145
CHAPTER 6
Transitional Justice and Memory
Vello Pettai and Eva-Clarita Pettai
In the study of politics, Eastern Europe represents a region that allows us to study stirring
phenomena like the dynamics of popular protest, the rebirth of democracy, and the
development of new national identities. It does so, however, in response to the preceding
period of severe political and social repression that, in the case of Central and Eastern
Europe, lasted some five decades, while in Ukraine, it lasted more than seven decades.
Although this oppression went through several phases and had clear variations from
country to country, it encompassed not only restrictions on free speech, association, and
travel but also more horrific human rights violations such as widespread surveillance,
indiscriminate arrest, mass deportation, and summary killing. Moreover, much of what
had happened was kept secret, known only through individual recollections and family
stories. While liberation between 1989 and 1991 was an exhilarating event for all of these
peoples, it also came with hard questions about how to deal with this past: Who should
be held to account? How should victims be acknowledged? How should the country as
a whole remember this era? As each society struggled with these issues, it also became
apparent that the periods of Nazi and communist rule in the region had not been a mere
interregnum or hiatus; for many, it was seen as a national ordeal that would mark the
identity and politics of these peoples for decades to come.
The process of reckoning with past regime abuse and people’s suffering is generally
called “transitional justice.” Postcommunism is only one of three broad contexts in which
this increasingly global phenomenon has occurred, the others being after military regimes
(such as in Argentina or South Korea) and after civil wars (such as in Sierra Leone or Sri
Lanka).1
What is special about the crimes and abuses of communist rule is that they were
more pervasive and subtler than those in other regimes. Therefore, while Central and East
Europeans could draw on certain transitional justice lessons from other countries, they
also had to deal with specific communist-era legacies, such as dismantling extensive secret
police networks or returning thousands of buildings and other forms of property that
had been nationalized by the communist authorities. Beyond this, because communist
rule had followed World War II and the brutalities of Nazi occupation, many of these
countries actually had to right the wrongs of two periods of repression almost simultaneously.
Third, while transitional justice in Central and Eastern Europe was strongly
focused on “righting the wrongs” of the preceding regimes, it also had a forward-looking
146 VELLo PETTAI ANd EVA-CLArITA PETTAI
commitment to rebuilding democratic values, rule of law, and societal trust that would
help to undergird the region’s return to the Western world.
Yet, all of these similarities notwithstanding, the countries of Central and Eastern
Europe have also varied considerably in terms of not only the timing and scope of transitional
justice measures adopted by the new governments, but also the levels of political
controversy that have accompanied these policies. Some countries like the Czech
republic were early and aggressive implementers of transitional justice, while others, such
as Bulgaria, have been late and halting. Some countries, like Poland, have seen recurring
waves of political debate over the need for such policies, while others, like Estonia, seem
almost to have “closed the books” on these matters. In any case, none of the Central
and East European states has been able to avoid dealing with the past, as Poland’s first
postcommunist prime minister put it, by “drawing a thick line” and simply moving
forward.
Moreover, as more and more time has elapsed since the collapse of communism, the
question of how to deal with the past has gradually shifted from being an immediate issue
of what to do with the remnants of the old system to a process of forming a common
national memory of those troubled times. The oppressors of the former regime and their
victims are no longer alive or they are not as prominent in these societies as they once
were. New dimensions of political and social life, such as European Union (EU) membership,
socioeconomic development, or a resurgent russia, have also often overtaken
transitional justice. debate about the Nazi and communist eras has frequently shifted
toward how this past should be remembered and commemorated, depicted and framed,
taught and communicated. This phenomenon has been called the politics of memory.
Unlike transitional justice, which focuses on specific individuals or groups, the politics
of memory looks at how politicians seek to influence society as a whole by propagating a
certain “correct” version of history and thereby craft particular historical identities for the
longer term. Yet, here too, there are many national differences, in terms of not only how
historiography has evolved, but also how politicians have tried to instrumentalize commemorative
events, institute certain national memorial days, and sometimes even adopt
formal laws on how the past should be named and remembered in the public sphere.
Different Dimensions of Postcommunist
Transitional Justice
We begin by taking a closer look at transitional justice and laying out two important
frameworks for analyzing this phenomenon. The first takes a time perspective and
examines not only how quickly or slowly new democratic governments in Central and
Eastern Europe adopted certain transitional justice measures but also how far back in
time the regime abuses were that these measures sought to rectify. The second framework
involves understanding the range of specific measures countries could adopt concerning
transitional justice. Here, the issues concern the degree to which countries deal with both
perpetrators and victims of past regime abuse, as well as the legal level at which these
measures are implemented.
TrANSITIoNAL JUSTICE ANd MEMorY 147
When new democratic governments come to power, often their first priority is to
deal with the immediate aftermath of the prior regime.2
This is not easy, however, since
the necessary criminal procedures or laws for prosecuting offenses like human rights
violations will not have existed under the legal codes left over from the communist era.
In this respect, new democracies always face a dilemma. Either they can implement
quick, but perhaps also arbitrary, justice (by banning, say, all former communist party
members from politics regardless of what they did as members) and, thereby, undermine
the principles of rule of law which democracy itself stands for. They can take time to pass
new legal frameworks, but in so doing may lose momentum in the process as a whole
(as certain suspects flee into exile or disappear into obscurity). Much will depend on
the strength of the new democratic governments themselves. Where democratic leaders
are in a strong position politically, they can adopt a number of transitional justice policies
quickly. Where former rulers were able to negotiate their departure from power
and remain active in political life, progress on transitional justice may be slower. Several
electoral cycles may be needed before political forces committed to dealing with the past
can regain power and begin to adopt relevant measures. In these cases, we often speak of
“late,” “delayed,” “second-wave,” or “post-transitional” justice.
In Central and Eastern Europe, the Velvet revolution in Czechoslovakia allowed
new leaders to push for speedy adoption of laws that not only cleansed the civil service
of former communists but also offered rehabilitation and compensation to political
prisoners under the former regime. Although Czechoslovakia later broke up through the
Velvet divorce, the Czech republic continued implementation of these steadfast policies
(while Slovakia did not). Albania was also a case of quick action on transitional justice
under the democratic Party elected in 1992. The new government moved swiftly to
replace former communist officials with its own loyalists. It also passed legislation seeking
to bar ex-communists from standing for future elected office. However, because many of
these measures began to be used for very partisan purposes, the democratic Party soon
became unpopular. The ex-communist Socialist party was returned to office in 1997, and
transitional justice essentially stopped.
In Lithuania, Hungary, and Poland, another combination ensued, as ex-communists
were able to return to power within just a few years of the transition, and thereby stall
transitional justice measures relatively quickly. At the same time, right-wing forces were
able to reestablish control later on and thereafter undertake what was mentioned above
as delayed transitional justice. Conservative parties in Lithuania, for example, regained
control of government in 1996, and then began a series of truth and justice initiatives
lasting for many years. In Poland, the rise to power of the Law and Justice Party in 2005
also opened up a new wave of transitional justice, including a more aggressive policy
preventing former secret police employees from working in the public sector.3
Bulgaria,
romania, and Ukraine, meanwhile, represented cases where ex-communist parties
remained relatively strong throughout the 1990s (even when in the opposition), and, as
a result, transitional justice remained weak all around.
Another dimension of time important for studying transitional justice relates to the
fact that communist rule in Central and Eastern Europe lasted for more than four decades
and in Ukraine upward of seven. The consequence of this was that in some countries it
was easier for politicians to address regime abuses that were farther back in time than
148 VELLo PETTAI ANd EVA-CLArITA PETTAI
to confront those where perpetrators may have still been active in society. Establishing a
historical truth commission to look into the 1956 uprising in Hungary, the 1941 Stalinist
deportations in Latvia, or the 1932–1933 Holodomor famine in Ukraine—even if it
named specific persons involved—was politically a less audacious act of transitional justice
than trying to put late communist officials on trial or establish expensive reparations
programs for former dissidents. Morally speaking, both types of justice were important,
especially in terms of understanding the whole communist era. However, when we want
to understand why some countries addressed certain regime abuses and not others, we can
see that some issues were costlier to tackle politically than others.
Indeed, the two time dimensions mentioned here were often intertwined. When new
democratic governments did not have the political muscle to directly confront former
communist leaders, they could focus on dealing with historical instances of repression.
Likewise, when left-wing governments were in power and they had little interest
in dwelling too much on the immediate past, they could still demonstrate a degree of
bona fides regarding transitional justice by sponsoring measures that addressed decadesold
injustices without fear of undermining their own political legitimacy. Sometimes
governments could come to power many years after democracy had been established and
then seek to take on tough transitional justice issues like putting an ex-communist leader
on trial, such as Poland did against Wojciech Jaruzelski and Czesłav Kiszczak.
