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; Baranowska, Grażyna; 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).

Using Financial Tools to Protect the Rule of Law : the Case of Poland

The Rule of Law in the EU: Crisis and Solutions / edited by Xavier Groussot, Anna Zemskova. - Swedish Institute for European Policy Studies, Sztokholm 2023, s. 46-52.

The contribution discusses the European Union’s financial sanction mechanisms intended to foster rule of law compliance in Poland and the Polish government’s response. Sanctions include the Court of Justice of the EU’s periodic penalties, delaying approval of the Recovery and Resilience Plan funding, making the disbursement of funds conditional upon rule of law milestones, and linking European funds to observance of the Charter of Fundamental Rights of the EU. It finds that the effectiveness of these sanctions is hindered by political factors in Poland, despite the government’s openness to cosmetic changes.

Introduction to the Special Section ‘Memory Laws and the Rule of Law’

European Constitutional Law Review 2023, t. 19, nr 4, s. 591-601.

Współautorstwo: Rhein-Fischer, Paula

The articles in this Special Section demonstrate that modest attempts to reconcile society and consolidate democracy by transitional justice measures may not prevent a democratising state from turning into an illiberal populist regime. Memory laws are an important part of the governance toolkit in the rule of law backsliding states and can contribute to further moving away from transnational standards on the rule of law and human rights. Governments in states experiencing rule of law backsliding adopt diverse strategies regarding memory laws, sometimes concurrently. Frequently, these strategies involve bold and straightforward historical policies and laws aimed at whitewashing a country’s national history. In other instances, political leaders may opt to disguise their true intentions, for example, by utilising and distorting pre-existing legal mechanisms such as strategic civil lawsuits against their critics. It is important for the governments of liberal democracies to be aware of this inherent risk of memory laws when they decide to join the trend of governing the memory of the past.

Memory Laws, Rule of Law, and Democratic Backsliding : The Case of Poland

Journal of Illiberalism Studies 2023, t. 3, nr 3, s. 71-87.

This article argues that the memory laws adopted during the democratic backsliding in Poland from 2015 to 2023 are a perversion of classic European memory laws that aimed at safeguarding democracy from internal dismantlement and protecting the rights and freedoms of individuals from social ills, such as in the case of Holocaust denial. The new wave of Polish memory laws was an element of an anti-liberal turn in Poland and contributed to a further move away from the rule of law, human rights, and European legal standards. The mechanisms adopted in those laws are removed from their stated official purposes and are examples of penal populism and populist revanchism instead of transitional justice. This article argues that adopting such memory laws was possible due to democratic backsliding and that they reinforce the erosion of democratic standards by restricting the rights of individuals. Moreover, the politically subordinate Constitutional Tribunal’s reaction to the motions about the constitutionality of these memory laws further evidences a systemic lack of independent, centralized judicial review. This phenomenon has far-reaching, negative consequences for democratic standards.

The Politicisation of Constitutional Review of Memory Laws

European Constitutional Law Review 2023, t. 19, nr 4, s. 664-689.

Współautorstwo: Rhein-Fischer, Paula

This article examines the judicial review of memory laws by constitutional courts and argues that it is prone to politicisation – understood as the process in which the room for political (non-legal) manoeuvre and decision-making is widened – as opposed to juridification, the process in which issues are settled according to pre-established ‘objective’ legal principles and rules. This assertion is founded upon the analysis of how two very different constitutional courts – the German Federal Constitutional Court and the Polish Constitutional Tribunal after 2015 – have dealt with memory laws, which refer here to legal regulations that inscribe a state-approved interpretation of history into law, most often entailing restrictions of the rights and freedoms of individuals. The article contextualises and juxtaposes legal techniques used by those constitutional courts to navigate a highly sensitive intersection of the rights and freedoms of individuals and historical policy.