crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
A year after the decision of the Hungarian Constitutional Court, the Czech Constitutional Court
approved the constitutionality of the Law on the Illegality of the Communist Regime and Resistance
to It. 8 In addition to lifting the statute of limitations to allow for the prosecution of crimes committed
between 25 February 1948 and 29 December 1989 which for political reasons were not prosecuted
(Article 5), the law denounced the Czech Communist regime as ‘illegal and contemptible’ (Article 2(1))
and declared the Czech Communist Party a criminal organization (Article 2(2)). The Czech constitutional
justices, in their very first decision upheld the law, arguing that there was a discontinuity of values
between the Communist regime and the new regime. According to the Czech justices the ordinary logic
of legal certainty could not be invoked in the case: “/.../ (t)his ‘legal certainty’ of offenders is /.../ a
source of legal uncertainty to citizens (and vice versa). In a contest of these two types of certainty, the
Constitutional Court gives priority to the certainty of civil society, which is in keeping with the idea of
a law-based state.” 9 Upon such considerations, the Czech Constitutional Court decided to uphold the
law on the illegality of the Communist regime.
The rule of law in ordinary courts, however, took the side of the alleged perpetrators, and not of
the victims. Despite the Czech Constitutional Court’s clear stance on legal continuity and moral (value)
discontinuity with the Communist regime, Czech ordinary courts were reluctant to follow this path in
cases where criminal charges against the highest ranking Communist Party and government officers
were presented before them. 10 In 1997 the Superior Court of Prague found that the statute of limitations
has run out and refused to convict Milos Jakes and Josef Lenárt, who were charged with treason for
their role in inviting the Soviet military invasion to suppress the 1968 Prague Spring. 11
Apart from noting that the rule of law did not command a particular resolution (or its opposite), one
will also find that the leaders of the Communist regimes did not usually stand trial, and even the ones
who did, then ended up with convictions for actions which tell little about why the Communist regimes
were so unbearable for so many of their inhabitants. The seemingly never ending prosecutions, in which
old and feeble looking one-time leaders were dragged before courts were not conducive to learning
more about the past and understanding the previous regime better. Demonstrations by sympathizers
supporting the cause of the accused were not unprecedented. The prosecutors and courts of justice of the
new regimes appeared more incompetent, than principled. After all, how much does a prison sentence
for embezzlement in the amount of $24 million from public funds to buy 67 Western cars and 72
apartments for relatives and friends tell about life in Bulgaria under Todor Zhivkov? 12
3. Lustration, file access and truth seeking: reflections on failures
Without doing justice to this most complex segment of literature, it would suffice to repeat that
“coming to terms with the past” and reconciliation cannot be imagined without setting straight at
least the most important components of the historical record heavy with a complex web of systemic
injustice, major traumas and relatively minor invasions of liberty. Thus, when talking about the success
of transitional justice attempts, one needs to reflect on the truth-seeking potential of transitional justice
attempts in post-Communist Central Europe. Before going into detail about achievement in truthseeking,
it is important to point out that criteria of validation differ for lawyers, historians, archivists
8
Act no. 198/1993 (9 July 1993). The full text of the Czech law is available in English in Neil Kritz (ed.), Transitional Justice, How
Emerging Democrats Reckon with Former Regimes. vol. 2, Country Studies, US Institute of Peace Press, Washington DC 1995, p. 366 et
seq.
9
Pl. ÚS.19/93.
10
See Eliska Wagnerowa, “The Effects of the Decisions of the Constitutional Court in Relation to Other Jurisdictions”, at http://www.
concourt.am/hr/ccl/vestnik/2.24-2004/wagnerowa.htm.
11
Milos Jakes was the first (general) secretary of the Czechoslovak Communist Party at the time of the Velvet Revolution of 1989. Jozef
Lenárt carried numerous high positions in the Czechoslovak Communist Party, including that of prime minister between 1963–1968. The
first indictment on Jakes was thrown out in 1995, due to formal shortcomings. On the 1997 proceedings see “Constitution Watch – Czech
Republic”, East European Constitutional Review, Fall 1997. The two officials were acquitted again in 2002 (see RFE/RL Newsline, 24
September 2002), and the Czech government gave up their prosecution for treason in 2003. Yet, in 2003 they both stood as defense
witnesses in the trial of Karel Hoffmann, who was also charged for treason in relation to the events of 1968. See http://www.rferl.org/
newsline/2003/06/3-CEE/cee-030603.asp.
12
Figures from “Ousted Bulgarian Gets 7-Year Term For Embezzlement”, at http://query.nytimes.com/gst/fullpage.html?res=9E0CE2DA1E
3FF936A3575AC0A964958260 (5 September 1992).
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