Photo  6.1. General Wojciech Jaruzelski, president of Poland in 1989 and 1990 and
former head of the Polish military, was tried for attacks on demonstrators in Gda sk
during the 1970 demonstrations. The trial ran for nearly a decade and then was
dropped in 2013 due to his age and illness. (Adam Chelstokski/FORUM)
TrANSITIoNAL JUSTICE ANd MEMorY 149
But when this combination of time dimensions (late, but aggressive transitional
justice) took place, the relevance of the act was often diminished, since the leaders were
likely to be very old and the charges more difficult to sustain.
A second overarching framework on the basis of which transitional justice processes
in Central and Eastern Europe can be compared involves scrutinizing the breadth of
different measures that are undertaken. When governments abuse their power or repress
their citizens, justice should, in theory, encompass both punishing the perpetrators and
acknowledging the victims. In reality, however, it may be the case that the latter is easier
than the former. offering compensation or rehabilitation to a deportee is often simpler
to carry out than proving the legal culpability of the secret police official who ordered the
deportation. This means that one aspect of studying transitional justice concerns looking
at how much countries are able to deal with one or the other side of this same coin.4
Furthermore, even when a country addresses both perpetrators and victims, it may
do so at three different levels of policy. on the one hand, classical transitional justice
begins with enacting criminal-judicial legislation that would allow for the prosecution
and trial of former regime officials responsible for human rights violations. Likewise,
however, it is important to recognize that criminal-judicial legislation can pertain also
to victims, in the sense of reversing erstwhile convictions imposed during show trials or
politically motivated prosecutions. This is known as rehabilitation. A step lower in terms
of policy involves administrative-political measures that can deprive perpetrators of certain
political rights or privileges, while restoring or according such benefits to victims. Again,
these tracks need not take place at the same time, but they both involve mid-level policy
measures that will often be enacted by law but can also be implemented through administrative
decisions. Lastly, certain truth measures can be seen as having purely symbolicrepresentative
value in terms of shaming perpetrators or acknowledging the suffering of
victims. As such, they would appear to have the least consequence. However, for individual
perpetrators or victims these can still be important, as when a perpetrator’s professional
career may be damaged by having been exposed as a one-time secret informant,
or when a victim’s feeling of dignity is restored when he or she is able to gain access to
surveillance files compiled by the security services, or participate in official ceremonies
commemorating past repressions.
In the sections that follow, we will bring examples of all of these policy variants of
transitional justice. However, we will also try and show where different time dimensions
manifested themselves. That is, we will see how some of these types of action were taken
early on following the collapse of communism and others were sometimes pursued years
later. Likewise, we will observe that certain policy measures were more prevalent toward
more historical injustices, while others pertained mainly to more recent communist
repression.
CRIMINAL-JUDICIAL JUSTICE: PROSECUTION AND REHABILITATIONS
Few romanians alive during the collapse of communism will ever forget what they felt
when they heard in december 1989 that their country’s ruler Nicolae Ceaușescu and his
wife Elena had been tried and summarily executed barely three days after they fled from
150 VELLo PETTAI ANd EVA-CLArITA PETTAI
power. This was an example of immediate criminal justice vis-à-vis a former repressive
leader akin to what one might imagine happens stereotypically when a society tired of
being subjugated by a ruthless dictator rises up for revenge. Needless to say, the trial
conducted over the Ceaușescus was not a formal court procedure. After he and his wife
were caught, they were “tried” by their military captors and put before a firing squad.
This illustrates one of the first challenges that many postcommunist countries faced when
they tried to criminally prosecute former leaders: What law should or could be applied
toward communist-era repression so that it would not be considered retroactive or post
hoc justice? How could evidence be gathered for such culpability, how should such trials
or procedures take place, and what should constitute proper punishment if an accused
were found guilty?
New leaders in three countries in the region, the former East Germany, Poland, and
Bulgaria, actively sought to put prominent communist officials on trial; however, their
strategies in this regard slightly differed. Both Germany and Poland sought to build cases
against Erich Honecker and Wojciech Jaruzelski, respectively, that centered on their role
in ordering the direct killing of civilians. In Honecker’s case, it involved his responsibility
for issuing a policy to shoot people trying to cross the border to West Germany surreptitiously.
For Jaruzelski, it concerned a command to open fire on workers striking in
1970 at the Gdansk shipyards. Ultimately, however, both of these trials failed, not only
because of the defendants’ delaying tactics and their advanced age by the mid-1990s,
but also precisely because it was difficult to prove culpability so high up in the chain of
command. The case against the longtime head of Bulgaria’s Communist Party, Todor
Zhivkov, was for a more banal offence of misappropriating state funds. In his case (along
with a number of other defendants in the trial), the prosecution was more successful, and
multiyear prison terms were handed down because these were provable offenses. The only
successful prosecutions for actual political repression were of mid- and lower-level officials
such as border guards or security personnel, who were tried and found guilty of manslaughter
in specific incidents. officials in Germany carried out more than five hundred
such prosecutions, while in the Czech republic, the number was around fifty.5
In Hungary, a different difficulty emerged when, during the early 1990s, authorities
attempted to carry out a form of more retrospective justice by seeking criminal charges
against those who had been involved in killing during the 1956 revolution or forty years
earlier. repeatedly, the Hungarian parliament passed legislation enabling the relevant
prosecutions to begin; each time, however, the Hungarian Constitutional Court issued
rulings declaring such amendments illegal as they overrode the statute of limitations that
existed for manslaughter under Hungarian law.6
Eventually, the court acknowledged
that the statute of limitations would not apply if repressions during the 1956 uprising
constituted a war crime or a crime against humanity, since these notions derived from
international law. This opened up a new legal avenue for prosecutors, and a number of
trials were launched, including against Béla Biszku, a top-ranking communist official
from 1956 who had publicly asserted that the reprisals had been justified.
The proposition that communist-era repression constituted in many cases a fullscale
crime against humanity without any statute of limitations became a prevalent legal
approach in the Baltic states as well. For these countries, the motivation was even more
acute, since repression during the 1940s had included multiple waves of mass deportation,
TrANSITIoNAL JUSTICE ANd MEMorY 151
most prominently in 1941 and 1949. during those years, more than 180,000 people had
been herded into cattle cars and forced to resettle in remote areas of Siberia or sent into the
Gulag. Countless individuals died along the way, while even more perished later amidst
the harsh labor and living conditions. Many of the responsible agents of the Soviet secret
police at the time, the NKVd, continued to be alive in the 1990s. The parliaments in
Estonia, Latvia, and Lithuania therefore reworked their criminal codes in order to lay out
statutes against not only war crimes and crimes against humanity but also genocide. They
used these provisions to begin several hundred investigations (particularly in Lithuania),
which resulted in nearly sixty convictions. However, as in many other countries, many of
the accused died during trial proceedings, or they were given suspended sentences because
of their advanced age.
Judicial authorities were also heavily involved in the process of rehabilitating victims
of communist-era repression. Laws clearing individuals of conviction for politically
motivated crimes were passed across the region as soon as democracy was reestablished.
one example was Czechoslovakia, where barely six months after the Velvet revolution,
parliament adopted a rehabilitation law that invalidated a wide range of convictions that
had been carried out against dissidents and other opponents of the regime based on specific,
political offenses listed in criminal law. It sufficed to simply rescind these statutes
and annul all convictions issued on their basis in order to carry out rehabilitation. At the
same time, other cases were more ambiguous, such as when people had participated in
some anti-regime demonstration, but were convicted for simply “hooliganism.” These
cases often needed to be reexamined before rehabilitation could be granted. Lastly, many
countries (such as the Baltic states) adopted laws that went farther back in time in order
to deal with the victims of Stalinist repression during the 1940s and 1950s. In these
instances, prior convictions were also readily overturned, since extrajudicial tribunals had
often handed them down. Nevertheless, there were also rehabilitated individuals who had
actually committed crimes. In Lithuania, officials were forced to rescind rehabilitation
for several dozen individuals, after it came out that although these people had been tried
for anti-Soviet activity in the late 1940s, they had also been linked to the repression and
killing of Jews during the Nazi occupation. Serbia and Croatia, meanwhile, rehabilitated a
number of controversial figures from World War II following their conviction by postwar
communist tribunals despite much controversy among legal and academic experts.
