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Interview with Professor Lavinia Stan: The Romanian example has shown that demands for radical accountability can lead to a situation in which hardly any account settling occurs.

Andrzej Stankiewicz: What is transitional justice, especially in our part of Europe?

Lavinia Stan: This is an attempt to settle accounts with the legacy of a dark and gloomy past. The countries of our part of Europe have had a difficult Nazi and communist past. In Romania, this included crimes committed during the revolution, and in former Yugoslavia – during the civil war.

But this is an entirely different fate, a different kind of gloom. Does any common denominator, therefore, exist when it comes to settling accounts with the past?

There are practices and processes that have been common to nearly all the region's countries. It is another matter whether this has resulted from a mutual flow of ideas or taken shape independently. Those common areas pertain to politics, public debate and the legal situation. In most cases account settling has involved judicial proceedings. Access to secret police files was provided. The issue of restitution of illegally taken-over property emerged, although at times little has come of it, as in Poland's case.

Our region's specific feature has been vetting – one of the most controversial instruments of justice in the transformation period. Another important phenomenon has been memorialisation – the destruction of some monuments and their replacement with others, as well as a change of symbols and street names.

You are studying the influence of civil society on account settling with totalitarian systems, and focus on the perspectives of three different groups: victims, the intellectual elite and the totalitarian elite (‘nomenklatura’).

Nearly everyone wants to regard themselves as victims of the former system. But not all of us were victims. Most people supported the dictatorship through their passivity. But how many people of my generation will admit it?

Each of these groups – true victims, the system's dignitaries and intellectuals – perceive justice of the transformation period differently. Let's take Romania. Victims demanded radical vetting, putting secret informers of the Securitate on trial and sacking them from their jobs. To people wronged by the regime, vetting regulations were never sufficiently severe. They wanted to entirely eliminate people of the ancien régime from public life. Punishing collaborators became a symbol of justice to them. Such demands emerged soon after the collapse of the dictatorship of Nicolae Ceauşescu in the Timişoara Proclamation of 1990. These, of course, were never fulfilled by the political class, which in Romania was in a large part rooted in the former Communist Party.

In Poland the former democratic opposition was divided to a greater extent. A portion of the right-wing politicians demanded vetting, whilst centre-left politicians were opposed.

In Romania such harsh rhetoric by the regime's victims resulted from the way the dictatorship was overthrown – in bloody revolution. We lacked ‘round-table’ talks. Because of the bloodshed, the regime's victims did not want dialogue with their former oppressors, and it boiled down to a case of ‘we or they’. At the same time, the Romanian example has shown that demands for radical accountability can lead to a situation in which hardly any account settling occurs.

You ascribe none too flattering a role to intellectuals, accusing them of agreeing to some measure of account settling while blocking attempts to bring the dictatorship to account.

In Romania intellectuals played a significant role because some of them were dissidents, whereas in our country there were few such people. We do not have a civil society; hence nothing like Solidarity ever arose in Romania. After the revolution, intellectuals became very influential. It was they who made public opinion aware of the demands on which accountability was based. But mindful of the victims, intellectuals always softened the demands.

Subsequently, it turned out that some of the intellectuals had a disreputable past by virtue of having collaborated with the regime. Intellectuals politicised account settling and diminished public support for transformation solidarity.

The third group comprised Communist Party dignitaries, people attached to special services and other beneficiaries of the former system. In most of the region's countries they retained significant influence on public and political life for years.

When I initially became involved with transitional justice, my research focused on groups advocating account settling. But in Romania, I saw a different situation with my own eyes.

One of the most vociferous groups were tenants residing in property that had been illegally taken from its former owners. To make things clear, these were not poor workers or rank-and-file hirelings of socialism, but representatives of the former regime's elite. Very quickly they organised themselves, acted very effectively and blocked the restitution of property to the heirs of their former owners.

They convinced politicians to legally safeguard their interests including the right to continued residence in flats confiscated during the communist era and their purchase in the event that their former owners had no heirs.

Perhaps there are countries in our region where transitional justice is only a pretence?

Even in Romania, which has done less in many areas than other Central European countries, there has been clear progress in the realm of transitional justice. In spite of everything, some real estate is being returned, and this process is far more advanced than in Poland. Restitution of the property of the biggest religious denomination, the Eastern Orthodox Church, as well as the Greek Catholic Church is moving forward.

Which country is the most advanced in terms of account settling?

