Criminalizing communism is not protecting Czech democracy but undermining it

22. 7. 2025 / Muriel Blaive

čas čtení 10 minut
 

Many thanks to Marián Lóži for his critical remarks on this text.

On 17 July 2025, President Petr Pavel signed into law an amendment to the Czech Criminal Code, which now explicitly criminalizes the “promotion of Nazism and communism.” At first glance, the amendment to §403 of the Criminal Code closes a historical gap. In reality, it opens a political and legal minefield. The revised paragraph reads:

Whoever establishes, supports, or promotes Nazi, communist, or other movements that demonstrably aim to suppress human rights and freedoms, or that advocate racial, ethnic, national, religious, or class hatred, shall be punished by imprisonment of one to five years.

The novelty lies in the insertion of the words “Nazi, communist, or other” into a sentence that previously referred only to “movements” aiming to suppress rights. The reasoning behind this insertion (n°6598), authored by MPs Martin Dlouhý, Marek Benda, and Šimon Heller, is far from neutral:


 

In Czech society, there still has been no proper reckoning with the communist past in criminal law. … there is a noticeable disparity – both within society and in legal norms – in the way in which we have dealt with Nazism and communism. The aim of this amendment is, at least partially, to correct this disparity.

The ideological motivation for this amendment is transparent: it is to rewrite history for political gain. As I have argued before in Britské listy, to equate Nazism and communism in Czechoslovakia amounts to relativizing Nazi crimes: suggesting that both regimes caused equivalent suffering is not just historically inaccurate but trivializes the Holocaust. Let us remind that the victims of Nazism far outnumber those of communism in Czechoslovakia (360,000 for the former, 4,500 for the latter.) All victims of communism deserve empathy and recognition, but so do all victims of Nazism. Competitive victimhood is neither a path to justice nor a substitute for historical understanding.

It is doubtful that anyone in today’s Czech Republic is endangering democracy by promoting communism. The real purpose of this amendment is to provide an opportunity for institutions like the Institute for the Study of Totalitarian Regimes, the Museum of Twentieth Century Memory, and the Platform of European Memory and Conscience, all of which have been losing public credit and relevance in the past few years, to revive their influence by legally enshrining a narrow, ideologically driven narrative.

Some within the Czech political and intellectual elites dismiss concerns about this law by claiming it is purely symbolic. But that is precisely the danger – criminal code provisions are not meant to be symbolic declarations, they are legal instruments. Treating them otherwise erodes the foundations of the rule of law.

Czech political elites have had a marked tendency to weaponize historical laws

In my presentation at the Memory Studies Association conference in Prague, which coincidentally took place also on 17 July 2025, I precisely discussed the fact that several Czech jurists I have recently interviewed have interpreted the 1993 Act on the Illegality of the Communist Regime, which declared the past communist regime “illegal”, “criminal”, and “illegitimate”, as “merely proclamatory” and therefore “meaningless.”

I made the argument in my presentation that this “meaningless” 1993 law has in fact exerted a major influence until today on the way in which communist history has been written and the communist past commemorated in the Czech Republic. The more time passes, the more Czech society is presented as a collective victim. The more painful question of collaboration with, or accommodation to, the communist (or Nazi) rule, on the other hand, is conveniently swept under the carpet. As I argued many times in the columns of Britské listy, Milada Horáková is presented as having been “murdered by the communists” (instead of executed by the full machinery of the Czechoslovak communist state); the film Waves (Vlny) presents the 1968 Prague Spring as if it was akin to Stalinism while presenting unsubstantiated figures of repression (“5,800 executions” – where? when?); and the new schoolbook meant to restitute a measure of historical reflection on these events was pulled from the shelves by the new director of the Institute for the Study of Totalitarian Regimes.

Laws should not be passed for public amusement. When the lawmaker adopts legislation that jurists describe as symbolic, declarative, or irrelevant, it is not strengthening democratic norms but corroding them.

Is Czech society really eager to police the memory of genocides around the world?

Another question is the geographic jurisdiction of such legal provisions. Supporters of laws criminalizing the denial of genocides anywhere in the world rightly argue that genocides undermine universal human rights and can incite hatred anywhere, thus they should be punished everywhere. Such laws, they contend, demonstrate international solidarity and align with shared legal standards, such as those encouraged by the European Union or the International Criminal Court.

While these arguments carry an undeniable normative appeal, they are also fraught with legal and practical complications. Applying national criminal law to the denial of atrocities that occurred in other jurisdictions can stretch the legitimacy of this law. It opens the door to selective enforcement, and it may chill legitimate debates at a time when historical facts are still contested or evolving. Who can seriously believe that the Czech justice system is prepared intellectually, institutionally, and politically to adjudicate denialist speech related to the genocides or war crimes in Rwanda, Darfur, Cambodia, Armenia, or Namibia?