POLITICAL-ADMINISTRATIVE TRUTH AND JUSTICE: LUSTRATION
AND COMPENSATION
Transitional justice in Central and Eastern Europe has most often been associated with
lustration, or the process of investigating, exposing, removing, and possibly sanctioning
individuals for different degrees of communist-era collaboration that did not involve
a formal criminal offense. In reality, this phenomenon involved three separate policy
dimensions. First, what level of prior participation in the regime would be seen as
warranting lustration? Second, what kind of more precise administrative sanction would
be imposed for that involvement? And third, how would the screening of existing state
employees as well as the vetting of future employees be organized?7
152 VELLo PETTAI ANd EVA-CLArITA PETTAI
regarding the first dimension, most countries concentrated their attention on those
who had most directly been responsible for repression: full-time agents and employees
of the former security services. Therefore, some form of screening and vetting legislation
targeting these people was adopted at some point in almost every country of the
region. Closely related to this category, however, were the thousands upon thousands
of informants and collaborators of the secret police, whom most countries also sought
to subject to lustration in some way. Yet, here the verification process was not so easy,
since it was never clear whether operative files from the secret services (also often seized
after the democratic transition) could really be trusted to determine someone’s degree of
involvement given that agents of the police may have tried to embellish their successes
within the system. This kind of ambiguity often gave pause for thought in some countries
such as Estonia, where informants of the Soviet KGB were never actively pursued even
though lustration legislation allowed for this. Meanwhile, other countries such as Albania
cast their net in a different direction and included as subject to lustration all those who
had been members of the Politburo and Central Committee of the former communist
party as well as communist-era parliamentary deputies and presidents of the Supreme
Court.8
In other words, a number of ex officio positions from the past regime could be
included within the circle of lustration, irrespective of what these people had actually
done in office.
on the second question of determining appropriate sanctions, most countries would
begin with a ban on employment in the civil service (especially for former secret police
agents). In some countries, however, the notion of civil service was extended beyond
simple administrative positions to include not only the courts, but also high-level management
positions in state-owned companies (the Czech republic) or even university
management positions (Poland). This implied a maximum effort to keep former regime
individuals out of the democratic state. Moreover, Lithuania would also seek to bar these
people from working in many areas of the private sector, such as banking, detective
services, or the legal profession. Although this 1999 version of the country’s lustration law
would eventually be overturned by the European Court of Human rights, it did lead, in
the very beginning, to many private firms firing individuals alleged to have been involved
with the Soviet KGB.9
A strong level of formalized noncriminal sanctioning of former regime officials was
adopted in Latvia, which after 1996 screened all candidate lists for parliamentary and
local elections and authorized the central electoral commission to make public the names
of all those who had been listed somehow in leftover KGB files. Moreover, if a court
had formally proven a person’s collaboration with the Soviet security forces, he could be
removed from the electoral list. In other words, the country effectively denied former
agents their right to stand for public office, which the European Court of Human rights
did uphold in the initial term, but eventually declared a violation of European human
rights law in 2008.
To deal with this entire process of personnel review (the third important policy
dimension), countries in the region established a variety of administrative offices and
procedures. The Czech republic had perhaps the most rigorous system, requiring
individuals seeking to retain or obtain employment in the public sector to request a
formal lustration certificate from a special section of the Ministry of Interior tasked with
TrANSITIoNAL JUSTICE ANd MEMorY 153
reviewing available files from the former secret police, the StB. In this respect, the burden
of proof was put on each individual to directly vindicate himself before being allowed into
the system. Poland and Hungary enacted milder procedures, both in terms of limiting
the scope of government posts under review to high-ranked elected officials (and not all
civil servants) as well as by making the screening process less onerous. For example, under
Poland’s 1997 legislation, individuals were required to sign a declaration disclosing any
prior collaboration with the old regime. Thus, in theory, one could admit collaboration
and, in so doing, be exonerated and free to seek high elected office. If one lied on one’s
declaration, a special court could review the evidence and reveal the person’s name in
public. However, these proceedings were generally conducted behind closed doors, so this
quickly became a battle cry among conservatives like the Kaczyński brothers for a more
rigorous lustration procedure. Lastly, Estonia took one of the most liberal approaches,
specifying that current and future state employees merely sign an “oath of conscience”
that they had not engaged in communist-era repression. Moreover, these documents
would remain simply on file unless another individual or prosecutor specifically contested
them. In this respect, the Estonian system presumed that individuals were telling the truth
before they were scrutinized (and not the other way around). Moreover, this system came
to an end relatively quickly (december 2000), instead of being extended in duration as
in the Czech republic.
Needless to say, all of these different approaches endured various levels of criticism for
being either too lax or too severe.10
Moreover, when particularly respected politicians were
brought down by these provisions (such as Juris Bojārs in Latvia, a one-time prominent
member of the Latvian independence movement, but also ex-major in the KGB), it
became obvious that cleaning out the skeletons in the closet would be tricky. Yet, beyond
these formal procedures and their attempts to adhere to some degree of rule of law, the
phenomenon of “informal lustration” also flared in each postcommunist country, as
politicians traded accusations of possible collaboration by their opponents and the news
media both amplified these debates and provided fodder of its own through investigative
reporting and public speculation. This was the crossfire to which two prime ministers
in Poland (Jan olszewski and Jozef oleksy) would be subjected during the first half of
the 1990s before Poland even had a lustration law. In Bulgaria and romania, this frenzy
accelerated in the 2000s partly as a response to insufficient lustration policies being passed
in the first place.11
This continuous politicization and instrumentalization of lustration controversies also
indicates why (in contrast to many other transitional justice measures) these policies have,
most often, been subject to a ratcheting up or a tightening many years after democracy
has been consolidated. In other words, a time dimension is clearly evident in this domain,
such that many analysts have spoken of “late lustration” when examining, for example,
how both romania and Poland tried to stiffen their policies in 2006.12
These kinds of
shifts have also made explaining lustration a complicated affair. While structural issues
such as type of democratic transition may have mattered in the initial term, there have also
been many wildcards in play when one considers how sensationalist media revelations can
have unforeseen consequences for public opinion or political posturing. These waves of
controversy have also been criticized for undermining one of the very objectives of transitional
justice: to rebuild trust in society and the new democratic system.
154 VELLo PETTAI ANd EVA-CLArITA PETTAI
Turning to the victim side of political-administrative transitional justice, it is perhaps
no surprise that countries that decided to legally rehabilitate victims of repression also
often worked out additional, administrative forms of reparation, including granting those
individuals monetary compensation and/or other social privileges. Ideally, this type of transitional
justice involved adopting formal legislation that would accord certain individuals
special legal status as “repressed persons” and make them eligible for particular benefits.
Lithuania adopted such a law in 1997 specifying no less than three dozen types of repression
or persecution individuals may have suffered during either the Soviet or Nazi German
occupations from 1939 to 1991, and making all of them entitled to special standing.
In terms of monetary compensation, former political prisoners in the Czech
republic, for example, received a base payment of roughly $83 per month of incarceration
under the communist regime, while in Bulgaria those who had been held in labor
camps or imprisoned could receive up to $1060 per month of detention, as would former
prisoners in romania.13
Meanwhile, in some countries like Poland, interesting dividing
lines emerged on temporal grounds. The country’s original 1991 compensation law limited
benefits to those who had suffered from 1944 to 1956, thereby making the measure
largely a retrospective one. Many members of the Polish Senate objected to this restriction,
saying that this would belittle suffering that had happened after the end of Stalinist
terror. At the same time, a number of more recent victims of repression (especially
those who had been imprisoned during the martial law period after 1980) believed that
compensation for them would cast in a somewhat disparaging light the pro-democracy
struggle that these people had waged simply out of their convictions. Moreover, many
politicians born out of the Solidarity movement were uneasy about making themselves
personally eligible for such benefits. The expansion of compensation policy in Poland
therefore remained a thorny issue for years to come.
In the Baltic states, the focus was overwhelmingly on measures to compensate
suffering for the victims of the 1940s’ deportations. All three countries tailored their
pension systems and even some privatization schemes to count time spent in Siberia as part
of a victim’s years of gainful employment. Lithuania also paid such victims direct compensation,
although this raised certain ambiguities, since it was the Soviet authorities who had
deported these people; therefore, some found it questionable that the new Lithuanian state
should take on this burden instead of, say, russia as the USSr’s successor state.14
A further administrative type of reparative justice for victims involved the restitution
of any property taken away by the communist authorities. Sometimes this concerned
political prisoners or deportees, who had had their homes or other property seized by
the communist state. For these victims, the process of restitution was relatively easy.
However, a much broader form of this policy involved the restitution of property that
had been nationalized by the communists usually during the beginning of their regime.
