Abstract
This chapter offers an overview of the difficulties of conceptualising measures transforming property adopted by the post-communist Central East European governments, accordingly to a transitional justice framework. The study of the brutal terror accompanying the communist takeover and the Stalinist period in the region indicates that relatively strong retributive measures would be in order, post 1989, to obtain reckoning with the communist past and some sort of closure with this past. Yet, as I argue in this chapter, the Central and Eastern European post-communist ‘transitional’ responses to the wrongs of the communist era mostly appear as unrelated to the historical record of communism in the region. This particularity could be understood in the wider historical context of the communist era in Central Eastern Europe, where great human rights abuses characterised an earlier (Stalinist) phase of communist regimes in CEE, and the brutality characteristic of this early phase was greatly relaxed afterwards. The historical background shows that during its existence, the Real Existing Socialism in Eastern Europe allowed for great social advancement, most evident for citizens from previously marginalised or under-privileged social backgrounds, on a scale not encountered in the recent histories of the CEE countries. This mixed historical record allows us to arrive at an understanding of why the transitional post-communist CEE political agenda was not centered on retributive justice. It also allows us to see why the post-communist CEE political parties preferred the adoption of distributive justice measures, such as those transforming the communist property into private property. However, if closure is an important goal for transitional justice the analysis provided in this chapter shows that little ‘closure’ was obtained in post-communist CEE after the application of measures aiming to change property regimes. Thus, even if the dominance of such measures in post-communist CEE ‘transitions’ could be understood in the light of the historical record, the measures applied in CEE defy an easy explanation under the transitional justice framework and do not accomplish one of the important goals of transitional justice. Therefore, the theorisation of such measures could not be sought in the transitional justice framework usually provided in the scholarship.
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Notes
- 1.
Hobsbawm (1995).
- 2.
Ibid, 348.
- 3.
- 4.
Accordingly to Huntington: “The transitions to democracy between 1974 and 1989 are the subject of this book.” Huntington (1991, 5). The earlier such waves, accordingly to Huntington, were a first a long wave of democratisation between 1828 and 1926, followed by a first reverse wave between 1922 and 1942; a second short wave of democratisation between 1943–62, followed by a second reverse wave between 1958–75. Huntington (1991, 15).
- 5.
- 6.
Arthur, ibid.
- 7.
Arthur, ibid, 322–326.
- 8.
Ibid, 326–334. Evidently that even existence of a conceptually distinct field of scholarly inquiry which could be labeled ‘transitional justice’ does not go without contestation, or without calls for clarification of the field’s boundaries, in the scholarship. See e.g. Posner and Vermeule (2003), Bell (2009), Leebaw (2008).
- 9.
Arthur, ibid.
- 10.
See e.g. Outhwaite and Ray (2005), for a description of the impulses given by the demise of communism to social theory.
- 11.
The transitional period of these countries was arguably dominated by measures which aimed at transforming the communist arrangements of property, and not by retributive measures against former agents of the demised communist regimes.
- 12.
See e.g. infra, text to n 58–86 in ch 4, for a brief discussion of the differences between restitution and privatisation.
- 13.
For one of the rare authors who attempts to theorise privatisation but not from a transitional justice perspective see Engerer (2001).
- 14.
Infra, text to n 58–86 in ch 4, for a more detailed discussion on the confusion between restitution and privatisation.
- 15.
Marin Preda, one of the major Romanian novelists of the twentieth century, coined the metaphor of ‘accelerated history’ of the twentieth century in the region. He described this ‘acceleration’ of history in a novel related to the life of a family of peasants in a Romanian village during the fascist and communist times, Morometii, as a period in which ‘the time did not have patience’ with the people, and new and brutal political regimes completely destroyed the ways in which the people dealt with themselves, their neighbors, their families and their lives. Preda (1975).
- 16.
As it was not without any trouble, or without ideological experiment.
- 17.
For most of the nineteenth century, almost all the states of the region, with the exception of portions of Romania, Poland, Serbia, or Hungary, were actually parts of the Austrian, Ottoman or Russian empires. These European empires are generally seen in the historical literature as the most backwards of Europe. See e.g. Kennedy (1987). On the backwardness of ‘Eastern Europe’ in a longer historical perspective, see e.g. Chirot (1989) and Hodos (1999).
- 18.
- 19.