The risk of double standards is also real: states tend to memorialize the crimes or genocides that are meaningful to them, usually due to their proximity in time and space, while ignoring others. We can take the example of colonial atrocities or the Transatlantic slave trade, which Czech citizens would find difficult to ever feel responsible for. And even the countries that are directly concerned find it often impossible to police history and memory in a way both historically coherent and devoid of political interests: for instance, France criminalizes Holocaust denial, but passed a law praising the “positive aspects” of its colonial rule.

The new provision in §403 of the Czech Criminal Code is especially unnecessary considering that §405 already criminalizes the denial, justification, or endorsement of genocide, war crimes, or crimes against humanity committed by Nazis, communists, or others. Had such crimes been committed by communists in Czechoslovakia – none have been legally recognized so far, nor am I aware of any claim in this direction – the existing law would have largely sufficed.

It is to be noted on the contrary that Western historians opposed the first laws criminalizing Holocaust denial when they were passed at the end of the 1980s and the 1990s – not because they deny the existence of the Holocaust, but because they were acutely aware of the potential for political instrumentalization of this memory policing. The Czech public will be interested to know that it is a communist MP, Claude Gayssot, who led the campaign to criminalize Holocaust denial in French law, a provision which was adopted in 1990 as communism had just fallen in Czechoslovakia. The same Gayssot must be surprised to learn today that the principle of the memory laws he promoted, no doubt with the secret hope of strengthening the communists, is now used against the communists. Irony reigns supreme.

The perils of politicizing history

An even better case concerning the perils of politicizing history is that of Gaza. The hardships impressed upon the Gaza population are already called “genocide” by genocide scholars like Omer Bartov, and it is not unthinkable that the international community should do the same in the future. Moreover, the International Criminal Court has issued arrest warrants for Benjamin Netanyahu and Yoav Gallant in November 2024 for “crimes against humanity” and “war crimes”, two types of crimes which already fulfill the condition of “movements that demonstrably aim to suppress human rights and freedoms” described in §403 of the Czech criminal code. Does this mean that Czech courts should now start indicting Czech citizens and sentence them to five years if they dare argue that Israel is only protecting itself? The absurdity of history politicization would reach its climax in a country which massively supports Israel. What this hypothetical scenario mainly shows is that Western democracies are increasingly at risk of conflating legitimate political disagreement with criminal speech, and are more and more eager to police the speech those in power disagree with.

Supporters of the amendment may claim that it targets only totalitarian or dictatorial ideologies. But also on this count, the criminal code article is dangerously vague and goes much beyond what the EU was expecting. Will expressing nostalgia for pre-1989 social security be considered a crime? Will quoting Karl Marx get you investigated? Will sentencing MEP Kateřina Konečná to five years in jail next time she “promotes communism” during electoral campaigns really strengthen Czech democracy? Wouldn’t it be more relevant and profitable to simply explain we disagree with her if we do, and take down her arguments during a televised public debate, for instance?

This actualization of the criminal code is also inconsistent from a legal viewpoint. The Communist Party of Bohemia and Moravia (KSČM) continues to legally exist, while the criminal code is now criminalizing the very ideology it is based on and promotes. To permit a political party to participate in elections while punishing its leaders or members for supporting its platform bears a high potential for incoherence. Again, it is the Czech rule of law which is suffering.

And let us not forget the broader implications: what if an anticommunist hardliner like Pavel Žáček ever came to power? Stranger things happened. Under this amendment, how many people could be harassed or imprisoned for their academic work or public stance concerning the communist past?

Conclusion: The political weaponization of Czech history continues

Let us be clear: this new article of the Czech criminal code was not meant to represent a principled defense of memory and justice around the world, but to delegitimize the Czech left, selectively rewrite history, and enhance the social and professional capital of its promoters, especially that of the discredited Institute for the Study of Totalitarian Regimes, which has struggled since 2022 to justify its relevance and generous budget now that three quarters of its employees have left the institute or been dismissed and replaced by less than credentialed academics.

What this actualization of the criminal code reveals is political opportunism disguised as legislative responsibility. This small but highly consequential amendment was passed as part of a sweeping reworking of the criminal code, one that included vital reforms (such as the redefinition of domestic violence) which were moreover demanded by Brussels. If President Pavel had refused to sign the amendment, critics would have accused him of obstructing the protection of abuse victims.

Yet Petr Pavel is a former communist army intelligence career officer himself, which places him in an absurd situation vis-à-vis this law. One can argue that a principled resignation from his post would have sent a strong message. His capitulation turns him instead into yet another figure in a long series of Czech presidents who opted for the politically expedient path rather than moral clarity. His decision provides yet another ratification to the growing normalization of vague, ideologically charged, and ultimately damaging legislation. In the case at hand, activists with minimal popular legitimacy but entrenched influence in elite circles have hijacked Czech democracy and gotten away with it.

There may yet be recourse. If Czech courts enforce this amendment, a complaint to the European Court of Human Rights (ECtHR) would probably still find traction, as the latter has repeatedly upheld the importance of freedom of expression, especially in political and historical discourse. Unless, of course, European democracy collapses first – which, in today’s climate, can no longer be ruled out as impossible.

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