Here the question was should all of these former owners and their descendants get back
their property, and if so, in what manner? Moreover, property had to be differentiated
into at least five forms: agricultural land, dwellings and buildings, nonphysical property
such as stocks, property that had been demolished or destroyed during war, and church
or religious community property. Concerning agricultural land, restitution processes generally
proceeded smoothly, since in most Central and East European countries (with the
exception of Poland), agriculture had been collectivized, and this meant that all arable
TrANSITIoNAL JUSTICE ANd MEMorY 155
land was in state hands. In most instances, it was not difficult to review whatever land
records existed prior to nationalization and to develop procedures for the return of this
land, even if in the short term it went to smallholders and would prove counterproductive
from the perspective of developing a new and strong agricultural sector.15
More controversial was the policy of returning houses and apartment buildings to
former owners, especially if those dwellings now had new tenants and these people would
suddenly become renters not to the state but to private owners.16
Not only would this
process require years of bureaucratic effort (verifying former ownership claims and negotiating
among often multiple claimants and their descendants) but also, in social terms,
so-called “forced renters” would often be pressured to leave these homes so that restituted
owners could undertake renovations or develop their properties for more profitable gain.
In theory, this kind of housing transformation was supposed to help revive real estate as
such and make it more productive (especially in downtown urban areas). However, in
reality, it came at the cost of considerable social disruption. In many cases, municipal
authorities lacked alternative housing for such forced renters. Controversy would also
flare over whether émigrés would be allowed to get back property abandoned decades
earlier; in Estonia and Latvia they would, in the Czech republic and Lithuania not.
Politically, the issue would remain charged for many years.
This was one reason why some governments such as Lithuania, Hungary, and Poland
opted for more restrictive rules, such as offering claimants only compensation, especially
if the prior dwelling, commercial enterprise, or land had since been substantially changed
or privatized. In legal terms, this was justified as still constituting justice, since property
rights were construed as meaning a right to a certain value or good, and not an absolute
right to a particular object. restitution could therefore also take the form of privatization
vouchers or other certificates, which could be used for the purchase of alternative property.
Lastly, property restitution policy often shifted over time, as different governments
would attempt to either speed up or slow down these processes depending on their political
persuasion. At the same time, the courts often stepped in to maintain some kind of
consistency in the process. Hence, Lithuania’s courts would stymie conservatives’ attempts
to expand restitution efforts in the late 1990s, while Estonian courts would often side
with former owners even after lawmakers in that country sought to curtail some of the
restitution provisions.
A final area of contention concerned religious property. In many countries, officials
had to negotiate extensively with the Catholic Church concerning the return of not
only churches, but also agricultural lands and other property. Likewise, the restitution
of Jewish property that had been seized or abandoned as part of the Holocaust but that
had never been returned or compensated by the subsequent communist authorities was
very difficult. Many Central and East European countries were reluctant to take on these
claims, arguing that, in most instances, the individual claimants were no longer citizens or
residents of these countries and were therefore ineligible under existing law. Furthermore,
many governments demurred on recognizing Jewish community property, especially if
it pertained to social welfare establishments like hospitals or schools. Lastly, acknowledging
Jewish claims in cities like Warsaw, Vilnius, or riga promised to open up large
swaths of property to either restitution or expensive compensation. A number of international
associations such as the World Jewish restitution organization put pressure on
156 VELLo PETTAI ANd EVA-CLArITA PETTAI
governments to resolve these issues. In 2011, Lithuania passed a special law on “good will
compensation,” allocating over $50 million over a ten-year period to a special restorative
fund. Efforts to pass similar legislation in Latvia and Poland have failed.
SYMBOLIC-REPRESENTATION JUSTICE: TRUTH-SEEKING
AND RECOGNITION
A final cluster of transitional justice measures represents those actions that are seemingly
of mere symbolic value in that they do not impose tangible punishment on perpetrators
nor offer reparations to victims. However, they do play a substantive role in determining
society’s overall understanding of its past or they contribute to individual truth revelation,
healing, and/or reconciliation. Again, we can divide these measures in terms of their focus
on perpetrators and victims, though often measures in this field will cover both groups.
Almost all countries of Central and Eastern Europe have periodically adopted parliamentary
or other solemn declarations condemning their prior communist regime.17
For example, in 1991, the Czechoslovak Federal Assembly issued a statement on the
1948–1989 period of “non-freedom” through which it characterized its former government
as having systematically violated human rights and its own laws. This stance was
reaffirmed in 1993 after the Velvet divorce, when Czech legislators adopted a new “Act
on the Illegality of the Communist regime and resistance to It.” In that document,
the parliament specifically listed ways in which the regime had suppressed people’s free
will, violated human rights, restricted property rights, and committed other crimes and
abuses. Moreover, the Act asserted that “[t]hose who implemented the Communist
regime as officials, organizers, and agitators in the political and ideological sphere, are
fully responsible for the[se] crimes.” Later, a group of opposition MPs contested the Act
in the Czech Constitutional Court, claiming that the Act established an illegal principle
of collective guilt vis-à-vis former communists. Interestingly, the Court rejected that
appeal, saying, “The constitutional foundation of a democratic State does not deny the
Parliament the right to express its will as well as its moral and political viewpoint by
means which it considers suitable and reasonable within the confines of general legal
principles.”18
Some years later, the Slovak parliament passed a similar resolution decrying the
“immorality and illegality of the communist system,” while Bulgaria denounced its erstwhile
Communist Party for (among other things) “purposefully and deliberately ruining
the values of European civilization . . . the moral and economic decline of the State . . .
[and] employing permanent terror against people who disagree with the system of ruling.”19
At the same time, a statement denouncing the role of the Slovenian Communist Party in
sustaining the erstwhile Yugoslav regime failed to pass the Slovenian parliament in late
1997.20
In the Baltic states, such declarations have been even more poignant, as they have
generally blamed a specific country, the Soviet Union, for their communist suffering. In
this respect, the Balts have largely externalized their condemnation of communist rule
onto the USSr—and by implication to the russian Federation as the successor state to
that one-time occupier. As the Latvian parliament declared in 1996,
TrANSITIoNAL JUSTICE ANd MEMorY 157
[t]hroughout the occupation, the Soviet Union conducted a targeted genocide
against the Latvian people, in breach of the Convention on the Prevention and
Punishment of the Crime of Genocide of 9 december 1948. The occupation
regime killed innocent people, carried out several mass deportations and other
repressive policies, cruelly punished those, who with or without arms fought for
the restoration of Latvian independence, and unlawfully expropriated Latvian
citizens without compensation and suppressed freedom of expression.21
In many instances (such as the Czech republic instance mentioned above), political
declarations have also sought to laud resistance fighters and dissidents against the regime
or have otherwise drawn attention to the victims alongside condemning the perpetrators.
Sometimes these declarations have also been the start of the rehabilitation procedures
described earlier.
Still another approach to identifying perpetrators and victims in the national psyche is
through truth commissions and other bodies, where the past is researched, discussed, and
clarified. Although no country in postcommunist Europe established the kind of public
truth commission pioneered famously in postapartheid South Africa, many countries
began the process by convening special parliamentary commissions to study individual
periods of repression, such as Poland during the 1981 military crackdown, Hungary
in 1956, and Czechoslovakia in 1968.22
A  special Bundestag Enquète Kommission
conducted more systematic examinations of regime abuses in Germany, and a comparable
multiyear inquiry was conducted by the Slovenian parliament in the early 1990s.
Even more broadly, a number of countries appointed commissions made up of
historians, cultural figures, and other prominent individuals to examine the crimes and
legacies of these regimes in societal terms. often known as “historical commissions,” such
bodies were established in Estonia, Latvia, Lithuania, and, later, romania.23
In Estonia,
the “State Commission for the Examination of repressive Policies Carried out during
the occupations” was launched in March 1992, barely six months after the reestablishment
of independence.24
It was also one of the longest standing bodies, operating
until 2005. While its focus was mostly historical (looking into the “crimes of genocide”
committed by the Nazi German and Soviet regimes), one of its lasting legacies was to
publish extensive lists of victims of the Soviet deportations during the 1940s. A second
group of historical commissions was created in the Baltic states during the late 1990s,
when external pressure from international Jewish organizations and the United States
succeeded in getting the countries to establish new truth bodies (mostly composed of
historians) that would investigate both the Holocaust and Soviet repression in these states.