First time after 1918; the second after WWII; and the third time after 1989. For the inter-war period see Seton-Watson (1945), Rothschild (1974), Berend (1998). For more recent general scholarship on the period and region see e.g. Robert Bideleux and Ian Jeffries, ‘From National Self-Determination to Fascism and the Holocaust: The Balkans and East Central Europe 1918–1945,’ in Bideleux and Jeffries (2007, 319–455).
- 20.
I refer here principally to the aftermath of the WWII, when the implosion of the Nazi Germany made possible the reckoning with the immediate past represented by the pre-war and the war years.
- 21.
- 22.
The basic position of the post-communist elites on such matters: ‘we were victims, not only of the Nazis, but also of the communists,’ is well described by Cotler (1998). For a comprehensive general survey of the historical scholarship in the post-communist CEE and its central themes, see e.g. Antohi et al. (2007).
- 23.
This was in particular the position of the post 1989 Czechoslovak government with respect to restitution policies, although the issue played a significant role in the Polish post 1989 restitution talks. For a more detailed discussion on the Czechoslovak, Hungarian and Polish ‘restitution’ policies, see e.g. Pogány (1997, 150–181).
- 24.
- 25.
When not directly a revisionism of this past. On this point, see e.g. Kopeček (2008).
- 26.
- 27.
For such an argument in the context of Czechoslovak lustration law see Siklova (1996).
- 28.
With the exception of Yugoslavia and Czechoslovakia, in no other country of the region was a communist party able to represent a sizable force on the political scene of the respective country at the end of the Second World War.
- 29.
See Djilas (1962, 114), for Stalin’s idea that ‘whoever occupies a territory imposes his own social system as far as his army could reach.’ In the more recent scholarship the installation of Soviet regimes in Eastern Europe is also seen as an opportunistic seizure of the possibilities offered by the moment. See e.g. Leffler (1996) and Pons (2011).
- 30.
Such as trade unions, woman and youth organisations, and friendship societies with the Soviet Union.
- 31.
Respectively the internal affairs, justice, state security, or defense. For an account of this tactic, see e.g. Karel Bartošek, ‘Central and Eastern Europe,’ in Courtois (1999, 398).
- 32.
- 33.
In Poland, the Marshal of the Soviet Union, Konstanty Rokossowki was officially installed in November 1949 as Vice-Premier, Minister of Defense and member of the Political Bureau. For an account and background of the inter communists fractions struggles see Davies (2005, 434).
- 34.
For the difficulties encountered in the study of the history of the GRU even after the opening of the Kremlin’s archives, see e.g. Leonard (1992). Also, Andrzej Paczkowski, ‘Poland, the “Enemy Nation” in Courtois (1999, 375), for an example of the ideas of secrecy and classification in a Polish context, and Naimark et al. (1995), for an account of the numerous problems faced by ex-communist countries’ archives in this regard.
- 35.
- 36.
See e.g. Gatrell and Baron (2009). For the point that the Soviet Union was the first Allied power to replicate before the end of the Second World War the bureaucratic model of resettlement of populations used after the Balkan wars and the First World War, see e.g. Matthew Frank, ‘Reconstructing the Nation-State: Population Transfer in Central and Eastern Europe, 1944–8,’ in Reinisch and White (2011, 30).
- 37.
Judt, ‘The Past is Another Country’ in Deák et al. (2000, 297). Judt, for example puts the figure of the ethnic Germans deported from these territories at ‘some 15 million …: 7 million from Silesia, Pomerania and East Prussia; 3 million from Czechoslovakia; nearly 2 million from Poland and USSR; and a further 2 million from Yugoslavia, Romania and Hungary.’ Deák et al. (2000, 297).
- 38.
These deportations raise numerous challenges for our perspectives on such international law notions as ‘crimes against humanity’ or ‘genocide.’ For an account of such challenges, raised by the so called Benes decrees in Czechoslovakia, see e.g. Waters (2006).
- 39.
Because often the representatives of the anti-communist parties were labeled as Nazi collaborators, the purge against pure Nazi agents and collaborationists was associated in the public mind with the communist tactics. Deák et al. (2000).
- 40.
From the 1949s so called ‘Titoist deviation’ onward up to the death of Stalin and the of the subsequent power struggle in the Soviet leadership.
- 41.
- 42.
