Fijalkowski, Agata (2014) The criminalisation of symbols of the past : expression, law and memory. International Journal of Law in Context, 10 (3). pp. 295-314. ISSN 1744-5523
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Abstract
This article examines the criminalisation of symbols of the past. It considers the 2011 judgment of the Polish Constitutional Tribunal. In this compact and well-ordered decision, the Tribunal, with reference to key European examples, critically assesses the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past that pertained to fascist, Communist, or other totalitarian content. This article considers the Tribunal’s ruling within three important contexts: firstly, the European, where the concept of totalitarian crimes has become a European question and subject of European human rights, namely the freedom of expression; secondly, post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, transitional justice, where the criminalisation of symbols of the past has attained a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. This article discusses the two case studies of most relevance to Poland, namely that of Germany and Hungary. Reference is also made to the Baltic States, where there has been a concerted effort, together with Poland, to bring the notion of totalitarian crimes and histories to the attention of Europe. The article concurs that the cases concerning the use of symbols is an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal philosophical complexities of the crime, political realities, and key dimensions of transitional justice and its relationship to expression, law and memory.