Although each of the Baltic commissions was distinctive in terms of its composition and
its operating style, they were all tasked with helping to identify both perpetrators and
victims during the half-century of foreign rule in these countries.25
By contrast, the Presidential Commission for the Analysis of the Communist
dictatorship in romania was established much later (in 2006) and was a more political
body aimed at discrediting the former Ceaușescu regime in the face of repeated returns
to power by ex-communist parties during the 1990s and early 2000s. The commission’s
final report constituted an extensive investigation into the inner workings of both the
erstwhile secret police, the Securitate, and the communist party, arriving at the conclusion
that in many respects the regime had committed “genocide.” Nevertheless, the public
158 VELLo PETTAI ANd EVA-CLArITA PETTAI
impact of the commission and its report was limited, with few of its recommendations
ever implemented.26
Far more successful was the 2003–2004 International Commission
on the Holocaust in romania, led by Elie Wiesel. Its final report contributed to much
more public awareness, including the creation of a Holocaust commemoration day.
In many respects, the most direct pathway to truth revelation came through the
opening of former regime archives, both in relation to former wrongdoers and their
victims. The most innocuous version of this approach was to allow individuals to see
whatever information the former secret services had collected personally to them. This
was often of importance to those who had been repressed, arrested, or deported. While
the names of former security agents or other related individuals would usually be blacked
out, it would still be possible for citizens to discover what the regime had once thought
about them or undertaken against them. The pioneer in this kind of openness was
Germany, where the Stasi-Unterlagenbehörde organized free access to almost all of the
former Gdr’s secret files for anyone interested in viewing them.
At the same time, any kind of transparency in terms of former secret archives often
brought stark public conflicts when insufficient systems had been put in place for lustration.
A case in point was Slovenia, where lawmakers failed to pass lustration legislation in
1997 and just a few years later a Slovene diplomat, dušan Lajovic, made public on the
internet a database of more than one million files from the Slovene branch of the Yugoslav
secret police, the UdBA. Yet, because the files were simply a listing of all individuals who
had ever come under the agency’s purview (including common criminals), it was impossible
to tell whether any single person named in the files had actually had a more specific or suspect
relationship to the UdBA. Needless to say, names of prominent members from almost
all of Slovenia’s political parties turned up in the database, and this prompted an archetypal
round of finger-pointing among the politicians. However, what is relevant here is the phenomenon
of mass release of archival documents. For, a similar episode occurred in Poland,
when, in February 2005, journalist Bronisław Wildstein released online a list of 240,000
people allegedly linked to the former secret services. In order to get a better handle on
these potential leaks, the Lithuanian Genocide and resistance research Center decided to
publish, on its own, historical files from the Lithuanian KGB dating back to the 1940s and
1950s. Latvia likewise decided to make its available KGB documents public in May 2018,
but only after a commission of academics and experts had reviewed all of the materials.
A related question to all of this was, of course, who was taking care of the files and
what kinds of government agencies have been developed more broadly to examine the
communist past? Scholars have begun to comparatively analyze these organizations,
finding that many of them are extremely broad in their functions and tasks.27
Not only are
many involved with facilitating access to files or organizing commemorative activities, but
they may also be called upon to verify lustration processes, certify rehabilitation claims,
or provide prosecutors with archival evidence for criminal trials against communist-era
officials. The Institute of National remembrance in Poland, known under its Polish
abbreviation IPN, is a vivid example, as it has departments not only for historical research
and national education, but also for vetting government officials and for “the prosecution
of crimes against the Polish nation.” It has more than a dozen regional offices
and delegations, totaling more than a thousand employees. Likewise in Lithuania, the
Genocide and resistance research Center is involved in all aspects of transitional justice
TrANSITIoNAL JUSTICE ANd MEMorY 159
and memory work. Meanwhile, almost all the countries of the region have prominent
museums portraying the history of the communist period, be it the House of Terror in
Budapest, the occupation Museum in riga, or the Sighet Museum in romania.
It is, therefore, no surprise that these commemorative efforts have increased particularly
during the 2000s, since the process of dealing with the communist past has begun
to shift from direct transitional justice policies and measures to a much wider and often
more diffuse process of national memory construction. To be sure, memory debates
have been present in the region since the early 1990s, while controversies over certain
politicians’ communist pasts will surely arise again in the future. However, the broad
proportion of these phenomena has slowly begun to invert.
Social Memory, Master Narratives, and
“Memory Wars”: New and Old Battlegrounds
“Memory” is a term whose use has grown exponentially in the social sciences over the last
two decades. It can be deceptive, however, in the sense that it no longer tends to mean
only what people remember in their mind, but also what entire nations see as their history
or their self-perceptions of who they are in historical terms. It is, therefore, often very
difficult to pin down what is studied under “memory” and, by extension, the “politics of
memory.” For our purposes, we will examine this phenomenon as it relates to transitional
justice. In many respects, the two are comparable: the kinds of truth and justice measures
that a nation seeks will depend on how people view the past repression of a regime. So,
in a sense, memory molds transitional justice. If the regime was seen as being soft (as is
often said of Hungary), less transitional justice will be needed. At the same time, transitional
justice measures can also begin to craft national memory when lustration laws,
for instance, begin to reveal just how many people were involved with the old system, or
when historical commissions are tasked to form an official assessment of a certain event.
Even courts are part of national memory construction when they issue verdicts in relation
to former regime perpetrators and thereby hand down a kind of judicially certified version
of repression history.
In this section, we will therefore study how transitional justice and memory are often
intertwined. We will look at how memory issues were present already at the beginning of
the democratic transitions, but also at how they have grown in importance, as the communist
era has itself become more distant history. Measures that are, formally speaking, part of
transitional justice increasingly have an effect on crafting historical understandings as well,
in particular for younger generations who have had less or no personal experience under the
communist regime. As the thirtieth anniversary of the collapse of communism approaches,
there is debate not only about what communism once was, but also about how it collapsed
and who played what role in that process. Indeed, even the first elements of transitional
justice undertaken in the 1990s are slowly becoming subject to memory contestation.
When we go back to the heady days of 1989, we see that memory was already
very much at the forefront of the democratic revolutions, accentuating the wide array
of other grievances against the regimes with respect to failed economic performance,
Photo  6.2. The Three Crosses Monument, also known as the Solidarity Monument,
was put up in December 1980 after the Solidarity Trade Union had been legalized. It
commemorates the shipyard workers killed during the 1970 shipyard workers’ strikes
when the government attacked the striking shipyard workers as they marched outside
the shipyard.This monument is now at the entrance to the Solidarity Center in Gdansk.
(Aurora Zahm)
TrANSITIoNAL JUSTICE ANd MEMorY 161
environmental devastation, or social alienation. Long neglected or silenced experiences of
the early communist period, including occupation, mass arrests, extrajudicial executions,
deportations, and show trials, poured into the open and stoked a large part of the rejection
of the communist regimes once liberalization occurred in the mid-1980s. In Poland,
stories about the mass shooting of officers by the Soviets in Katyń had been part of
family narratives and later dissident political activities ever since the 1970s. In the Baltic
states, details slowly emerged about the scope and significance of having lost independent
statehood in 1940 and then being subjected to Stalinist deportations. For Czechoslovakia,
the fateful dates of 1938, 1948, and 1968 became rallying cries of the Velvet revolution
and served as an important empowerment for those calling for change.
Yet, historical memory also emerged as a divisive element in these turbulent times
of regime change. The most ominous case was the former Yugoslavia where the ideas
and symbolism of the Serbian Chetnik and Croatian Ustasha extreme-right organizations
experienced a revival and provided nationalists with “weapons of destruction” to fuel
already simmering interethnic tensions in the region.28
Likewise, reemergent memories of
interethnic violence and of forced resettlement after border shifts between, for example,
Poland and its neighbors Lithuania and Ukraine had potentially destructive power.
The question of how to remember the history of a twentieth century that had been
in an ideological straightjacket for decades was thus crucial and highly political in the
postcommunist processes of democratization and state-building. Through public commemoration,
the rewriting of textbooks, the renaming of spaces and streets, the creation
of new museums, and numerous other acts, these countries sought to reclaim power over
their recent history. The outcome of this process was generally a past reframed into one of
national victimization and oppression. on the one hand, this narrative served an important
political purpose of providing a sense of unity in times of economic hardship and
political instability. It helped to get over some of the social atomization that the communist
regime had promoted and developed a sense of purpose as the countries faced a new
era of rebuilding. At the same time, it often swung the pendulum of national memory
very starkly in a nationalist direction, to the chagrin of not only certain minority groups
in these same countries but also more broadly in Europe and internationally. A recent
example could be witnessed in Ukraine, where decommunization legislation in 2015 led
to the dismantling of Soviet-era monuments, street renaming, and a rather aggressive
rewriting of World War II history.
one of the most blatant memory tools at the disposal of states is to adopt laws criminalizing
the denial, condoning, or gross trivialization of certain historical events. While
such laws have long existed in many European countries in relation to the Holocaust,
a number of Central and East European nations have complemented this domain with
so-called “memory laws” (lois mémorielle) concerning Stalinism and communism. Hence,
Poland incorporated within its 1998 law creating the IPN, a provision allowing for up to
three years of imprisonment for “anyone who publicly and contrary to the facts denies”
communist and Nazi crimes (Art. 55). The Czech republic issued a similar law in 2001,
as have Slovenia, Latvia, and Lithuania. In addition, some countries (Lithuania, Poland,
Hungary, and romania) have sought to ban the public display of communist symbols
such as the hammer and sickle (alongside the swastika).