The syncretism was observed even in the allegedly coherent model, the soviet law, characterised as Romano-Germanic, in the manner in which it conceptualises law, Greco-Hobbesian in its ideology, quasi-religious in its goals and underlying purposes, and Russian in spirit by some authors (see e.g. Osakwe 1985, 7–8). In regards to ideological affinities, see also Chamberlin (1958, 251).
- 43.
Karel Bartošek, ‘Central and Eastern Europe,’ in Courtois (1999, 395).
- 44.
Karsai, ‘The People’s Court and Revolutionary Justice in Hungary, 1945–1946,’ in Deák et al. (2000, 233).
- 45.
Ibid.
- 46.
Ibid.
- 47.
Bartošek, ‘Central and Eastern Europe,’ in Courtois (1999).
- 48.
- 49.
Pitesti is a town approximately 110 km south west from the Romanian capital, Bucharest, where in the 1950s, it took place one of the most barbaric brainwashing, ‘reeducation’ experiment in communist Europe, worst in some aspects than those practiced by communists on a larger scale in Asia. The ‘experiment,’ is relatively well known from the description of Ierunca (1996), but is also described briefly in Curtois (1999, 420) or in greater detail by various Romanian scholars after 1989. In this regard, see e.g. Ruxandra Cesareanu, Tortura si oroare: fenomenul Pitesti (Torture and horror: the Pitesti phenomenon (1949–1952), in Cesareanu (2006, 153)).
- 50.
See e.g. Vermaat (1986), for an account of the political background, the events, and the trial of the Polish security service agents involved in the kidnapping and killing of Popieluszko.
- 51.
Although such counterargument would imply, per a contrario, a version of Radbruch’s argument (see Radbruch (2006) and De Francesco (2003), for an discussion of Radbruch formula in the context of German totalitarian regimes), respectively that the communist legal order was no order, after all, and should not be respected. This proposition would, of course, run against the major premise (communist order is legitimate legal order) of the proponents of the idea that the wrongs were not incriminated by the communist legal regime in place at the time.
- 52.
See e.g. Ioan Ciupea and Stancuta Toadea. ‘Represiune si sistem penitenciar in Romania 1945–1964’ (Repression and penitentiary system in Romania. 1945–1964), in Cesareanu (2006), for examples of such measures in the Romanian repressive context.
- 53.
As for example in the case of several thousand of former Romanian Police and Secret Service agents, arrested ‘preventively’ by communists between 1948–1951, whose judgment or incarceration could only become ‘legal’ after the adoption of retroactive legislation, some of it ‘secret,’ which was ‘enacted’ between 1951 and 1953. Ciupea and Toadea in Cesereanu (2006).
- 54.
Alexandru Draghici, Ministry of Interior in Romania in the 1950s, report to a party commission of investigation orchestrated by Ceausescu. See Buzatu and Chirițoiu (1998, 221).
- 55.
See e.g. Borneman (1997, 81), for the description of the trial of Dr. Wolfgang Vogel, the ex GDR lawyer who negotiated during the cold war with his superiors from Stasi, the ‘exit permits’ for East Germans, in return for their properties in GDR, an example of the perversion of lawyers’ roles in communism, applicable to the whole CEE region.
- 56.
See e.g. Bruce (2003). In general, there are no scholarly analyses of what made possible the collaboration of the ‘magistrates’ (Judges and prosecutors) with the communist regime in Central Eastern Europe, similar to those related to the collaboration of German and French Judges with the Nazis (See for example Curran (2001) and Wexler (1994)).
- 57.
For Hungary, for example, for the immediate aftermath of the war, for a population of approximately 9 millions of people in 1944, it is advanced a number of 600,000 people who were deported to the Soviet Gulag, from which 200,000 never returned. Bartošek in Curtois (1999).
- 58.
In Czechoslovakia Gottwald died in 1953; in Poland Gomulka took the seat of Bierut, who died in 1956, in Hungary the General Secretary of the Party, Rakosi, was removed in 1956; in Romania, Gheorghe Gheorghiu Dej, although preserving power, got rid of Ana Pauker and Theohari Georgescu, two of the communist leaders who played a great role in the earlier repression, and also of a number of security agents entrusted with the repression.
- 59.
Andrzej Packowski, ‘Poland, the “Enemy Nation,’ in Curtois (1999, 385).
- 60.
Marius Oprea, ‘Securitatea si mostenirea sa’ (The Securitate and its heritage), in (Cesereanu 2006, 22).
- 61.
