PROSECUTING HISTORY POLITICAL JUSTICE IN POST-COMMUNIST EASTERN EUROPE Aurora Voiculescu Thesis submitted for the degree of Doctor in Philosophy Department of Law LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE UNIVERSITY OF LONDON May 1999 1 UMI Number: U127112 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U127112 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 British, Library, of ^oUtJcal and Economic Science To Torben and Stefan Remarking upon injustice is like having an eye gouged out, looking away is losing both eyes. Russian proverb We can readily find both states and scholars who accept the differentiation o f State Responsibility and yet reject the concept o f Crimes o f State. Joseph H. H. Weiler, “On Prophets and Judges” 3 ACKNOWLEDGEMENTS I extend my gratitude and respect to my supervisor, Prof. Gunther Teubner, for the freedom of thought which he encouraged, and without whose support this thesis would not have been written. For the financial support at different stages of my research I would like to thank London School of Economics, the Overseas Research Students Awards Scheme, the European University Institute, as well as the Soros Foundation who contributed financially to the writing of this thesis through the Research Support Scheme. For reasons going beyond the direct needs of this thesis, yet for an invaluable contribution to it, I would like to say a very warm thanks to Prof. Claire Wallace, Prof. Steven Lukes, Prof. Antonio Cassesse, and Dr. Curtis Doebbler. It is also with deep gratitude that I think of the late Prof. Ernest Gellner who so kindly supported me during my studies at the Central European University and after. They all have given me particularly valuable support at crucial times during my postgraduate studies. I also thank warmly Claire Mayer whose devoted friendship and editing skills have made my work much easier, and Tim Byme who gave me his kind support in the very first stage of this thesis. I owe a debt of gratitude to my family who has been understanding and supportive throughout my research, to my parents Maria and Alexandru, and to my sister Gratzia, as well as to Bodil and Mariana. Their help was invaluable. My warmest thoughts also go to my late grandfather loan who has always inspired and encouraged me. Finally, and especially, I thank my husband Torben for his love and support, and my son Stefan for all the joy he brings. 4 ABSTRACT Fifty years after the Nuremberg trials, Europe is challenged once again with a question: Who is responsible for state-sponsored violations of human rights? This time, those put on trial or ostracised from power are elements of the Communist structures of control. Some observers have criticised these measures of political justice, comparing them to a ‘witch hunt,’ and accusing the courts and legislature of often engendering an unjustifiable collective guilt. In contrast, others have claimed that not enough is being done; that the people of Eastern Europe “have asked for justice, and got the rule of law.” In this thesis, the author proposes an assessment of the process of political justice taking place in post-Communist Eastern Europe. The approach taken is from the perspective of the role played in this process by the concept of collective responsibility of political organisations for violations of human rights. While concentrating on the way collective responsibility appears in the criminal law measures taken in Hungary, and in the administrative procedures of screening used in the Czech Republic, the thesis also aims to offer a comprehensive picture of the general debate on accountability for past human rights violations which takes place in post-Communist Eastern Europe. The thesis underlines the complexity of the political reality in which the expectations for accountability for state-sponsored violations of human rights are answered. It also emphasises the importance for this answer to acknowledge the nature of the Communist regime, and of its representative structure known under the name of Nomenklatura. Based on these elements, the author argues for the necessity of combining individual and collective responsibility for human rights violations. A reconstructed concept of collective agency and collective responsibility appears to be the solution to the inconsistencies otherwise manifested in a process of political justice. Such concepts, the author argues, should allow for the acknowledgement - through commissions of truth, as well as through prosecution and screening - of the role played by the Communist structure of power in the violations of human rights which took place under its regime. 5 CONTENTS Chapter One: COLLECTIVE RESPONSIBILITY AS A DIMENSION OF POLITICAL JUSTICE .............................................................. 9 1.1 The “Alternative” Fuller Never Wrote A bout.............................................9 1.2 The Definition and Terminology of Political Justice ................................. 16 1.2.1 The Definition of Political Justice ............................................................. 16 1.2.2 The Terminology of Justice .......................................................................24 1.3 Approaches to Political Justice in Eastern Europe .........................................27 1.3.1 The Case for Prosecutions .........................................................................29 1.3.2 The Case Against Prosecutions ................................................................. 31 1.3.3 Screening and Cleansing ................................................................................. 34 1.3.4 Procedural Concerns ....................................................................................... 36 1.4 The Object of Political Justice ...................................................................42 1.5 The Right to Revolution ............................................................................. 47 1.6 Preliminary Conclusions ................................................................................. 56 Chapter Two: ON PROSECUTING: POLITICAL JUSTICE THROUGH CRIMINAL LAW MEASURES........................................................ 59 2.1 Introducing Case Studies to Political Justice ................................................... 59 2.2 The Criminal Law Approach to Political Justice in Hungary: Historical Background.................................................................................... 61 2.2.1 Amending the Statute of Limitations: Context and Content of the Zetenyi-Takacs Law.............................................................................. 66 2.2.2 The Constitutional Court Decision on the Zetenyi-Takacs L a w .....................75 2.2.3 Legal Security v. “Exceptional Circumstances” .............................................82 2.2.4 Formal v. Substantive in the Constitutional Discourse ...................................86 2.2.5 The Law No. 53/1993 on the Statute of Limitations: Context and Content ...................................................................................... 91 2.2.6 The Revolution of the Rule of Law: The Constitutional Court’s Decision on the Law No. 53/1993 .................................................. 96 2.2.7 Collective Political Agency and Responsibility............................................. 106 2.3 Formal v. Substantive: Aspects of the German Border Guards Trials 112 2.4 Preliminary Conclusions ............................................................................... 121 6 Chapter Three: ON SCREENING: POLITICAL JUSTICE THROUGH ADMINISTRATIVE PROCEDURES AND NON-CRIMINAL LAW 124 3.1 The Non-Criminal Law Approach to Political Justice in the Czech Republic: Historical Background ................................................ 124 3.2 The Czechoslovak Revolution: From Velvet to the Shirt of Penitence .... 127 3.3 The Use and Abuse of Secret Police Files in the Process of Political Justice .......................................................................137 3.4 The Screening Process in Post-Communist Czechoslovakia ........................150 3.4.1 The First Round of Screening in Czechoslovakia ........................................150 3.4.2 The Second Round of Screening in Czechoslovakia ....................................155 3.4.3 The Helsinki Proposal ..................................................................................161 3.4.4 The Lustration Law: The Main Provisions ..................................................164 3.4.5 Procedural Aspects of the Lustration Law ....................................................169 3.4.6 Punishing and Discriminating: In Search of a Rationale ..............................171 3.4.7 The Constitutional Court Decision on the Lustration L a w ..........................184 3.5 The Czech Act on the Illegality of the Communist Regime ........................190 3.6 Preliminary Conclusions..............................................................................195