162 VELLo PETTAI ANd EVA-CLArITA PETTAI
Another element worth noting in relation to memory processes (and in partial contrast
to transitional justice) is that they have not always been top-down or imposed by government.
Nonstate actors have also been instrumental in fostering public memorialization
of the entire communist era as criminal. In the Baltic states, and especially in Lithuania,
former deportees and repressed people constituted a strong voice in the national conservative
political camp, seeking to advance a staunch anti-communist narrative of national
suffering and heroism through education and other public activities. Moreover, one such
nonofficial activity involved organizing international public tribunals that would feature
legal experts from different countries who would reexamine the crimes committed by the
regimes and evaluate communist ideology from a legal perspective. The first such tribunal
took place in Vilnius in 2000, organized by civil society organizations and supported
by several public figures, resulting in a “judgment” that would condemn communism
as a criminal doctrine responsible for, among other things, genocide and crimes against
humanity. A similar citizen tribunal was held in 2006 in Cluj, romania. Although these
bodies lacked any formal legal standing, they sought to use the terminology of international
criminal and humanitarian law in order to influence national narratives of the
communist regime and of national victimization.29
Yet, delving into the past has meant not only revealing communist regime crimes,
but also shedding new light on the mass killing of Jews and other minorities during the
war in this region that Timothy Snyder would later term the “bloodlands” of Europe.
Already in the early 1990s, the emerging master narratives of national victimhood and
the overarching tendency in public commemoration and historical writing to externalize
responsibility for any past wrongdoing clashed with tales of local collaboration
with Nazi perpetrators, of locally initiated anti-Jewish pogroms, and of killing squads
involved in the mass shooting of civilians, especially Jews. In some cases, the realization
of long-neglected historical truths about local complicity in the extermination of
Jewish life in the region gave birth to painful, yet ultimately healthy, public debate and
national introspection. Thus, the debates and new research following the 2001 publication
of Jan Gross’s book about the killing of Jews in Jedwabne by their Polish neighbors
constituted a genuine shift in Polish perceptions of the German occupation period.
However, certain historical revelations as well as outside accusations against individual
states voiced by international actors, such as the Simon Wiesenthal Centre, also provoked
resistance among local populations, and the ensuing public debates and political rhetoric
revealed that many anti-Semitic myths and stereotypes still existed in societal discourses.
Moreover, the preoccupation of Western historians and state officials with the history
and memory of the Holocaust and its local collaborators was perceived by many East
European politicians and intellectuals as, at best, ignorant, and, at worst, negligent of
the suffering that had been inflicted on the region by Stalin. Scholars of European and
transnational memory have thus come to talk of “memory wars” (Etkind) and of “battleground
Europe” (Leggewie), at the center of which they see the history and memory of
the Holocaust and the Gulag pitted against each other in an unfortunate competition of
collective victimhood that held little value for advancing knowledge and awareness about
the history of World War II and its aftermath of state violence.30
With the enlargement of the EU and the direct incorporation of Central and Eastern
Europe into European politics, memory was transposed further onto the pan-European
TrANSITIoNAL JUSTICE ANd MEMorY 163
level. After 2004, many of the national historical research institutes that had been
involved in transitional justice along with a number of related history museums teamed
up into a novel set of memory agents, who would begin appearing at EU-sponsored
conferences and hearings, lobbying for European parliamentarians to acknowledge the
criminal character of the communist regimes.31
In particular, Baltic, but also Hungarian,
Czech, and Polish, members of the European Parliament were at the forefront of lobbying
their colleagues to pass legislation or adopt resolutions that would condemn communism
and call for Europe-wide commemoration. Eventually, the parliament adopted a pair of
resolutions in which the crimes of Stalinism were condemned and remembrance pledged.
The latter included the creation of a “European day of remembrance for Victims of
Stalinism and Nazism” on August 23, the day of the signing of the so-called Molotovribbentrop
Pact in 1939 that divided up Eastern Europe between the two dictators.32
The
EU has also financed a number of NGo projects and networks related to commemoration
such as the “Platform of European Memory and Conscience.”
A second memory-related phenomenon that seemed to kick in around the 2000s
was a more anthropological notion of communist nostalgia. The concept gained currency
in political science as scholars sought to explain how ex-communist parties in many
countries were returning to power in open elections. Later, it became an explanation
for the rise of populist parties, with the conclusion being that voters were nostalgically
looking for a return to social equality and order. Among other social scientists (and, in
particular, social anthropologists), the study of nostalgia was embedded in the notion of
postsocialism and examined memories of past everyday life. Especially among older age
cohorts as well as in countries that had experienced more liberal forms of communist
rule, such as in the former Yugoslavia and Hungary, a sense of “not everything was bad”
seemed to exist. Yet, as numerous studies of communist nostalgia have pointed out, it is,
in fact, rarely the case that people yearn for the return of the old communist system as
such; rather, it has been an expression of their dissatisfaction with existing socioeconomic
conditions and their perceived lack of equality in society. In this sense, nostalgia is but a
label referring to what Velikonja has called “retrospective utopia”—a notion of a better
life that is as much a projection into the past as it is into the future.33
Finally, with time elapsing since the end of communism and the triumph of the
democratic revolutions, the memories of that particular period have themselves become
an object of contestation. In some countries, the contrasting narratives of that period continue
to have a strong hold on the political landscape, as partisan leaders on the right try
to frame the negotiated transitions of the late 1980s, for example in Hungary and Poland,
as a betrayal of the nation by the liberal elites of that time. Thus, the 2005 lustration campaign
by the Polish Law and Justice Party was less about actually changing or expanding
an already existing law than it was about framing the liberal political elite of the country
as corrupted by former communists. In romania, memories of the 1989 overthrow of
Ceaușescu and the subsequent takeover by a second tier of communist elites remain
contested and reappear in the political discourse especially during elections. Hence, the
way in which 1989/1991 is being publicly remembered tells us a lot about not only
party-political cleavages, but also deeper cultural and structural undercurrents that define
social and political life in this part of the world.34
Politics in most of the countries that
experienced peaceful revolutions in 1989 and 1991 is extremely polarized, or “fractured,”
164 VELLo PETTAI ANd EVA-CLArITA PETTAI
as political elites seem to be split along seemingly irreconcilable narratives of the not so
distant past. Indeed, much of the populist rhetoric of the so-called illiberal leaders in the
region (such as Poland’s Jarosław Kaczyński, Hungary’s Viktor orbán, or Slovakia’s robert
Fico) builds on a narrative of the “incomplete revolution of 1989” and on allegations of
national treason committed by the liberal, cosmopolitan elites of the early 1990s.
Conclusion
Studying politics in Eastern Europe involves examining and renaming multiple, successive
layers of political development and change. The post-1945 period of communist rule is, of
course, an essential starting point, but so are the subsequent regime transition, the institutionalization
of democratic politics, the challenges of EU accession, and now, in some
cases, the dangers of democratic backsliding. Transitional justice and memory politics fit
into this landscape as accompanying processes aimed at establishing an understanding
of what happened during communist rule as well as what to do about that afterward.
The two phenomena begin with an overarching aspiration to bring some kind of “truth”
and “justice” to this repressive past. This is why these two terms are frequently used as
synonyms for everything that had to do with coming to terms with the past. However,
it is clear that these two goals are, at best, very ambiguous, if not to say subjective. No
matter how hard societies may try to work out different degrees of accountability and/or
develop adequate forms of reparation, there will always be uncertainty about whether the
full truth has been established or justice really achieved. This explains why transitional
justice can also be a protracted and recurring political issue. There will probably never be
a moment where all people agree that these two processes have been completed and that
the books can indeed be closed. rather, these issues remain hanging in the air, open for
attachment to additional political or economic grievances, as we saw with the discussion
of communist nostalgia or when making sense of the rise of Viktor orbán in Hungary or
the Kaczyńskis in Poland. Truth and justice are therefore inherently slippery phenomena,
since they are largely in the eye of the beholder. As political analysts, we can, at best, try
and sort out the different dimensions of this wide-ranging process. But full explanations
are difficult to come by, given precisely the way truth and justice were intertwined and
interact with so many other political strategies and societal issues.