The Czech Republic, Slovakia, Poland, Hungary and the Baltic states have done the most to settle accounts with the past. In Romania and Bulgaria there are regulations on the books enabling account settling, but life is what it is, and a great deal still needs to be changed. Albania and the post-Soviet countries of Central Asia have achieved the least.

What about Russia?

Russia is regressing compared to the Gorbachev era.

When will the administration of transitional justice be completed in our part of Europe?

It will not end as long as a significant portion of society continues to lodge claims that the authorities are unable to fulfil. In Poland, the question of property restitution must be resolved. This issue has far-reaching legal and financial consequences, and thus account settling with communism cannot be completed without resolving it. In Romania, authentic vetting continues to be a problem, Up until 2006, secret files were controlled by the new security services that were largely comprised of former Securitate officers, as there was no verification of special services in Romania. Access to these files continues to be limited. Please do not ask whether vetting makes sense this late in the game – this is an entirely different matter. However, the victims do need a symbol.

Do you support settling accounts with former Communist Party leaders by means of court proceedings?

I know that discussions are also under way in Poland as to whether a dictator who has peacefully handed over power should be absolved of his past transgressions. Personally, I believe dictators should be put on trial if there is evidence that they broke the law.

Interviewed by Andrzej Stankiewicz (Rzeczpospolita)

>>Professor LAVINIA STAN is a Romanian political scientist with books and articles to her credit. She is employed at the Centre for Post-Communist Studies at Canada's St Francis Xavier University. A year ago, together with Dr Nadya Nedelsky, she published the Encyclopaedia of Transitional Justice, the first comprehensive work devoted to the accountability of dictatorial regimes.

Settling accounts with Nazism and communism, even with apartheid and the dictatorships of South America has become a scholarly discipline in its own right. Its distinguished researchers met during a seminar in Warsaw.

By Andrzej Stankiewicz

Research on the mechanisms of what has come to be known as transitional justice got under way in earnest at the turn of the 1990s, when communism in Central-East Europe was headed for the dustbin of history.

Transitional justice is the broadly conceived settling of accounts with receding totalitarian systems, carried out by new democratic authorities. This goes beyond legal regulations alone such as bringing criminals to justice, and also involves social phenomena accompanying the collapse of regimes. At present, this field of study, touching on law, history and the social sciences, encompasses research on the consequences of the collapse of all the world's 20th-century dictatorships, including de-Nazification and de-communisation. It also involves vetting and access to regime files, rehabilitation of political prisoners and restitution of nationalised property.

Plaque with the word ‘murderer’

Researchers of transitional justice met in Warsaw at an international conference titled ‘Legal Frames of Memory. Transitional Justice in Central and Eastern Europe’ (27-29 November 2013). The conference was an element of the Genealogies of Memory project launched in 2011 and carried out by European Network Remembrance and Solidarity.

‘Genealogies of Memory is one of those important scholarly projects seeking to come to grips with the memory of Central-East European totalitarianism and the transformation period,’ said deputy culture minister Małgorzata Omilanowska while opening the conference. ‘The problem of justice and related legal issues are the key to understanding many processes taking part in the countries of our region.’

Does a single model of transitional justice for countries leaving dictatorships behind them exist? ‘The situation of each country is different, but there are similarities,’ said Professor Adam Czarnota, a legal expert who lectures at universities in Poland, Australia and Western Europe.

The professor has only just returned from Argentina, a country in the process of healing its wounds following the military dictatorship of the 1970s and 1980s. He shows a snapshot he took during a visit to Buenos Aires. It shows a yellow plaque with black lettering hanging on a roadside post, indicating that a ‘murderer’ lives in this house, a collaborator of the former military regime involved in crimes.

This is evidence of what can occur when transitional justice is lacking and victims take things into their own hands. From that perspective, how does he evaluate transitional justice in Poland? ‘Property restitution and penal accountability of representatives of the former regime is still needed,’ believes Professor Czarnota.

Symbols, not money

At the centre of transitional research, both victims and victimisers are studied following the collapse of a regime. According to researchers, there can be no talk of justice until the victims are rehabilitated and the state reimburses them for the losses they sustained at the hands of the dictatorship’s functionaries. Professor Christiane Wilke of Canada's Carleton University warned in Warsaw that justice not rooted in the rule of law can become distorted and deteriorate into revenge against victimisers.

