The Denial or Justification of Genocide as a Criminal Offense in European Law. A proposal taking in account the Recommedation n.º 15 ECRI

Abstract

Abstract
In this paper are analyzed the rules of the EU and the Council of
Europe and the jurisprudence of the ECHR, on criminalization of
denial or justification of genocide, specifically the Holocaust of the
Jews to the Nazis in the Second War World. In view of the rising of
neo-Nazi parties and Nazi violence in other areas, such as football, it
is concluded that it is appropriate to include the criminalization of
justification of Nazi genocide in the European criminal codes, when
this is done with racist intent and seeking to reopen these similar
practices or publicly inciting to discrimination or to use violence
against people because of their race, religion or national or ethnic
origin. It is examined existing legislation in the field of international
and European law and it has been identified some of its deficiences
and it is proposed some guidelines as lege ferenda in line as they are
indicated in the Recommendation No. 7 of the ECRI, which is not a
legislative text, suggesting according to the author’s opinion that the
criminal offense of negationism of genocide should be reduced to the
justification of the Nazi Holocaust, according to the jurisprudence of
the Nuremberg military Tribunal, established by the London Agreement
of 8 April 1945, or at most strictly to the genocides recognized
by International Courts, and that the crime should not be extended
to the crimes against humanity or war crimes. Finally, it is noted
that the term «genocide» in relation to the criminalization of their
justification nowdays, should be used as a legal concept, referred only
to genocide declared as such by international tribunals, since the Nuremberg
Tribunal, so that the criminal offense of denial of genocide
should not be applied to previous historical events before that date.
On the one hand, the legally protected good would be the equal dignity
of every human person, in conjunction with other rights such
as freedom of expression and opinion. In this context of criminal
proceedings, the recommendations of the ECRI distinguish between
hate speech with different forms of crime and genocide denial as a
crime framed within the previous, but with a specific offense. The
wrongdoer that wants to be prevented is racial discrimination or
injury to the dignity of the person. It is suggested that discourses
of denial and / or justification of genocide will be addressed within
the crimes of racial discrimination and considered as a special form of
hate speech cases in which such discourse takes the form of a public
denial, trivialization, justification or condoning crimes of genocide,
whose existence has been recognized by the courts. It must respond
also to the intention of denigrating or stigmatizing individuals or
current groups because of their race, religion, nationality or ethnic or national origin. The criminalization of this speech is related to its objective, which is hurting individuals or groups. What follows is that there must be incitement or provocation to denigrate individuals or groups, which requires willful misconduct with racist intent and that the speech is made in public. The content of the unjust is that a certain danger of unlawful acts against persons or groups is generated. 

Two other features that must come together to give rise to crime of
hate speech is that speech reflects or promotes an unjustified assumption
that emits who is considered superior to a person or a group who
are subject to that criticism. Besides that speech shall be intended to
incite or reasonably expect the effect of inciting others to commit acts
of violence, intimidation, hostility or discrimination against those
targeted by the critical discourse,