any use of communist symbols, which were used to condemn the activist of a registered political party who gave a speech at a political gathering wearing on his lapel a red star– the symbol of the international workers’ movement. When ruling in this case, the European Court of Human Rights in Strasburg underlined that there was a difference between laws fulfilling important social needs and those answering the actual or claimed preferences of the public opinion. This is why even the popularity of anti-communism – as well as any political stances regarding the turbulent past of Hungarian society – was not sufficient enough to disproportionately limit a citizen’s political and social freedoms and rights. Similar arguments are now being used in Poland by human rights lawyers who criticize many solutions implemented by the act of cutting pensions from communist-era state employees. The act cuts the pensions of entire categories of persons who were employed “in the service of the totalitarian state” working for a list of formations within a certain time period, without individualizing the reasons for cutting the benefits, de facto introducing a type of collective guilt and punishment. More than 1,000 individual complaints have already been brought to the Polish Ombudsman’s office regarding the outcomes of this memory law on the rights of individuals in Poland.
From these few examples, we can already infer that memory laws pose serious risks of being instrumentally deployed in political struggles, for instance to assign clearly negative connotations to political adversaries, whether this be between states or domestic political parties. Politicians often profit from the “security” vs “rights and freedoms” dichotomy and introduce regulations that benefit their electoral success and increase the state’s grip over its citizens rather than increasing the protection of fundamental freedoms.
Anna Wójcik (1989) – assistant at the Poznan Human Rights Center of the Institute of Legal Studies of the Polish Academy of Sciences. She is preparing a doctoral dissertation on the legal regulation of memory – her research is part of the MELA Memory Laws in European and Comparative Perspective project. She graduated from the University of Warsaw and the Central European University.
The article was first published in “Res Publica Nowa” nr 3/2017 and translated into English with support from the Polish Ministry of Science and Higher Education’s research dissemination funds (contract no. 692/P-DUN/217).
Tr. Aleksandra Małecka
 See Uladzislau Belavusau, Aleksandra Gliszczyńska-Grabias (ed.), Law and Memory: Towards Legal Governance of History, Cambridge University Press 2017.
 Eva-Clarita Pettai, Vello Pettai, Transitional and Retrospective Justice in the Baltic States, Cambridge University Press 2015.
 Maria Mälksoo, Ukraine’s Decommunization Laws: A Hard Case for the EU Policy on Transitional Justice? 2017. Paper presented at the 15th Conference of the European Union Studies Association, Miami, United States, May 4–5, 2017.
 Lauri Mälksoo, “Kononov v. Latvia”, American Journal of International Law, 105(1), 2011, p. 101–108.; N. Koposov, Defending Stalinism By Means of Criminal Law: Russia, 1995-2014, [in:] U. Belavusau,A. Gliszczyńska-Grabias, Law and Memory…, op. cit..
 Maria Mälksoo, “‘Memory must be defended’: Beyond the politics of mnemonical security”, Security Dialogue, 46(3), 2015, p. 221–237.;I. Nuzov, The Dynamics of Collective Memory in the Ukraine Crisis: A Transitional Justice Perspective, „International Journal of Transitional Justice”, 11(1), 2016, p. 132–153.
 Act of 29 April 2016 amending the Act on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation and certain other acts.
 Décret n°2006–160 du 15 février 2006 portant abrogation du deuxième alinéa de l’article 4 de la loi n° 2005-158 du 23 février 2005 portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés.
 Ronnie Olesker, “Law-making and the Securitization of the Jewish Identity in Israel”, Ethnopolitics, 13(2) 2014, p. 105–121.
 Act of 1 April 2016 on the prohibition of propagation of communism or any other totalitarian system through the names of all public buildings, structures and facilities.
 Act of 16 December 2016 amending the Act on Old Age Pensions of Professional Soldiers and Their Families and the Act on Old Age Pensions of Functionaries of the Police, the Internal Security Agency, the Foreign Intelligence Agency, the Military Counter-Intelligence Service, the Military Intelligence Service, the Central Anticorruption Bureau, the Border Guard, the Government Protection Bureau, the State Fire Service and the Penitentiary Service as well as Their Families.
 Judgment of the European Court of Human Rights in Kononov v. Latvia (complaint no 36376/04) from 24 July 2008. Judgment of the European Court of Human Rights in Kononov v. Latvia (complaint no. 36376/04) from 17 May 2010.
 Judgment of the European Court of Human Rights in Vajnai v. Hungary (complaint no. (33629/06) from 8 October 2008