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.
3. Analyses of the decisions of the Courts
Both Czechoslovakian (and Czech) and Hungarian legislations were claimed to be inconsistent with the respective Constitutions, and were thus examined by the two Constitutional Courts.
But the outcoming decisions could have hardly been more different.
The Czechoslovakian Court upheld the 1991 “lustration” law as constitutional, but for one provision (that included even mere candidates to be secret informer in the range of application of the law). The decision was laid on two main grounds. First of all the Court argued that a State has the right to defend itself from the danger that could come by letting in place those people who were committed with the previous regime, and might be not loyal to the new one. Besides it would be unfair to let those people retain positions and privileges they obtained only for having been members or supporters of the Communist Party.
The second point was that provisions like those at judgment, which applied to a very vast range of professions, were justified by the current circumstances: the occurring transition from Communism to democracy required special measures to face the special issues that the transition itself raised.
The later Constitutional Court of Czech Republic upheld the amendments that extended the validity of the law, on the basis that even if the extraordinary circumstances were elapsed, the State still had the right to protect itself.
The decision of the Czechoslovakian Court, focusing on the necessity of special protection for the new democracy due its frailty in the first years after the transition, stresses the idea of a need for a total discontinuity between the two regimes. The fact that a new constitutional system took place, and that the old Communist Party no longer existed was not enough for the protection of democracy. The State had to be cleansed of those people who might be tempted to act to restore the old power or simply might not share the values of democracy.
Even if the sentence does not consider explicitly this point of view, it may be said the the Court approved the idea, embedded in the law, that the changed constitutional system required the discontinuity of the people holding key positions in State administrations.
The Hungarian Court acted a different role in the shaping of the “lustration” legislation. The first law, in 1994, provided for the inquiry of people holding certain roles in the public administrations, to be conducted by ad hoc panels, to discover which of them had been a collaborator of the old secret service or had been a member of the Arrow Cross Party. Those who happened to be recognized as having played these role could avoid the publication of this information by resigning from their job, but were free to keep it as there was no further sanction.
Notwithstanding this “light” features, the law was challenged before the Constitutional Court and dismissed as partially unconstitutional.
The Hungarian Court stated the opposite than what the Czechoslovakian did. It declared that, as the transition had already took place, there was no need of special protection for the democratic system. Thus it was not possible to act as to comply with extraordinary circumstances, and the law had to be consistent with the normal democratic principles. A “lustration” was still possible for people who held very critical position in the state organization, but only as emerged from the balancing of two rights: the general right to the revealing of informations of public interest on one side, and the right of self determination and privacy on the other.
So it was possible to conduct a certain screening among public persons, but it was necessary to allow every citizen to check his own files, and to provide protections for the personal data of the people who were spied (and the statute did not comply with this right, that concerned people’s right to privacy and self-determination).
The Court also stated some remarks about the too vast range of positions involved in the scrutiny.
The Parliament enacted a new law in 1996 that took account of the Court’s suggestions.
The Hungarian Court refused to apply the special circumstances theory in its examination of the law, because it stated that the transition was already over. Whatever discontinuity had there been between the Communist regime and democracy, that passage was in the past and no longer relevant. Where the Czechoslovakian Court used the “special times – special measures” rationale to upheld much stricter provisions, and even as a mean to promote some kind of material justice over the past happenings, the Hungarian Court kept a close observance of the “normal” democratic standards, showing its favor for the respect of the rule of law even in its formal aspects. We must recognize, however, that the Hungarian law was enacted some years later the fell of Communism, thus a need for protection of the democratic state was probably felt less compelling, whereas the Czechoslovakian rules were passed just in the immediate times after the transition. It is true that the Czech Constitutional Court upheld even the amendments that rendered those rules perennial, but the Court only had to stick to the precedent of the former Czechoslovakian Court.
As for the statute of limitation issue, the Czech Law on the Lawlessness of the Communist Regime and Resistance to It was challenged as well before the Constitutional Court .
The petitioners argued that the provisions contained in the Prologue and in the first part of the statute, that deemed the whole Communist regime during the years 1948 – 1989 as illegal, and declared the people who supported that regime responsible for the crimes committed by it, was unconstitutional, due to the following reasons. First of all a statute establishing by force of law that an entire historical period in a given country was illegal would have restricted further academic and historical investigations of that period, and thus would infringe the right of free research and the right of expression of personal opinions, which could be treated as illegal if departing from the statutory imposed vision of history.
Secondly it established a collective responsibility, and that was against the principle of personal liability in the criminal law.
Lastly the petitioners argued that the Czechoslovakian Republic (and then the successive Czech Republic) was the heir of the former Czechoslovakian Communist state: there had been a formal and substantial continuity between those two entities, in both domestic and international legislation. So it was not possible to claim the old Communist State as illegal at all.
At the same way, suspending the statute of limitation would have been against the respect of rule of law, which was one of the fundamental principles of the Czech Constitution, and that reviving criminal liabilities that had already expired would have infringed their personal rights and the certainty of law.
The Court rejected the first argument saying that the statute only provided a moral and political, rather then juridical, sentence about the Communist regime. It was a declaratory statement concerning the political will of the Parliament to consider the past events as unlawful and to act consequently. Thus it was an act of freedom of speech held by statutory means, and there was no reason to limit the right of free opinion and speech of the Parliament to non statutory acts. Besides it did not provide any sanction for the violation of this provision, reinforcing the view of its merely declaratory nature. So it did not restrain other people’s right of speech or research.
