Using and Abusing Memory Laws in Search of “Historical Truth’ : The Case of the 2018 Amendments to the Polish Institute of National Remembrance Act’

Współautorstwo: Gliszczyńska-Grabias, Aleksandra

The Right to Memory: History, Media, Law, and Ethics / ed. N. Tirosh and A. Reading, Berghahn Books, New York 2023, s. 112-131.

“Historical truth” is an extremely complex phenomenon that historians and scholars of memory studies struggle to grasp and define.“Truth” can be demanded by both those who seek recognition of their community’s suffering and the crimes committed against them and by those who deny such suffering and crimes. For this chapter, we propose two quotes from Václav Havel, a legendary Czech oppositionist, to frame our understanding of historical truth:“When a truth is not given complete freedom, freedom is not complete” and “The truth is not simply what you think it is. It is also the circumstances in which it is said, and to whom, why, and how it is said.” 2 Although these words do not directly refer to the issue of legal governance of history, they actually touch its very essence. Truth and freedom remain in a close, inseparable relationship with each other and this relationship applies to the research and public discourse.

Memory Laws in Poland and Hungary : Report by the research consortium ‘The Challenges of Populist Memory Politics and Militant Memory Laws (MEMOCRACY)’

Współautorstwo: Gliszczyńska-Grabias, Aleksandra; Wójcik, Anna; Sadowski, Mirosław Michał; Vorobiova, Anastasiia

Warszawa : Instytut Nauk Prawnych PAN, 2023

ISBN 9788366300767

Bibliografia - s. 55-75.

This Report consists of two main parts devoted to Poland’s and Hungary’s remembering of and dealing with the past, including with the use of memory laws and other deployments of legal and extra-legal means in historical policy, including soft law. It also discusses relevant domestic courts’ jurisprudence. The report situates these practices against European human rights law standards, inferred from the ECtHR case law. The aim of this exercise is capturing the dynamics of the Polish and Hungarian state’s relationship to the past after 1989 in a concise form and examine the current legal framework. The Polish and Hungarian sections are structured around common themes. In what follows, we shall discuss mnemonic constitutionalism, the institutionalisation of mnemonic governance, memorialisation of the Second World War and the Holocaust, reckoning with communism, education, and memory. The report includes discussions of political, social, and cultural factors that contextualise the legal framework. The final part concludes with broader reflections on the state of Polish and Hungarian memocracies, understood as constitutional and political regimes based on references to the past and a specific form of governance of historical memory. The report is supplemented by Conclusions and Recommendations addressed to a wide range of players and participants of public deliberations over history and the past, including lawmakers on domestic and European level, academia, and the civil society.

The authors are grateful to the Volkswagen Foundation for supporting this study within their research grant allocated for the consortium project ‘MEMOCRACY’ (2021-2024).

How long does the past endure? : ‘continuing violations’ and the ‘very distant past’ before the UN Human Rights Committee

Netherlands Quarterly of Human Rights 2023, t. 41, nr 2, s. 97-114.

The concept of ‘continuing violation’ allows reviewing applications concerning effects of violations that started before a treaty came into a force with regard to a state that allegedly committed the violation. This article analyses how the UN Human Rights Committee has recently approached two communications concerning continuing violations that occurred in the 1930s and 1940s (K.K. and Others v Russia; F.A.J. and B.M.R.A. v Spain). It critiques the fact that the Committee has introduced an additional qualification to its case law on continuing violations, namely that it has no jurisdiction over the violations with continuing effect, when underlying violations happened in the ‘very distant past’. The article argues that communications raising violations of the families of forcibly disappeared persons – at least these brought by their children – should not be ruled inadmissible because of time constraint since the disappearances. Lastly, the article reveals a tacit influence of the European Court of Human Rights on the Committee in the analysed case law.

Exposing Covert Border Enforcement : Why Failing to Shift the Burden of Proof in Pushback Cases is Wrong

European Convention on Human Rights Law Review 2023, nr 4, s. 473-494.

The paper analyses how the European Court of Human Rights (ECtHR or the Court) assesses evidence when states conceal border practices, such as pushbacks, comparing the Court’s approach in those cases to that in enforced disappearance cases. In both types of cases, states deny that the conduct – which would have violated human rights – has taken place and provide neither the applicants nor the Court with evidence. While surface examination of the relevant case law could suggest that the ECtHR shifts the burden of proof in the same way in both sets of cases, I demonstrate that the Court expects applicants in covert border enforcement cases to provide stronger evidence, which is then labelled as prima facie evidence. I argue that the burden of proof should be shifted in the same way in both scenarios, as the position of the victims and the availability of evidence is strikingly similar.

Protecting the Good Name of the Nation as Memory Law

European Constitutional Law Review 2023, t. 19, nr 4, s. 623-641.

This article demonstrates how the protection of the nation’s good name can be used as a memory law on the basis of the Polish and Turkish provisions that protect the nation’s good name. While Poland and Turkey are pursuing policies to prohibit and limit mentioning crimes against Jews during the Second World War by Poles or the Armenian genocide by the Ottoman Empire respectively, neither have passed specific laws explicitly prohibiting such statements. Three critical similarities between the Turkish and Polish laws and the context in which they are implemented have been identified, namely the broad terms of the clause, the role of organisations in applying the law and larger memory politics pursued by the state. These two states have chosen to use such provisions instead of adopting what is referred to as memory law per se, which explicitly mentions a historical event. This article proposes three reasons why this has not been done. First, such an approach covers more historical events than a specific memory law. Second, using a de facto memory law allows for more flexibility, so the state authorities can choose when to react and when not to react to a certain statement about the past. Third, this approach enables the avoidance of major international criticism, which would very likely accompany a law explicitly penalising the mention of the Armenian genocide or crimes by Poles against Jews, respectively.