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This volume considers the important and timely question of criminal justice as a method of addressing state violence committed by non-democratic regimes. The book's main objectives concern a fresh, contemporary, and critical analysis of transitional criminal justice as a concept and its related measures, beginning with the initiatives that have been put in place with the fall of the Communist regimes in Europe in 1989.The project argues for rethinking and revisiting filters that scholars use to interpret main issues of transitional criminal justice, such as: the relationship between judicial accountability, democratisation and politics in transitional societies; the role of successor trials in rewriting history; the interaction between domestic and international actors and specific initiatives in shaping transitional justice; and the paradox of time in enhancing accountability for human rights violations. In order to accomplish this, the volume considers cases of domestic accountability in the post-1989 era, from different geographical areas, such as Europe, Asia and Africa, in relation to key events from various periods of time. In this way the approach, which investigates space and time-lines in key examples, also takes into account a longitudinal study of transitional criminal justice itself. About the book'Transitional justice nowadays is an industry which produces hundreds of texts each year and it is difficult to turn our attention to an intellectual product. This book is well-balanced and will find recognition in readers and students of transitional justice, as well as researchers on social transformation. It is a collection in the best tradition of socio-legal research. The book is recommended for two reasons: its serious treatment of criminal justice as a part of transitional justice, and its approach, which locates the problem of transitional justice in post-communist Europe in a broader, comparative context.' Prof. Dr. Adam Czarnota, Scientific Director of the International Institute for the Sociology of Law, O�ati, Spain'By carefully considering how criminal justice relates to democratization, collective memory, internationalist concerns, and the passage of time since violations occurred, this volume contributes importantly to the evolving transitional justice literature. The questions it raises are timely and theoretically grounded, and the choice of cases diverse and illuminating. Its authors richly contextualize their examinations, complementing recent broad comparative studies that explore large numbers of cases with little detail. This in-depth study critically advances our understanding of the challenges of justice on the fraught terrain of transitioning societies.' Nadya Nedelsky, Associate Professor and Chair, International Studies, Macalester College, Saint Paul, MN.'A collection of provocative, thoughtful and superbly documented contributions to our understanding of the dilemmas of transitional justice in post-dictatorial societies. The authors argue that democratic communities cannot function properly if they do not address past crimes and abuses. Genuine reconciliation cannot take place if memory and justice are ignored and denied. With its insightful comparative perspective, this book is highly recommended to all those who care about the relationship between human rights and democracy.' Vladimir Tismaneanu, University of Maryland (College Park)
This chapter considers the criminal prosecution of Communist crimes in Poland. It specifically focuses on one of the most contentious issues in this area, namely cases concerning the maladministration of justice by judicial officials during Communist rule (1944-1989). The maladministration of justice refers to the misuse of the legal system in a manner that results in wrongful convictions, or miscarriages of justice. In other words, it concerns those who have been arrested on criminal charges, who have either pleaded guilty to the charges or have been found guilty, and who, notwithstanding their guilty plea or verdict, are actually innocent. This is sometimes discussed as judicial murder or court crime. The present assessment adds a much-needed dimension to the area of transitional criminal justice, in which the judiciary is an oft-neglected area. The discussion begins by outlining the theoretical framework into which key questions can be set. It then provides an overview of two periods, the Stalinist era (1944-1956) and martial law (1981-1983). These two periods are excellent examples of times in which judicial officials were involved in the maladministration of justice and have been the focus of relevant legislation seeking to redress documented injustices. My investigation identifies common themes with similar and opposite aims in which the judiciary was manipulated and controlled by the Polish authorities during the selected periods. The chapter concludes by critically analysing the measures undertaken in post-Communist Poland in order to redress such injustices.
THEORETICAL FRAMEWORK
As noted in the Introduction to this volume, within the context of transitional criminal justice, prosecution and punishment are seen as necessary and desirable mainly for moral, legal and institutional reasons. According to Skaar:
‘[P]unishment creates accountability, restores justice and dignity to the victims of abuse, establishes a clear break with past regimes, demonstrates respect for democratic institutions (particularly the judiciary), re-establishes the rule of law, contributes to reconciliation, and helps ensure that similar atrocities will never happen again.’
Skaar goes on to identify four reasons for focusing on courts in transitional justice cases. First, the court is the ideal forum for hearing cases of human rights violations, in terms of its venue (open and impartial) and its goal of ensuring rights’ protection. Secondly, we can identify the key legal and political actors involved in the process.
By
Agata Fijalkowski, Senior Lecturer in Law at Lancaster University Law School, United Kingdom.,
Raluca Grosescu, Associate Research Fellow in the Department of History at the University of Exeter.
This volume critically considers the manner in which post-dictatorial and post-conflict states are addressing past human rights violations through judicial accountability. The book's main objectives concern a fresh, contemporary, and critical analysis of transitional criminal justice as a concept and its related measures, beginning with the initiatives that have been put in place with the fall of the Communist regimes in Europe in 1989. By transitional criminal justice we understand mechanisms of judicial accountability carried out in post-dictatorial or post-conflict states in order to address past human rights abuses. In addition to trials, the concept also refers to cases where criminal law mediates other measures of accountability. The project argues for rethinking and revisiting filters that scholars use to interpret key issues of transitional criminal justice, such as: (1) the relationship between judicial accountability, democratisation and politics in transitional societies; (2) the role of successor trials in rewriting history; (3) the interaction between domestic and international actors and norms in shaping transitional justice; and (4) the paradox of time in enhancing accountability. In order to accomplish this, the volume considers cases of domestic accountability in the post-1989 era, from different geographical areas, such as Europe, Asia and Africa, in relation to key events from various periods of time. In this way the approach, which investigates space and time-lines in key examples, also takes into account a longitudinal study of transitional criminal justice itself.