Professor Mark Osiel of the University of Iowa called attention to the way of memorialising regime victims used by the Inter-American Court of Human Rights. Based in Costa Rica, it was set up in 1979 to settle accounts with Latin American regimes. ‘The Court seeks to restore the memory of victims by means of proper court rulings. It orders the rehabilitation of victims' memory by publicly honouring them and through apologies made by the state. It also orders changes in school textbooks,’ Osiel explained. ‘Latin America is perhaps making the greatest effort to change collective memory.’

The American professor called attention to yet another matter: research on transitional justice has shown that former victims regard financial assistance as improper and at times downright suspect. In his view, it is far better to honour victims symbolically.

An unquestioned authority on transitional justice, Osiel is the author of several fundamental works on the subject. He advised prosecutors in the case against Chilean dictator Augusto Pinochet and on the prosecution of genocide in Rwanda in 1994.

Generals to the barracks?

Researchers disagree as to whether prosecuting dictators who have given up power such as Pinochet and Jaruzelski is proper. ‘I recall the worldwide reaction to Pinochet's detention in London upon a motion of Spanish judge Baltasar Garzón in connection with murder and torture charges. Even former Polish dissidents such as Adam Michnik were opposed. Because it becomes known what your future holds when you lose power,’ Jiří Přibáň, a Czech professor from Cardiff University, explained.

Professor Adam Czarnota recalled that in May the leader of the Burmese opposition and Nobel Peace Prize laureate Aung San Suu Kyi told him they did not want to sentence the junta generals but only send them back to the barracks.

But all the discussion participants agreed that settling accounts with a regime looks different in every region of the world. It depends whether a system collapsed amid violent revolution, through the peaceful hand-over of power or – as in the case of Germany and Japan – resulted from a lost war. The latter instance was referred to by Professor Czarnota as ‘victor's justice’, as the victorious powers imposed their order on the vanquished.

According to Professor Czarnota, with the exception of the Baltic states, there has been no transitional justice in the countries of the former USSR. It is no coincidence that the churches of Western Christianity essentially dominate in countries where transitional justice processes have taken place.

Ukrainian Yaroslav Pasko form Donetsk State University admitted: ‘In Ukraine such social will is lacking. This is the result of an underdeveloped civil society. In our country there is no structure that promotes a departure from post-Soviet experiences and sentiments.’

Polish model in Tunisia

Conference participants set the countries of our region up as examples for states making the transition from dictatorship to democracy. Deputy justice minister Wojciech Węgrzyn emphasised that account settling in the countries of the former Eastern bloc has incurred smaller social and economic costs compared to states in, for example, Latin America.

Recently, Poland has even become something of an exporter of knowledge on ‘justice of the transformation period’. Last year, Polish NGOs, backed by the Foreign Ministry, organised training sessions devoted to justice in the transition period for Tunisians who have been trying to build democracy following the Jasmine Revolution at the turn of 2011.

While other Central European countries initiated lustration before Poland did, none consider it an entirely successful process.

Although more than two decades have passed since the collapse of communism, settling accounts with the old system is anything but complete. This is true regardless of the nature of the revolution: a ‘velvet’ one as in Czechoslovakia, negotiated as in Poland and Hungary or brutal and bloody as in Romania. The lack of complete and credible documentation is the most obvious reason almost everywhere. While the burning of the Polish secret police’s files in Pasikowski’s Pigs is only a movie scene, it is quite close to what actually happened. Developments in the other Soviet bloc countries were no different; just think of the piles of scattered documents filmed by Western journalists in the back yard of the demonstrator-occupied Stasi office in Leipzig.

Dossier game

There was a temptation to use more or less credible documentation against political opponents during the fight for power in post-communist countries, especially in the 1990s. As a consequence, lustration was deprived of its role in dealing with the past and instead created the impression of being a ‘dossier game’ serving the purposes of the powers that be. While in Poland these clashes are symbolised by the ongoing dispute regarding Lech Wałęsa’s past, almost all former Soviet bloc countries have had their share of alleged informers, including the Czechs, who were the first to initiate lustration, and the Germans with their apparently model lustration legislation and the so-called Gauck Office.

Countries, various groups and different institutions have all failed in conducting a complete and consistent lustration process. This includes churches, which the previous system attempted to fight (and infiltrate). Poland’s Catholic Church symbolically completed its lustration at the end of the previous decade but there were no major consequences. Elsewhere, for example in post-Soviet states, no attempts were made to conduct a credible lustration of the local Orthodox Churches. In Bulgaria, it was not until 2011 that the church hierarchy reluctantly agreed to lustration (not surprisingly since, as it soon turned out, the majority of synod members during communism had collaborated with the secret police).