For the same reason it was not a mean to establish a joint criminal liability for past members or supporters of the Communist Party, because it did not provide any sanctions for those persons. It was only a mean to introduce a reflection on individual political responsibilities.
The reasoning of the Court became more sharp and complicate in the rejection of the third argument. The Court admitted that a formal continuity had took place, as the former legislation was receipted and the international obligations pending over the old state were assumed by the new one. But declared that legal continuity did not imply a continuity in values. The new Constitution was not neutral to values, and it required the application of the democratic values in the interpretation of the law. Thus the rule of law, the principle of legality, could not be intended as merely formal legality, it did not bind to the literal interpretation of the law; it was necessary to take account of the substantive purposes of the law as well.
Besides the Court argued that a democratic state was based on the principle of legitimacy, that means that to be legitimate a democracy had to be sustained by the majority of the population. As the Communist regime did not encounter the favor of the majority of the population, it was not legitimate. So the old legislation could not be considered as legitimate only because it already existed as positive law: legality was not a substitute for legitimacy.
For these reasons the Court refused to define the law as unconstitutional.
In relation to the part of the statute that suspended the statute of limitation, the petitioners founded their arguments mainly on the ground of legal certainty, stating that people whose liabilities were already expired could not see them revived. It was not their fault if they were not correctly prosecuted, and it was unfair to place on their shoulders the responsibilities of others, namely the old regime who did not do its job well.
The Court answered that, even if within the old regime legislation there were provisions proclaiming the respect of legality, the total unlawfulness of that regime made them dead letter. All State powers were run by the Party, and according its own, unwritten, rules, thus the positive law was completely disregarded. In such a situation there was no possible legal certainty. Those who committed criminal acts with a political motive were not relaying on the expiration of their liability within a certain period, they were relaying on the failure of the formal legal system of that time in punishing them. So it was not unfair to punish them, after having re-established a constitutional system truly respectful of the rule of law. Saying it with the words of the Court “it would be an infringement of the continuity of written law, if the violations of the law which were committed under the protection of the state could not be even now criminally prosecuted” . In this case the Court appealed directly to the formal continuity of law rationale.
The Court went further in its reasoning, arguing that the statute did not establish any new type of offence, other then those already provided in the old law, nor extended the original limitation period, that still remained of twenty years. Beside the criminal law stated that if due to the absence of the convicted person or due to legal impediment a regular trial could not have been held, the limitation period for a crime was suspended until the removal of these impediments. And that was exactly what happened during the Communism: some crimes were not submitted to regular trials due to the incapacity of the legal system to act consistently with its own provisions, and this incapacity was determined by the political will that held the power in those days. So there had been effective legal impediment. Thus the statute did not revive the liabilities for those crimes, because the limitation periods had not run properly. In this sense the statute was a declaratory provision, more then a constitutive one.
Finally the statute of limitation was not part of the procedural law, and not of the substantive criminal law. So the irretroactivity of the criminal law could not be claimed in such case.
As said before, the Hungarian so called Zetenyi – Takacs Act of 1991 stated that the limitation periods for crimes of treason and manslaughter, that were not prosecuted for political reason during the years from 1944 to 1990, were to be considered as not run. The law was similar to the Czech law, but it had a narrower field of application, as it referred only to the two nominated crimes.
The Court in its reasoning invoked the respect of the rule of law rationale, arguing that in a constitutional state the law had to comply with the text of the Constitution and with the values that the Constitution itself carried.
This premise seemed to resemble in some way the premise made by the Czech Court about the need of applying the law under the light of the constitutional values. But the outcome was utterly different: the Hungarian Court declared that the transition between the Communist regime and the democracy had took place under the basis of legality. So there was no reason to distinguish between laws enacted before or after the Constitution, nor to apply different standards in their interpretation. Thus the Court found the provision under examination not consistent with the principle of legal certainty, which was a corollary of the principle of the rule of law entrenched in the Constitution (a corollary that the Court itself had deduced from the constitutional text).
Besides the “political reasons” recalled in the statute as a requisite for the suspending effect taking place were too vague, to provide a sufficient clearness in the prediction of the application of the law.
Subsequent parliamentary acts on the same matter, an authoritative resolution and a modification of the Criminal Procedure Law, were equally challenged in front of the Court and declared unconstitutional .
Finally, in 1993, the legislature enacted a law with a narrower purpose, stating that war crimes and crimes against humanity were crimes under international law, and thus were not subject to statute of limitation.
With regards to this act the Court kept the general principle that extending the statutes of limitations was forbidden. But it recognized two exceptions, when there had not been a statute of limitations provision at the time the crime was committed, and when the crime was covered by international law, being a war crime or a crime against humanity. As Hungary was bound to the respect of international law by article 7 of the Constitution, and had signed the New York Convention, which did not provide for limitation periods for war crimes or crimes against humanity, it was possible to prosecute such crimes.
The Court only asked the Parliament to conform the statute to th international law notions of those crimes.
The Hungarian Constitutional Courts then kept a strict observance of formal legality; the only exception allowed was anyway based on the ground of legality, in that case on the ground of respecting international law as imposed by the Constitution.