GENERAL OVERVIEW
Judicial accountability for human rights violations was at the core of transitional justice debates in the first two decades that followed the end of WWII. The Nuremberg and Tokyo trials, as well as the activity of domestic courts in charge with the conviction of crimes against humanity and war crimes committed by the Axis countries, have been the subject of an impressive amount of scholarship. In the aftermath of WWII, criminal trials appeared to be for many researchers the most efficient instrument of transitional justice. However, with the democratisation processes that followed in the 1970s, 1980s and 1990s in Southern Europe, Latin America and Eastern Europe, truth or historical commissions, lustration or disclosure of former political police agents took the lead as instruments of reckoning with the dictatorial past. Criminal trials continued to play a certain role in transitional justice, but in many cases their scope was narrower than the scope of administrative justice, at least as regards domestic accountability.
'There has for a very long time been a strong feeling against making legislation, and particularly criminal legislation, retrospective […] I use retrospective in the sense of authorising people being punished for what they did before the Act came into force'.
'Writing the recent history of the Central and Eastern part of Europe is unlike the work of the Western historian, who can turn to published sources, contemporary reports, memoirs by participants and eyewitnesses, whose work is embedded in solid, mostly normalized and consolidated public memory. Usually it is not the historian who is the messenger there, unlike the less fortunate part of the world, where the message is, more often than not, bad news. The recent history of Central and Eastern Europe is the history of bad times'.
This chapter examines the similarities and differences of the legal discourses on the prohibition of retroactive laws within the European human rights framework. It also considers the significance of the notion of retrospective justice in the post-dictatorial period (post-1989) in Europe, and more specifically in Germany and Poland. It begins by setting out key legal definitions in national and regional legal frameworks in order to determine what underpins the prohibition on retroactive laws. An examination of key German, Polish and European jurisprudence reveals that the legal narratives on retrospective justice run parallel and in opposite directions, revealing cracks in consensual histories that bring historical sensibility and issues into sharp relief. Retrospective justice in post-Communist Europe contributes a defined set of problems to the field of transitional justice, beginning with the challenges posed by statutes of limitations and ending with unfinished narratives on select chapters of Communist histories.
RESEARCH QUESTION
This chapter examines the similarities and differences in the legal discourses on the prohibition of retroactive laws within the European human rights framework. It also considers the significance of the notion of retrospective justice in the post-dictatorial period (post-1989) in Europe, and more specifically in Germany and Poland. From a common law perspective, for example, the idea of punishing people for an act that was not a crime at the time of commission is regarded as loathsome.
This paper examines the criminalisation of symbols of the past. It considers the 2011 judgment of the Polish Constitutional Tribunal. In this compact and well-ordered decision, the Tribunal, with reference to key European examples, assessed critically the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past pertaining to fascist, Communist or other totalitarian content. Its ruling, which found amendments to the law in Poland that tightened up restrictions on the use of totalitarian symbols to be unconstitutional, is considered within three important contexts: first, the broad European context, where the concept of totalitarian crimes has become subject to EU human rights legislation relating to the freedom of expression; second, the context of post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, the context of transitional justice, where criminalising symbols of the past has become a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. The paper discusses the two case-studies most relevant to Poland, namely those in Germany and Hungary. Reference is also made to the Baltic States, which, together with Poland, have made a concerted effort to bring the notion of totalitarian crimes and histories to the attention of Europe. The paper concurs with the contention that cases concerning the use of symbols provide an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal and philosophical complexities of criminal uses of symbolism, the political realities, and the key dimension of transitional justice and its relationship to expression, law and memory.
This article examines the case against the Polish resistance fighter August Emil Fieldorf and his subsequent trial. Judicial officials within, or working intimately with, the Soviet secret police made decisions affecting many lives in Poland in 1944-1956. A consideration of the trial proceedings and the backgrounds of selected judicial officials provide a better understanding of the nature of Stalinist justice. Key issues underpinning the trial, related to political contexts, legal maneuverings, and broader considerations surrounding the defendant through the eyes of his persecutors, shed light on the hidden mechanism of Stalinist justice in operation and what constitutes a judicial crime. While its focus is Fieldorf, this article argues that the Polish case study can be instructive in analyzing the ways in which the law was used as a political weapon in other states and regions with similar experiences of totalitarian rule.
As Europe moves in the direction of absolute abolitionism, it is easy to miss the fact that these developments are fraught with tensions. The European policy on the abolition of the death penalty has come to be presented, above all, as a human rights issue. The drafting of the European Convention on Human Rights, key judgments of the European Court of Human Rights, and initiatives of the Council of Europe contribute to this policy. In 1989, this European policy was reinvigorated with the prospect of European enlargement and new members to the Council of Europe. Comprising key mechanisms to facilitate implementation, the policy reflects a uniform approach to the death penalty, one that is particularly European. ‘New’ European states, although pleased to be back in the fold of Europe, have expressed problems with this policy, and some proactively support a pro-death penalty stance that is largely ignored by the Council of Europe and European Union (EU) member states.
This chapter critically examines these European transformations. It is organized in the following way. The chapter first sets out European policy on the abolition of the death penalty, providing a general survey of its mechanisms and procedures. Western European states have traditionally been afforded a margin of appreciation on certain human rights issues. This also applied to the imposition of the capital sentence. The position on the death penalty has reflected a certain unity on the matter.