Conducted soon after reunification, lustration in the former GDR was for a long time considered relatively complete. Germany, however, was different because the democratic legislation of West Germany was extended to the former German Democratic Republic, with all the consequences. Established in 1990, the Office of the Federal Commissioner for the Stasi Archives, with a staff of 1,600 (referred to as the Gauck Office after the first commissioner) is still very much in demand. Since 1992, two million people have requested access to the files. Initially the office was to continue until 2011, but the German parliament has extended this period by another eight years.

While the office has been relatively successful and has blocked the careers of former Stasi collaborators and agents at federal level, it has failed at state level in the east of the country. As an example, in Brandenburg’s Landtag every fourth left-wing (Die Linke party) MP has had a spell of what could be qualified as collaboration with the Stasi. Past informers have been found in the police and among Western politicians. In addition, some fifty people with a record of working for the secret services are employed at the Office for Stasi Archives and more than 500 work for various federal agencies. More than two decades into the process, some say that complete lustration in a country where every fiftieth citizen has had some contact with the secret political police is in fact impossible. What was Germany’s universally praised lustration process has turned out to be quite superficial, a claim made by Uwe Müller and Grit Hartmann, the authors of the book Vorwärts und Vergessen!.

Agents and confidants

The Czechs were the first among the former Soviet bloc countries to take lustration seriously, screening as early as 1989for StB (Security Service) agents and collaborators. Prior to the first free elections in June 1990, political parties could run checks on their candidates, thus blocking the political careers of many. Czechoslovakia’s new parliament adopted formal lustration laws in October 1991. One applied to all citizens and the other to those serving in uniformed services. If a person was proved to have collaborated with the communist secret police, they were excluded from posts in public administration, public offices, the army, police and state-owned enterprises.

Early on there were legal and interpretational problems. The Constitutional Court ordered a change in some of the clauses. It was found that some people described as ‘candidate’ or ‘confidant’ in secret service documents may not even have known that agents were using them as a source of information. Following their formal adoption, the lustration laws were to stay in effect for five years. However, just as in all the other postcommunist states, this was much too soon and it was clear that more time was needed. The lustration law in the Czech Republic has indefinite duration.

There were scandals involving people from the front pages. Many were prosecuted following the 1992 publication by journalist Petr Cibulka of a list of 220,000 people from the StB archives. Just as with the Polish Wildstein’s list, the problem was that it included former spies and those of interest to the secret police. With no equivalent of Poland’s Institute of National Remembrance, the mistakes were difficult to correct. It was not until 2007 that the Czech Republic established the Institute for the Study of Totalitarian Regimes (USTRCzR).

The Slovaks took a different approach when they established their own state. From early on, Slovak politicians, especially on the left of the political spectrum, were wary of lustration. The joint Czechoslovakian lustration law expired in 1996 and was not followed up by Vladimir Meciar’s HZDS government. The Nation’s Memory Institute (UPN) was not established until 2002 under a right-wing government. Eventually, it was decided that lustration statements were not mandatory, and even if someone is proved to have had a secret police past, moral stigma aside there will be no legal consequences (e.g. exclusion from public office). Gaining access to UPN archives is relatively easy.

Neither were the Hungarians very enthusiastic about dealing with the past. Despite the militant mood among right-wing groups during the collapse of communism in 1989, Hungarians took a long time to adopt lustration laws. The Alliance of Free Democrats had its proposals, as did the first non-communist government of József Antall. Adopted in 1994, the first act offered a relatively mild treatment of former agents. Not only were secret police collaborators kept safe from any serious sanctions, but also legislators wanted to keep communist security service files secret for as long as 30 years. Due to objections raised by the Constitutional Court, the final version of the law was not ready for another two years, to have finally expired in 2004.

Astonishingly, the governing radically anti-communist Fidesz party is reluctant to address the topic of lustration. Some analysts believe that this is due to the fear of possible blackmail due to intense infiltration of the opposition during the 1970s and 1980s. In a recent bid to revisit the ‘agent’s act’ in June this year, the Hungarian Parliament again failed to pass the bill. This time government coalition MPs abstained.