Bartošek, Central and Eastern Europe in Curtois (1999, 449).
- 62.
Paczkowski, Poland, the “Enemy Nation in Curtois (1999).
- 63.
The case of Russian dissidents is well known and worth mentioning summarily in this context. For Romania, to give another example, there are also detailed descriptions of the abuses of psychiatry in the reprimand of the political opponents. See e.g. Paraschiv (2005) and Ion Vianu, ‘Persecutia psihiatrica a opozantilor si disidentilor’ (The psychiatric persecution of opponents and dissidents) in Cesareanu (2006, 209).
- 64.
As for example in the case of former GDR, where the people who sought to leave the country for FGR were forced to alienate their properties at ridiculous prices in order to obtain the permit to leave. An account of such practices and of Statsi’s involvement in this process is documented by Borneman (1997, 81).
- 65.
As in the case of Georgi Makarov, killed in London by Bulgarian Secret Service, or that of Noel Bernard, the director of Romanian section of Radio Free Europe, killed by the Romanian Securitate, or the unsuccessful attempt to the life of the Pope John Paul II.
- 66.
One resulted from the first post war decade, one from the late 1950s and 1960s, and one from the 1970s and 1980s. One should not consider these generations in absolute terms or in the abstract, since the same generation could endure systematic persecution characteristic to more than one moment of repression.
- 67.
Monika Nalepa, Skeletons in the Closet: Transitional Justice in the Post-Communist World, online at http://web.mit.edu/polisci/research/Nalepa_Chapter1-1.pdf (last visited May 2015).
- 68.
Ibid. For a good description of the Romanian case, where more prosecutions were initiated and some sentences of the communist era wrongdoers were secured while changing little in the public perception that communist agents were in general not punished for their deeds see Stan (2012).
- 69.
Jorg Arnold, ‘Criminal law as a reaction to system crimes (Criminal Law Vergangenheitspolitik and its forms of transitions)’ in Borejsza and Ziemer (2006, 404).
- 70.
Ibid.
- 71.
Available online at: http://www.ipn.gov.pl/wai/en/21/54/, last visited January 2016.
- 72.
Ibid.
- 73.
One of the few successful prosecutions of communist era crimes is described in the US State Department 2008 Human Rights Report for Poland, and resulted in the condemnation of 15 Communist-era police officers to prison terms from two to eleven years for their guilt in killing and wounding striking coal miners during an incident in 1981.
- 74.
Lori Montgomery, Justice Delayed For Those Tortured Under Communism, Philadelphia Inquirer, November 3, 1999, online at: http://www.paulbogdanor.com/left/czechoslovakia.html (visited August 2015).
- 75.
Association “21 December 1989” and others v. Romania (no. 33810/07 and 18817/08), ECtHR Judgment of 24 May 2011 (3rd Chamber), available in French on the court's website.
- 76.
Ibid, paras. 42–62 and 133–145.
- 77.
See Paul Humphrey’s entry for closure in Honderich (2005). Also, for a detailed discussion of the ‘Epistemic Closure Principle’ see Steven Luper, ‘The Epistemic Closure Principle,’ The Stanford Encyclopedia of Philosophy (Fall 2012 Edition), Edward N. Zalta (ed.), online at: http://plato.stanford.edu/archives/fall2012/entries/closure-epistemic (last visited October 2015).
- 78.
Although Günther Teubner’s twelfth camel of law might reformulate the domains and help the solving of the puzzle as it did in the old Bedouin story, the contribution of law in solving the problem is questionable. See Günther Teubner, ‘Alienating Justice: On the surplus value of the twelfth camel,’ in Přibáň, and Nelken (2001, 22–44).
- 79.
Scott and Marshall (2009, 88).
- 80.
- 81.
See e.g. Williams and Deletant (2001).
- 82.
See e.g. Berend (2009).
- 83.
- 84.
- 85.
Or of transformation of property relations described as ‘social progress.’ See also infra, text to n 143–46 in ch 2, for an alternative description of processes of transformations of property as cultural (and social) trauma, and for bibliography related to this subject.
- 86.
A degree of collaboration with the secret communist police was mandatory for the top management of enterprises in the so called ‘sensitive’ branches of national economy, considered of high importance by the communist party. For examples of the ways in which state enterprises were ‘re’organized and privatised in Poland by nomenklatura, applicable more generally to the post-communist CEE, see Łoś and Zybertowicz (2000).