Still, given that some countries have clearly engaged in greater degrees of transitional
justice and memory politics than others, scholars have offered different accounts as to
why this might be so.35
Some point to differing communist-era historical legacies with
regard to regime legitimacy as explanatory variables. Thus, in some cases, like Hungary or
ex-Yugoslavia, the regimes introduced economic reforms that allowed for certain freedoms
already long before the 1980s. In other cases, such as Poland or even Soviet-Lithuania,
local communist elites managed to pursue successful “national communist” strategies,
thereby making it feel like the communist period had perhaps not been so divisive or
fracturing as to warrant extensive transitional justice.
A second explanatory level looks at how more conciliatory modes of regime transition
itself led to differing degrees of interest in “pursuing justice” during subsequent years.
The more negotiated the precise transition, the less radical the transitional justice process
would be—not only because of a certain degree of societal reconciliation, but also because
TrANSITIoNAL JUSTICE ANd MEMorY 165
elites from the previous regime would continue to be part of the political process and
could tamp down impulses for transitional justice. So, the Czech republic, which had a
very abrupt break with the former regime, also had the most decisive array of transitional
justice policies, while Poland and Hungary (with their roundtable talks during the transition)
opted for milder measures vis-à-vis the past. Third, patterns of doing transitional
justice have also been influenced by states’ constitutional arrangements (such as the role of
popularly elected presidents or the power of constitutional courts) as well as driven by the
politics of the moment (electoral conflicts, institutional power games, or other political
policy decisions). In other words, irrespective of prior influences, the communist past has
sometimes been simply a political football for different political actors, and this too has
caused the process of transitional justice and memory to ebb and flow over the last three
decades. This is the framework that best explains later waves of transitional justice such as
when countries decide to toughen their lustration laws or expand victim benefits. It also
increasingly accounts for when memory politics comes to the fore in political discourses
and mobilization strategies.
All of this goes to show that transitional justice needs to be studied not only across
countries, but also over time. Not only have countries differed in comparison to each
other, they have also gone up and down in terms of their preoccupation with these issues
over the years. This makes finding a single approach to the phenomenon almost impossible.
Everything depends on the type of comparison that is chosen. Moreover, as this
chapter has sought to demonstrate, “transitional justice” as such is in reality a composite
of at least three levels of policy adopted in response to either perpetrators or victims,
enacted either right after a democratic transition or many years later, and aimed at
redressing repressive acts committed toward the end of the former regime or going back
many decades beforehand. All of these dimensions are important to map out before more
specific analysis can begin.
Likewise, scholars have reflected on whether transitional justice has any kind of
downstream effect on other democratic processes.36
That is to say, apart from the moral
ambitions of transitional justice (to achieve “truth” and/or “justice”), we can also ask
whether transitional justice helps to improve elite political culture, respect for rule of law,
trust in political institutions or democratic values in society. research in this area has been
inconclusive, since transitional justice is unlikely to be the sole explanatory variable for
these phenomena. For example, low or high levels of trust in political institutions may be
caused by other factors such as policy performance or levels of corruption. Nevertheless,
this perspective on transitional justice is an important one, since it asks the broader
question of what transitional justice is good for.
Finally, we have seen that transitional justice is increasingly blended with and perhaps
even superseded by memory politics, since political contests are more and more about
how society will remember and perceive the communist era and less about how to deal
with recent crimes. Perspectives have begun to shift from how to deal with the past to
how that past was dealt with. This does not imply that this debate will become wholly
historical or only among historians, any more than this has happened with, say, questions
of slavery and the Civil War in the United States or the Holocaust and World War II in
Germany. Politics remain a crucial element in these debates, since it will influence how
each nation crafts its historical identity. If communism is remembered primarily as victimhood
(as many conservative parties would like), this will influence not only certain
166 VELLo PETTAI ANd EVA-CLArITA PETTAI
domestic political orientations but also relations with the rest of Europe in terms of a
desire to continue recasting broader European historical identity. If other, more varied
narratives emerge, this may relativize the place that communist and transitional justice
will hold in Central and East European politics.
Study Questions
1. What forms and dimensions of transitional justice can we find in Central and Eastern
Europe?
2. What controversies and problems have emerged after transitional justice measures
have been implemented?
3. How do you think communism should be remembered in the national memories and/
or histories of the countries of Central and Eastern Europe?
4. What relevance do these stances have for today’s political development in the region?
Suggested Readings
Assmann, Aleida, and Linda Shortt, eds. Memory and Political Change. London:  Palgrave
Macmillan, 2012.
Blacker, Uilleam, Alexander Etkind, and Julie Fedor, eds. Memory and Theory in Eastern Europe.
London: Palgrave Macmillan, 2013.
Koposov, Nikolay. Memory Laws, Memory Wars:  The Politics of the Past in Europe and Russia.
Cambridge: Cambridge University Press, 2017.
Lebow, richard Ned, Wulf Kansteiner, and Claudio Fogu, eds. The Politics of Memory in Postwar
Europe. London: duke University Press, 2006.
Müller, Jan-Werner, ed. Memory and Power in Post-War Europe: Studies in the Presence of the Past.
Cambridge: Cambridge University Press, 2003.
Nalepa, Monika. Skeletons in the Closet. Transitional Justice in Post-Communist Eastern Europe.
Cambridge: Cambridge University Press, 2010.
Nedelsky, Nadya. “divergent responses to a Common Past:  Transitional Justice in the Czech
republic and Slovakia.” Theory and Society 33, no. 1 (2004): 65–115.
Pakier, Malgorzata, and Bo Strath, eds. A European Memory? Contested Histories and Politics of
Remembrance. New York: Berghahn Books, 2010.
Pettai, Vello, and Eva-Clarita Pettai. “dealing with the Past: Post-Communist Transitional Justice.”
In Routledge Handbook of East European Politics, edited by Adam Fagan and Petr Kopecky.
London: routledge, 2017.
Teitel, ruti G. “Transitional Justice Genealogy.” Harvard Human Rights Journal 16 (2003): 69–94.
Notes
1. Because of our focus on postcommunist transitional justice, we will not cover in this chapter
transitional justice processes related to the ethnic (or civil) war in many parts of former Yugoslavia.
While it is true that a number of the truth and justice measures that have been undertaken vis-à-vis
TrANSITIoNAL JUSTICE ANd MEMorY 167
these conflicts (such as legal trials against war criminals or the memorialization of victims) are similar
to the measures we outline here, in many instances they have also been linked to international
criminal law (the International Criminal Tribunal for the former Yugoslavia, ICTY) or they have
become internationalized political issues (serving as conditionality elements for European Union
accession). The type of postcommunist transitional justice that we examine here (i.e., in relation to
former communist leaders and the former communist regime) has been very limited in countries
such as Croatia, Serbia, Macedonia, or Bosnia-Herzegovina.
2. ruti G. Teitel, Transitional Justice (New York: oxford University Press, 2000).
3. In Slovenia, too, resurgent center-right parties tried to pass different transitional justice
measures in the late 1990s, but each time they failed to get a requisite majority in parliament.
4. Claus offe, “Coming to Terms with Past Injustices,” European Journal of Sociology 33, no. 1
(1992): 195–201; Neil J. Kritz, “The dilemmas of Transitional Justice,” in Transitional Justice: How
Emerging Democracies Reckon with Former Regimes. General Considerations, ed. Neil J.  Kritz
(Washington, dC: US Institute of Peace Press, 1995), 1: xix–xxx; and Noel Calhoun, Dilemmas of
Justice in Eastern Europe’s Democratic Transitions (New York: Palgrave Macmillan, 2004).
5. Jon Elster, Closing the Books: Transitional Justice in Historical Perspective; and Muriel Blaive,
“The Czechs and Their Communism, Past and Present. In Inquiries into Past and Present,” in
IWM Junior Visiting Fellows’ Conferences, Vol. 17, ed. d. Gard et al. (Vienna: IWM, 2005).
6. Frigyes Kahler, “Communist Terror in 1956 and the rule of Law,” Hungarian Review 4,
no. 1 (2013): 49–62.
7. See also roman david, “From Prague to Baghdad: Lustration Systems and Their Political
Effects,” Government and Opposition 41, no. 3 (2006): 347–72. For an explanatory model of lustration
based on institutional rules and strategic interaction, see Monika Nalepa, “The Institutional
Context of Transitional Justice,” in Routledge Handbook of Comparative Political Institutions, ed.
Jennifer Gandhi and ruben ruiz-rufino (oxon: routledge, 2015), 389–403.