Secret Collaborator politician

Romania was equally slow with its lustration legislation. With strong post-communist influences, the first governments were in no hurry to deal with the past. It was not until 1996 that the right-wing government of Emil Constantinescu started work on Act 187, a law dealing with Securitate (Ceausescu-era security service) agents and collaborators. Passed three years later, the law turned out to be ineffectual. While data about confidants’ pasts were to be disclosed, there would be no consequences. It was up to voters to decide whether people discredited in the past could hold elected offices. As a result, many a former secret police collaborator is pursuing a political career in Romania. While the agent exposure process gained some impetus after 2006 with pressure from president Traian Basescu, the screening of several hundred people a year compared to several hundred thousand former secret police collaborators does not seem like an effective way of dealing with the past.

As we can see, lustration involving painful consequences for former communist secret service collaborators is merely a demand voiced by former opposition groups. Despite the common belief that the new political elites of Germany and the Czech Republic were most consistent in their lustration policies, the process failed even there. What may come as consolation is that while Polish lustration is criticised for being weak and inconsistent, the majority of the countries in our region have achieved even less in dealing with the shameful past of the communist era.

This article was originally published in a special appendix to Rzeczpospolita daily for the 'Genealogies of Memory' conference on 27 November 2013.

For a quarter of a century we have sought to memorialise the victims of communism by erecting monuments and opening museums. But at times it seems that the most important things continue to be left unsaid.

Despite the Institute of National Remembrance operating at full capacity, it cannot win against nature. Defendants usually avoid justice, through death or for reasons of old age. Had the Institute of National Remembrance been formed ten years before, and had judges party to the lawlessness of the Polish People’s Republic been duly charged, justice would probably have had a better chance.

Institute of National Remembrance Prosecutions

As of October 2013, Institute of National Remembrance judges closed proceedings in 12,457 cases. Over a period of ten years, a total of 305 cases were filed against 469 individuals. 131 were convicted, with as many as 129 for communist crimes. Proceedings against 13,562 defendants were discontinued because of the statute of limitations. Nonetheless, prosecution is not over. Last year, as many as 1,252 new proceedings were initiated, 704 of which were in cases relating to communist crimes. During the same period, Institute of National Remembrance prosecutors filed as few (or perhaps as many) as 10 cases against 12 defendants.

Prosecuting crimes, communist crimes in particular, is but one of the aspects of coming to terms with the Polish People’s Republic’s past (and of the Institute’s work). A list of examples of the work performed during recent weeks follows, as reported by the Polish Press Agency.

• (18/11) Following a preliminary examination, the Institute of National Remembrance defined the area to be searched in the hope of identifying the graves of Home Army soldiers Danuta ‘Inka’ Siedziko wna and Feliks ‘Zagon czyk’ Selmanowicz at the Gdan sk Garrison Cemetery, in the vicinity of a prison where both had been sentenced to death after prolonged and cruel interrogation.
• (15/11) In the case of Stalinist military prosecutor General Marian R., aged 94, charged with having unlawfully deprived 17 detainees of freedom in the years 1951–1954, the Regional Military Court in Warsaw withdrew the majority of charges by virtue of the 1989 amnesty, and a number of other charges due to the statute of limitations. The Institute of National Remembrance is set to file an appeal. Following the so-called Gomułka period of political thaw, R. was chief military prosecutor of the Polish People’s Republic, then chairman of the Polish Football Association, and director general of the Office of the Council of Ministers in the 1980s.
• (21/10) The European Court of Human Rights in Strasbourg concluded that it cannot assess the 1990–2004 Russian investigation into the Katyn massacre, as Russia ratified the European Convention of Human Rights only in 1998, i.e. eight years after the investigation had begun. The judgment received heavy criticism, including from Professor Witold Kulesza, former head of prosecution at the Institute of National Remembrance, who said that ‘the court had an opportunity to add something of a postscript to the judgment of the Nuremberg Trials by confirming that the Katyn massacre had been committed by Russia, which today is charged with the duty of classifying the crime in international law as genocide. Let me add that the Institute of National Remembrance is conducting its own investigation into the Katyn massacre, the outcome of which largely depends on the files held by Russia. To date, the authorities there have failed to provide Poland with a complete set of documents.’

Live Fire Fight

I cite the Strasbourg judgment in the Katyn case to prove that seeing justice done is an uphill struggle, even outside of Poland.

