Stalinism equals or versus Nazism? Central and Eastern European unwholesome legacy in the European Court of Human Rights

As Central and East European states joined the Council of Europe and acceded to the European Convention of Human Rights system, a complex and difficult historical legacy of that part of the continent yielded an important challenge to the European Court of Human Rights. Yet the Strasburg standards developed in cases relating to the Nazi regime, and in particular the negation of Holocaust, have not been automatically extrapolated by the ECtHR onto its jurisprudence concerning the Communist regime.

In July 2008 the ECtHR delivered a landmark decision in a case against Hungary which hinged on the question of admissibility of restricting a public display of Communist symbols. The Court voiced its opinion in the debate on the equal treatment of the crimes committed by Hitler and those perpetrated by Stalin, which has been becoming increasingly emotional over the last years.

In my paper I will reflect upon the Court’s attempt to ascertain which “fears” grounded in the recent history deserve to be protected under the Convention, and which “cannot be regarded as rational” and therefore undeserving of legal protection. As the ECtHR increasingly shapes the European legal landscape, addressing this question is central for a determination about whether, and to what extent, the law may attempt to shape collective memory and identity of post-Communist societies.