8. Mark S.  Ellis, “Purging the Past:  The Current State of Lustration Laws in the Former
Communist Bloc,” Law and Contemporary Problems 59, no. 4 (1997): 181–96; and robert C. Austin
and Jonathan Ellison, “Albania,” in Transitional Justice in Eastern Europe and the Former Soviet
Union: Reckoning with the Communist Past, ed. Lavinia Stan (London: routledge, 2009), 176–199.
9. Eva-Clarita Pettai and Vello Pettai, Transitional and Retrospective Justice in the Baltic States
(Cambridge: Cambridge University Press, 2015).
10. For accounts regarding the Polish case, see Matt Killingsworth, “Lustration after
Totalitarianism: Poland’s Attempt to reconcile with Its Communist Past,” Communist and PostCommunist
Studies 43, no. 3 (2010): 275–84.
11. Cynthia Horne, “‘Silent Lustration’: Public disclosures as Informal Lustration Mechanisms
in Bulgaria and romania,” Problems of Post-Communism 62, no. 3 (2015): 131–44.
12. Cynthia M. Horne, “Late Lustration Programmes in romania and Poland: Supporting or
Undermining democratic Transitions?” Democratization 16, no. 2 (2009): 344–76; and Kieran
Williams et al., “Explaining Lustration in Central Europe: A ‘Post-Communist Politics’ Approach,”
Democratization 12, no. 1 (2005): 22–43.
13. roman david and Susanne Y.  P. Choi, “Victims on Transitional Justice:  Lessons from
the reparation of Human rights Abuses in the Czech republic,” Human Rights Quarterly
27, no.  2 (2005):  392–435; and Lavinia Stan, Transitional Justice in Post-Communist Romania
(Cambridge: Cambridge University Press, 2013).
14. The issue of reparations for Soviet-era damages remains a highly contentious issue in Balticrussian
relations. Both Latvia and Lithuania have put together detailed compensation claims to
the russian Federation, something that Moscow has dismissed outright.
15. Csilla Kiss, “Hungary,” in Encyclopedia of Transitional Justice, ed. Lavinia Stan and Nadya
Nedelsky (Cambridge: Cambridge University Press, 2013), 2: 230–6.
168 VELLo PETTAI ANd EVA-CLArITA PETTAI
16. Mark Blacksell and Karl Martin Born, “Private Property restitution:  The Geographical
Consequences of official Government Policies in Central and Eastern Europe,” Geographical
Journal 168, no. 2 (2002): 178–90; Lynn M. Fisher and Austin J. Jaffe, “restitution in Transition
Countries,” Journal of Housing and the Built Environment 15, no. 3 (2000): 233–48; and Csongor
Kuti, Post-Communist Restitution and the Rule of Law (Budapest:  Central European University
Press, 2009).
17. In this subsection, we will concentrate on declarations that specifically condemn a country’s
former communist party or ruling elite as opposed to communism as an ideology or social system.
Given the distinction we are seeking to make between transitional justice and memory, we see the
denunciation of former rulers as part of the former, while the censure of communism is seen as the
latter.
18. Full text in Neil J.  Kritz, Transitional Justice:  How Emerging Democracies Reckon with
Former Regimes. Laws, Rulings, and Reports (Washington, dC: US Institute of Peace Press, 1995),
3: 428–31.
19. Nadya Nedelsky, “Czechoslovakia, and the Czech and Slovak republics,” in Transitional
Justice in Eastern Europe and the Former Soviet Union:  Reckoning with the Communist Past, ed.
Lavinia Stan (London:  routledge, 2009), 37–75. National Assembly of Bulgaria, “Law on
declaring the Criminal Nature of the Communist regime in Bulgaria,” May 5, 2000.
20. Tamara Kotar, “Slovenia,” in Transitional Justice in Eastern Europe and the Former Soviet
Union: Reckoning with the Communist Past, ed. Lavinia Stan (London: routledge, 2009), 200–21.
21. Latvijas republikas Saeima, “deklarācija ‘Par Latvijas okupāciju,’” August 22, 1996.
22. Timothy Garton Ash, “Trials, Purges and History Lessons: Treating a difficult Past in PostCommunist
Europe,” in Memory and Power in Post-War Europe: Studies in the Presence of the Past,
ed. Jan-Werner Müller (Cambridge: Cambridge University Press, 2002), 265–82.
23. Lavinia Stan, “Truth Commissions in Post-Communism: The overlooked Solution?” Open
Political Science Journal 2 (2009): 1–13.
24. Vello Pettai, “State Commission for the Examination of repressive Policies Carried out
during the occupations,” in Encyclopedia of Transitional Justice, ed. Lavinia Stan and Nadya
Nadelsky (Cambridge: Cambridge University Press, 2013), 161–167.
25. Eva-Clarita Pettai, “Negotiating History for reconciliation: A Comparative Evaluation of
the Baltic Presidential Commissions,” Europe-Asia Studies 67, no. 7 (2015): 1079–101.
26. Monica Ciobanu, “Criminalising the Past and reconstructing Collective Memory:  The
romanian Truth Commission,” Europe-Asia Studies 61, no. 2 (2009): 313–36; and Alina Hogea,
“Coming to Terms with the Communist Past in romania: An Analysis of the Political and Media
discourse Concerning the Tismăneanu report,” Studies of Transition States and Societies 2, no. 2
(2010): 16–30.
27. Georges Mink, “Institutions of National Memory in Post-Communist Europe:  From
Transitional Justice to Political Uses of Biographies (1989–2010),” in History, Memory and
Politics in Central and Eastern Europe: Memory Games, ed. Georges Mink and Laure Neumayer
(Basingstoke, NY: Palgrave Macmillan, 2013), 155–70.
28. Ilana r. Bet-El, “Unimagined Communities: The Power of Memory and the Conflict in
Former Yugoslavia in Memory and Power,” in Post-War Europe: Studies in the Presence of the Past,
ed. Jan-Werner Müller (Cambridge: Cambridge University Press, 2002), 206–22.
29. Anti-Communist Congress and Proceedings of the International Public Tribunal in Vilnius
“Evaluation of the Crimes of Communism” 2000 (Vilnius:  ramona, 2002); and Lavinia Stan,
Transitional Justice in Post-Communist Romania (Cambridge: Cambridge University Press, 2013).
30. Alexander Etkind et  al., Remembering Katyn (Cambridge:  Polity Press, 2013). Claus
Leggewie, “Battlefield Europe:  Transnational Memory and European Identity,” Eurozine (April
28, 2009), http://www.eurozine.com/battlefield-europe; and Aleida Assmann, “Transnational
Memories,” European Review 22, no. 4 (2014): 546–56.
TrANSITIoNAL JUSTICE ANd MEMorY 169
31. Georges Mink, “Institutions of National Memory in Post-Communist Europe:  From
Transitional Justice to Political Uses of Biographies (1989–2010),” in History, Memory and
Politics in Central and Eastern Europe: Memory Games, ed. Georges Mink and Laure Neumayer
(Basingstoke: Palgrave Macmillan, 2013), 155–70; and Laure Neumayer, “Integrating the Central
European Past into a Common Narrative: The Mobilizations around the ‘Crimes of Communism’
in the European Parliament,” Journal of Contemporary European Studies 23, no. 3 (2015): 344–63.
32. While all of the Central and East European members of the EU have adopted this day onto
their national calendars, only Sweden has taken the date on board among West European countries.
33. Mitja Velikonja, “Lost in Transition: Nostalgia for Socialism in Post-Socialist Countries,”
East European Politics & Societies 23, no. 4 (2009): 535–51. See also Joakim Ekman and Jonas
Linde, “Communist Nostalgia and the Consolidation of democracy in Central and Eastern
Europe,” Journal of Communist Studies and Transition Politics 21, no.  3 (2005):  354–74; and
Maria Nikolaeva Todorova and Zsuzsa Gille, Post-Communist Nostalgia (New  York:  Berghahn
Books, 2010).
34. Michael Bernhard and Jan Kubik, eds., Twenty Years after Communism:  The Politics of
Memory and Commemoration (New York: oxford University Press, 2014).
35. For a good overview of explanatory models for transitional justice, see Lavinia Stan,
“Conclusion: Explaining Country differences” in Transitional Justice in Eastern Europe and the
Former Soviet Union: Reckoning with the Communist Past, ed. Lavinia Stan (New York: routledge,
2009), 247–70.
36. Cynthia M. Horne, “Assessing the Impact of Lustration on Trust in Public Institutions and
National Government in Central and Eastern Europe,” Comparative Political Studies 45, no.  4
(2012): 412–46; see also the chapters by Lynch and Marchesi and by david in Post-Communist
Transitional Justice:  Lessons from Twenty-Five Years of Experience, ed. Lavinia Stan and Nadya
Nedelsky.