This is shown in the ruling of the Regional Court in Warsaw in the December 1970 case. Over eighteen years of trial, the number of defendants has shrunk from twelve to three. That in itself is cause for a major charge to be brought against today’s Polish judiciary. The court acquitted former deputy prime minister of the Polish People’s Republic Stanisław Kociołek, while sentencing two commanding officers of troops responsible for crushing the December 1970 worker protests to two years of suspended imprisonment sentences. Concurrently, the legal classification of charges was commuted from issuing a command resulting in the manslaughter of several individuals at the Gdan sk and Gdynia Shipyards to participation in an assault resulting in death with the use of ‘dangerous objects’, the dangerous objects in question being rifles loaded with live ammunition. In her justification for commuting the charges the judge, Agnieszka Wysokin ska-Walczak, declared as follows: ‘Responsibility for participation in battery resulting in death does not require blame to be individualised; the relevant article of the Polish Criminal Code extends to fights and well as assault threatening human life and health.’

The legal structure resulting in Polish People’s Army officers having been convicted for participation in battery resulting in death (Article 158 § 1–2 of the Polish Criminal Code), while probably easier for evidence-related reasons, dilutes the perpetrators’ accountability.

Maciej Bednarkiewicz, the lawyer representing the victims in the December 1970 trial, who announced his intention to file an appeal, told the Rzeczpospolita daily that he expects the Appeals Court to offer an appropriate assessment of the Polish People’s Republic under criminal law, as this is the last moment to do so. The President of the Institute of National Remembrance shares this opinion. In March 2012, he called on the individuals with access to knowledge of events qualifying as communist or Nazi crimes to come forward and testify before a commission (the Ostatni Świadek – Last Witness campaign). The campaign yielded the initiation of investigation proceedings in 38 cases.

The Lost Decade

You might well ask why so late? And why has Poland been so slow to prosecute communist crimes? Maciej Bednarkiewicz, a lawyer with ample experience in political trials, believes that three factors have contributed to deficiencies in justice against officials of the Polish People’s Republic: that in the wake of 1989, they only handed selected files over to the new authorities; that the current Polish Republic and its authorities have not been sufficiently persistent in bringing criminals to trial, and have suffered a shortage in support; and that the 1981 imposition of martial law or the Polish People’s Republic have never been judged in political categories, as was the case in Germany.

‘The primary obstacles encountered by Institute of National Remembrance prosecutors are legal in nature: doubts as to the statute of limitations for communist crimes,’ adds Dariusz Gabrel, director of the Chief Commission for the Prosecution of Crimes against the Polish Nation.

The fundamental issue is that, in the resolution of May 25, 2010 (Reference No. I KZP 5/10), the Supreme Court interpreted provisions of the Institute of National Remembrance Act with regard to the statute of limitations for communist crimes, concluding that the Institute of National Remembrance does not have the capacity to prosecute crimes carrying a penalty of up to three years of imprisonment.

‘There are factual problems as well,’ highlights Gabrel, ‘such as the passage of time: the memory of witnesses dims, after many years it becomes impossible to identify the victims, and there are difficulties with collecting evidence. In the 1990s, it would have been easier to prosecute the perpetrators of communist crimes, but parliament only began dealing with the issue in late 1998 by establishing the Institute of National Remembrance.’

‘Officials from the Office of Public Security and Security Service have used the occasional argument that they felt unjustly treated; the Institute of National Remembrance is prosecuting them, they are facing charges of torturing an innocent human being, and yet, they say, this human being had been tried and sentenced by a court of law. Why, then, should they be treated any differently to judges in facing criminal responsibility for alleged lawlessness,’ says Professor Witold Kulesza.

This brings me to the role of the prosecutors and judges of the Polish People’s Republic.

Judges with Immunity

Poland has not seen the sentencing of any prosecutor or judge for judicial crimes comprising the trying and sentencing of innocent individuals recognised as opponents of communist authorities, despite the fact that more than 100 officials who tortured these innocent individuals in person have actually been tried and convicted.

It is thus difficult to claim pure coincidence. What usually happens resembles the Katowice case: the local branch of the Institute of National Remembrance was investigating communist crimes consisting of the abuse of power by prosecutors and judges who under martial law in 1981/82 had tried Solidarity Trade Union members, sentencing them to imprisonment. These Solidarity members were convicted for acts which were not illegal under the law, making it obvious that the issue was one of political repression. The Institute of National Remembrance applied to the respective courts (including the Supreme Court, as one of the judges had been a Supreme Court judge, currently retired) to remove the respective prosecutors’ and judges’ immunity, allowing them to be tried under criminal law. Not only did the Supreme Court refuse the institute’s motion, on December 20, 2007 it resolved that criminal courts had been forced to apply the Martial Law Order in retrospect. As the 2007 resolution was entered into the Register of Legal Statute, lower-instance courts are currently treating it as binding interpretation.