- 87.
In fact, such ‘selection’ usually started much earlier, during the primary and high school when the student enrolled in the communist youth, and operated during the whole professional life of a communist “technocrat.” For a brief description of the ‘political ability’ of communist cadres to respect the communist era unwritten operation codes which prevailed the written laws in case of conflict, and for a description of the effects of such unwritten operation codes during the post-communist period, in a paradigmatic case of Czechoslovak law schools see Aviezer Tucker, “Paranoids May Be Persecuted,” in Elster (2006, 183–185).
- 88.
The communist directors of enterprises would thus cover all the psychological types of wrongdoers described by Elster (2006, 137), with probably a dominance of opportunists and conformists, the “parasites on the wrongdoing regime, rather than its driving and sustaining force”, as argued by Elster.
- 89.
This ‘ability’ was based on unwritten organisational codes of the communist parties, little known outside the communist parties.
- 90.
In the scholarly literature are mentioned also other reasons for the post-communist absence of such exclusionary inclusion, as for example the negotiated character of the anticommunist political ‘revolutions’ of 1989, or the absence of a wide poll of untainted qualified candidates for the positions occupied by the communist technocrats.
- 91.
See Elster (2006). Elster posits that the emotions, which constitute the basis for demand administrative justice, do not decay with the passing of time if communication among the victims, visible physical reminders of the wrongdoing, and perpetuation of the state of affairs caused by wrongdoing is taking place in transitions to a democratic regime. Arguably all these conditions were met at least in the first decade of the post-communist transition in the CEE.
- 92.
See e.g. Rupnik (2007) and Krastev (2007). Krastev speaks in these terms about the legacy of the first years of Post-communist transformations: “The populists obsession with corruption is the most powerful expression of this new understanding of the meaning of politics. The new populist majorities perceive elections not as an opportunity to choose between policy options but as a revolt against privileged minorities—in the case of Central Europe, corrupted elites and morally corrupting ‘others’ such as ethnic or sexual minorities.” Krastev (2007, 63).
- 93.
See e.g. Upheaval in the East: Army Executes Ceausescu and Wife for ‘Genocide’ Role, Bucharest Says, N.Y. Times, Dec. 26, 1989, at Al, col. 6; Evolution in Europe: Ceausescu’s Fallen Heir Faces Court, N.Y. Times, May 27, 1990, at 14, col. 4; Inquiry on Deaths Going Nowhere in Romania, N.Y. Times, Feb. 14, 1991, at A10, col. 1; Czechoslovakia Detains Ex-Communist Party Leader and 4 Others, N.Y. Times, June 7, 1990, at A10, col. 1; Bulgaria Presses Inquiries into the Communist Past, N.Y. Times, June 6, 1991, at A15, col. 1; Bulgaria’s Ousted Dictator Agrees To Face His Accusers, N.Y. Times, July 19, 1990, at A6, col. 5; Poland Arrests 2 Police Generals in ‘84 Killing of Reformist Priest, N.Y. Times, Oct. 9, 1990, at A8, col. 3; Prosecutors for Unified Germany Seize Former Communist Officials, N.Y. Times, Oct. 7, 1990, at 14, col. 1; Honecker’s Arrest Sought in Berlin Wall Shootings, N.Y. Times, Dec. 2, 1990, at 23, col. 1; Honecker Taken to Soviet Union; Germany Demanding His Return, N.Y. Times, Mar. 15, 1991, at Al, col. 1; 4 Ex-Officials of East Germany Arrested, N.Y. Times, May 22, 1991, at A3, col. 4; Berlin Wall Guards Accused of Shooting Escapees, N.Y. Times, June 16, 1991, at 6, col. 1.
- 94.
A brief search with key words such as‘prosecution of ex/former communist leaders in Europe’ in leading newspapers, as the New York Times, Washington Post, The Times, or Guardian, for the period between 2005 and 2012 returned a scarcity of results. A statistical table which includes the prosecution(s) and other retributive measures taken by CEE post-communist regimes is provided in Montero (2010, 200–206).
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Damşa, L. (2016). Post-communist Property Transformations and Transitional Justice. Some Historical, Legal and Philosophical Issues. In: The Transformation of Property Regimes and Transitional Justice in Central Eastern Europe . Studies in the History of Law and Justice, vol 8. Springer, Cham. https://doi.org/10.1007/978-3-319-48530-0_2
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