Expression crimes and the creation and protection of historical memory by means of criminal law

Basic theories and principles of criminal law such as the legal interest theory, the principles of harm and legality, and the criminal law theory of the act all apply, more or less strictly, in most (not only Western) legal orders. The criminalisation of internal thoughts, moral beliefs, and personal opinions, however, is a grey policy area. Even in countries with longstanding constitutional traditions in safeguarding civil rights and liberties, penal laws may result in restrictions on fundamental freedoms, such as the freedoms of personal expression, science, and research. Apart from the classic speech offences, contemporary provisions of international and European criminal law have created crimes concerning the public and racist condonation or denial of crimes of genocide, war crimes, crimes against humanity, and of the Holocaust. These are all included in the offence category of the so-called ‘expression crimes’. Their cross-border dimension becomes particularly evident when committed via the internet, e.g., in scientific or personal blogs, or through the international publication of books and articles. Based on a recent high-profile trial in Greece against a German history professor, this paper examines, inter alia, the feasibility of protecting or creating historical memory by way of decisions of criminal courts and legal acts of parliaments. It also addresses the question of whether it would be preferable, in terms of transnational and transitional justice, to resolve controversies about crucial historical events by means of science and outside the criminal courts.