‘When as a co-author of the Institute of National Remembrance Act I was consulting it with German prosecutors appointed to prosecute cases of lawlessness in the German Democratic Republic, they envied the institute’s investigation authority,’ recalls Professor Witold Kulesza. ‘But they also pointed out that commencing any investigation in the late 1990s, ten years after the collapse of communism, is too late for the democratic state to judge the crimes in question. They told me that we were just beginning a process they were about to complete. I must admit the bitter truth that my German colleagues were correct.’

This article was originally published in a special appendix to Rzeczpospolita daily for the 'Genealogies of Memory' conference on 27 November 2013.

For a quarter of a century we have sought to memorialise the victims of communism by erecting monuments and opening museums. But at times it seems that the most important things continue to be left unsaid.

The concept of the ‘museum’ has a long and convoluted heritage. It is generally held – and no-one has described it better than Krzysztof Pomian – that it all began with the collections of oddities in the Renaissance. There, in fascinating disorder, lying side by side, were minerals, seashells, ancient coins and drawings. In time, collectors of paintings and coins concluded that it would be better to tidy things up to better exhibit their collections. Collectors of drums and masks from the Southern Seas, entomologists, hunters, lovers of maps, copper engravings, book-plates and side arms followed suit.

But there also exists one of the oldest trails of human remembrance: the preservation of famous battlefields and massacre sites, places where kings duelled and gathered. There are separate trails leading across specific mountains and through olive gardens to places where mortals met deities and where all of Europe's once common historia sacra unfolded.

Much closer to our contemporary thinking is the notion of memorialising elements of daily life to show to the posterity the entire civilisation of their ancestors rather than just their most outstanding achievements. This idea arose in Scandinavia, with the development of skansens (open-air museums and collections of historical structures). Exotic villages and temples, reconstructed for World Fairs by colonial powers proud of their subjects, competed with (and certainly came out victorious against) windowless Laplander huts.

But they provided as much knowledge about the world as the old German-born merchant Mincel did when lecturing a shop assistant in his broken Polish in a scene from the 19th-century Bolesław Prus novel The Doll.(‘See vas ist in dis drawer. Es ist Zimmt or cinnamon. And ven do ve need cinnamon? In soups and desserts ve need cinnamon. And vas ist cinnamon? Er ist de bark from dis one tree. And ver do dis one tree live? In India lives dis tree. Look on de globus – here lies India. So gif me cinnamon for a tenner...’). It wasn't until the mid-20th century that museum curators and managers began giving thought to ways of conveying other cultures in a consolidated manner within a limited time and space.

Cast-iron corpses

Those for whom memorialising everyday life under communism for posterity is close at heart have tried all these means and formulae. Small towns attempt to lure tourists with ‘collections of oddities’ such as amusing signs saying ‘Attention farmers! Wash your eggs at the procurement stations’ or the humorous labels on cheap fruit wines. The cast-iron corpses of former monuments lie in the grass in parks on the outskirts of big cities (Memento Park in Budapest) or even behind royal residences such as Mogoşoaia Palace, which once belonged to the rulers of Romania. Great art museums have separate rooms for grim propaganda paintings, and collectors of A2-sized posters greatly fancy communist-era appeals for vigilance and productivity. To show the ugliness of daily life under communism, here and there between the Elbe and Danube yet another flat in a tower block is adapted and fitted out with a wall unit, PVC flooring and a yearbook of the magazine Woman and Life on the table. (In Warsaw a similar skansen can be found on Grochowska Street.) But it isn't easy to complete the furnishing: the vintage artefacts now cost a fortune on auction sites.

Time and again a titanic notion arises to bring it all together and create a kind of ‘total museum’ of the epoch. This should not only show the annals of the system and highlight its victimisers and victims, but also explain the mechanics and conditions of totalitarianism while offering the visitor a wealth of details. Probably the boldest project of this type has been SocLand, created over the past decade or so by enthusiasts led by Czesław Bielecki.

