crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
political spectrum of the day, they are re-claimed and re-interpreted by participants of institutionalized
and outdoor politics almost two decades after the regimes changed for the better. Instead of “coming to
terms with the past”, one encounters on a daily basis how a fragile version of a past moment is dragged
in, to legitimize or explain an equally frail decision in the ever-changing domestic political space.
The extended moment of the regime changes is worth taking a sharper look, at least because the
much hailed “negotiated transitions” of post-Communist democracies (which with the notable exception
of Romania meant that democracy arrived without serious bloodshed) were not conducive to lasting
social harmony. Sociologists and political scientists followed the trail of the losers of transition in all
countries to explain voter behaviour and soaring indexes of trust in democratic and political institutions.
It is not fashionable anymore to talk about the “transition-consensus” even in academic circles, rather,
– at least in Hungary – the contemporary discourse on public affairs yields to an exploration of whether
such a transition consensus ever existed.
Negotiated transitions are different from revolutions in many ways which cannot be explored here.
Most importantly for present purposes, in post-Communist Europe’s negotiated transitions, “victims”
and “perpetrators” of the outgoing regime sat face-to-face at the roundtable, contemplating together the
foundations of the new regimes. Each side had their fears and expectations influence their negotiating
positions on questions like the manner and timing of general elections, the form and structure of the
new government, the number of seats in various agencies and boards. What was to be decided at the
roundtable, and what was left for afterwards, is also of importance for understanding certain decisions
made by the first democratic governments.
Such crucial strategic decisions and the consequences of unexpected events cannot be analyzed
here. Suffice it to say that as a result of these negotiations, the newly emerging democratic governments
on the one hand, shared the responsibility for the consequences of some of these founding decisions, and
on the other had, were facing all these consequences together with the tasks which had befallen upon
them in the straightjacket of legal and constitutional continuity with their totalitarian predecessors. As
a result of this continuity, the new democracies succeeded not only into gigantic debts and international
organizations, but also into the wrongs and all the injustices perpetrated by their predecessors. As this
paper intends to show, the struggle over inventing memory and the lack of success cannot be properly
understood without properly accounting for this technical nuance.
Phrases like “coming to terms with the past” (“Vergangenheitsbewältigung”) or reconciliation, are
fuzzy terms. By nature they are subject to multiple competing understandings and famously withstand legal
definition. And indeed it is doubtful whether such complex processes of dealing with traumatic past events can
ever be institutionalized – or at least instigated – by legal regulation, e.g. transitional justice measures. For the
purposes of the current paper, this question is all the more interesting since it is by now well established that the
requirements of constitutionalism and the rule of law play controversial roles in transitional justice contexts.
Ruti Teitel’s well-known argument in Transitional Justice accommodates most transitional justice measures in a
rule of law paradigm, claiming that these legal rules amount to a sui generis genre of the rule of law. For Teitel,
in times of transition to democracy, the ordinary institutions and premises of the rule of law do not function. 4
Teitel’s theory was informed by numerous court decisions in which references to the rule of law
and its commandments were abundant. Hungary may pride itself in an early constitutional court decision
where the ‘rule of law ordinary’ was protected in the face of attempts to introduce retroactive criminal
punishment (via lifting the statute of limitations) for crimes which were not prosecuted for political reasons
under the previous regime. 5 The sponsors of the retroactive criminal justice bill argued that the “rule of law
cannot be used to shield injustice”. 6 Invoking the principle of the rule of law enshrined in the Constitution
(Article 2.1), the basic premise of the Constitutional Court’s reasoning was that of the legality of transition
and of constitutional continuity between the previous regime and the emerging democratic system. As a
result the Constitutional Court could not allow for the imposition of retroactive criminal justice measures
even in such cases – with which the new regime cannot be associated in moral terms. 7
4
Ruti Teitel, Transitional Justice, Oxford University Press, Oxford 2000.
5
11/1992 (III. 5.) AB decision. The full title of the Hungarian retroactive criminal justice bill was “On the Prosecutability of Grave Crimes
Committed Between 21 December 1944 and 2 May 1990, Which Were Not Prosecuted for Political Reasons”.
6
On quote in János Kis, “Az első magyar Alkotmánybíróság értelmezési gyakorlata / The first Hungarian Constitutional Court’s
interpretation practice/”, in: Gábor Halmai (ed.), The Constitution Found? The First Nine Years of Constitutional Review on Fundamental
Rights, INDOK, 2000, p. 61.
7
The incident is described in H. Schwartz, The Struggle for Constitutional Justice in Post-communist Europe, The University of Chicago
Press, Chicago 1999, p. 100.
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