Dealing with the past:how the judicial approach to constitutional continuity after a regime change may affect the interpretation of the rule of law.
An overview on two Eastern Europe countries: Hungary and Czech Republic.
In every changing of political regime, a Country has to face the problem of how to deal with the former leading forces and constitutional system. Especially if the transition is conducted by peaceful means, like it mostly happened in the transition from the Communist regime to democracy in Central and Eastern Europe Countries. It was not simply possible to wipe out all the remnants of the old system legislation, that, excluding the laws and bodies incompatible with democracy, were to constitute the basis for the new state building.
One of the questions raised was whether was it better to act with some degree of continuity with the past regime, or whether it was wiser to draw a clear line between the old and the new one.
After the fell of the Soviet Union, to the former states members of the communist block succeeded new democratic states, provided with full sovereignty on their territories (with the exception of the German Democratic Republic, which joined the Federal Republic of Germany).
The new democracies appeared to be the natural heirs of the former communist states under international law. Insofar there was some material continuity between those systems, at least. But the necessity of a political discontinuity emerged, more or less strongly, everywhere in the Central and Eastern Europe Countries.
One of the most controversial issue was how to deal with those people who were leading members of the old regimes, now discarded, or who were too closely involved in the cooperation with such regimes.
This question shook the very ground of the new constitutional democratic systems, which assumed the respect of the rule of law as a fundamental principle of democracy. How to pass judgment, even only a political more then a penal one, over people for conducts that they undertook under the previous legal system?
The answer requires the raising of other questions. One of them is surely: in which degree of continuity should the new democratic regimes place themselves with the former communist legal system? (Was it wiser to take in some account the former legislation, and to keep respecting it for the past events, or was it more suitable to apply new standards to the interpretation of the old law?)
2. Main issues raised by transition
All those countries enacted legislation to cleanse their political and administrative bodies from members of the communist parties or organizations, and from people who had been informers of the secret police forces (the so called “lustration” laws). But radical differences emerged for what regards the extent of people involved in the operation, and the effects of the operation itself.
The devices adopted in these cleansing were quasi-judicial or not judicial at all. There was no space for trials held under criminal law, as the behaviors that was subject to scrutiny were not illegal under the law in force at the the time of acting, and it was not possible to render them illegal by means of new legislation, as it would have been a violation of the principle of irretroactivity of the law.
A second issue was the suspension of the statute of limitation for the crimes that were not prosecuted, during the communist regime, due to the political lack of will to prosecute them, and for which the criminal liability terms were already expired. Provisions to re-established the liability for such crimes were enacted too, but in some cases were struck down by the Constitutional Courts.
In this matter the problem was whether prosecuting people for acts that the old law considered illegal, such murder or torture of political opponents, but for which the liability should have already expired, according to the terms provided in that law. The core of the question was if prosecuting these crimes was against the retroactivity of criminal law, a fundamental principle under a democratic state run by the rule of law.
Considering how the former legal system and the new one are bound, or not bound, by a constitutional continuity deeply affects the sort of answers given to such problems.
It is not a binary choice, that of continuity or discontinuity at all, and especially it is not possible to make such choice in abstracto.
Every country that had to undergo in such questions presented different circumstances, that makes it difficult to provide a single, absolutely right, answer. It is possible, however, to examine the concrete solutions applied in a country, and to make some consideration about how the issue of continuity affected these solutions, or how it has been used to shape them.
Two countries may be best representative for this purpose: Czechoslovakia (and Czech Republic afterwards) and Hungary.
These two countries presented different circumstances in the transition, anyway. And such differences surely were not irrelevant in shaping the way in which each of Czechoslovakia and Hungary faced the problems related with the transition. The former had known a severe communist regime, where the political opposition suffered major limitations and violences. The transition itself was quiet rough, then, and it witnessed a rather strong, even if not violent, conflict between the opponents of the old regime who gained the power and the old dominant forces who tried to resist them.
In Hungary the Communism showed somehow a more benevolent face towards opponents, and the transition was developed with the collaboration of the democratic forces and of the old establishment, which managed to keep an active role in the building of the new institutions.
Czechoslovakia is considered to have adopted a harsh model of “lustration”, for the extent of position held under the Communist regime that triggered the mechanism of cleansing, and for the effects of that mechanism, which resulted in the banishment or in the removal from a vast range of public offices and professions for a period of five years. This provision was originally drafted to last for five years. Its validity should have expired in 1996, as it was enacted on the 4th of October of 1991. But subsequent amendments extended that period, up to the 2000 first, and indefinitely later.
In 1993, after the separation from the Slovak Republic, the Czech Republic promulgated a law that constitutes an unicum in the landscape of post communist countries: the “Law on the Lawlessness of the Communist Regime and Resistance to It”. It is the only example of a statute declaring the illegality of regime, and claiming the joint responsibility of all the people who supported it for the crimes that were committed by it. This statute also provided for the suspension of the statute of limitation for criminal offences that took places under the Communist state and were not prosecuted for political reasons.
Hungary adopted in 1996 a more lenient “lustration” law, under the profile of the process of inquiring the suspects, and especially under the effects of the inquiry: who belonged to, or had been an active informer of the old regime security police, was asked to decide whether to resign from his or her position, or to have the informations about him or her revealed to the public.
The Hungarian Parliament also drafted a law (the so called Zeteny-Takacs act of 1991) that lifted the expiration of the limitation periods for the crimes of treason and manslaughter occurred between 1944 and 1990, if they were not prosecuted due to political reasons. But the act was declared unconstitutional by the Constitutional Courts, to which the President had sent the statute after refusing to sign it.
In 1993 new acts were passed by the Parliament, in order to restore the liability for crimes happened under the old regime, and not prosecuted. One of them explicitly stated that the periods of limitation during the years from 1944 to 1989 should have not been counted as validly run. But both of them were equally struck down by the Constitutional Court.
Finally an other statute was created to declare that the events happened during the 1956 Revolution were to be considered as war crimes and crimes against humanity. These were crimes under international law, and therefore did not have a limitation period. So they were still submittable to judgment by trial. This law was partially upheld as constitutional.