The scope and fantasy of this project are truly impressive. It was to have been situated beneath Warsaw's Parade Square and, thanks to an ingenious trick, would have ‘subordinated’ the huge Stalin-era Palace of Culture, symbolically reducing it to the size of one of the other period exhibits. This was also a judgement-of-Solomon-style solution to the insoluble dispute between the advocates and opponents of demolishing the Palace of Culture. But the reasons behind its failure included the scope of the project, as shown by the visualisations, combined with the pettiness of Warsaw's city-hall officials. But dreams of a museum of communism have not disappeared. Evidence of this was provided in mid-November by the authorities of the Russian city of Ulyanovsk, who have come up with the idea of turning a large part of their city covering an area of more than 120 hectares into a museum of the Soviet Union. However, the internet is probably the best-suited medium for a project of this type. A certain American foundation, whose co-founders were Zbigniew Brzezin ski and Vaclav Havel, has been working for fifteen years or so to create a similar ‘virtual museum of communism’.

The snap of the bolt-lock

But what of those who seek the truth about the past and need tangible evidence, even if they are not allowed to touch it? Such people will sooner or later make it to several Central European museums ranging from the Teror Haza (House of Terror) in Budapest to the KGB Dungeon Museum in the Estonian city of Tartu. They share one thing: both are housed in old, converted security service buildings where prisoners were incarcerated, interrogated and sometimes killed.

The originators of the KGB Dungeon Museum, the Museum of Genocide in Vilnius, Romania's Museum of Remembrance in Sighet, and even the more modest Leistikowstraße Memorial in Potsdam have followed in the footsteps of the victims of Nazi totalitarianism. Warsaw's former Gestapo headquarters in Aleja Szucha as well the infamous concentration camp at Auschwitz have been turned into museums of Nazi terror. The reason is partly because no ‘socially beneficial’ use could be imagined for these places other than bearing witness to past atrocities, but above all because this role was deemed the most meaningful.

A question remains as to the devices curators can use to recreate the atmosphere of horror and violence. Some elements such as a prison's very look and feel are always effective. Whether climbing the rattling metal stairs of Sighet or crouching low in the 1.5-metre-high dungeon in Andrassy Avenue in Budapest, everywhere it is equally stuffy, cramped and threatening amid the snap of bolt-locks being closed, eye-wearying bare light bulbs and beds of boards. The interrogation rooms are the same in Budapest and Vilnius, with massive oak-veneer desks confiscated from some ‘enemy of the people’, pink-rimmed NKVD hats near their edge and interrogation lamps shined in the prisoner's face. In such a setting, the question asked by Polish writer Marek Hłasko inevitably returns: ‘Are the scoundrels shown in films imitating the real ones, or is it the other way round?’ When we sit on a chair meant for an interrogated prisoner, we can easily imagine being on the set of Ryszard Bugalski's film Interrogation.

The creators of the memorial in Tuol Seng, recalling the crimes of the Khmer Rouge, seem to have taken things the furthest. Only a few years ago were they persuaded to abandon a map of Cambodia made of victims' skulls. But, all in all, doesn't the silence and mounds of hair at Auschwitz cry out the loudest?

Killing fields

This aspect of communism – not violence against the individual but genocide, whose victims were entire social or ethnic groups – is easiest to evoke by means of a museum exhibition in Russia. On the islands of the Gulag Archipelago, prisoners' hair was not shorn with a view to stuffing mattresses. But maybe a stretch of a railway embankment, to which the corpses of forced-labour-camp victims were added to improve its stability in permafrost conditions, would suffice. And next to it a barracks with narrow beds of boards, a tin bowl, and a torn quilted jacket. Such crude reminders suffice if we look at the faces of visitors leaving the former Nazi German extermination camp at Majdanek in Poland or Washington's Holocaust Museum.

But no such collection has been created and it is doubtful whether one ever will be. This in itself is very meaningful. Beginning in the late 1980s, several monuments have been erected in Russia, mainly through the efforts of the Memorial association. Usually they have taken the simplest (albeit most eloquent) form of a commemorative boulder, the most famous of these standing outside Moscow's Lubianka prison and former KGB headquarters. Among the best-known exceptions are the sculptures of Ernst Nezvestny. One of them titled ‘Mask of pain’ was erected in Magadan in Asiatic Russia; and one in Elista in Russia's Kalmyk Republic is dedicated to the victims of forced exile.

And what about museums? Even the most modest ones? These can almost be counted on the fingers of one hand. Usually on a wave of pro-perestroika enthusiasm, local museums would set aside a room containing a few photos, photocopied documents and rusty pick-axes. But the museum in Vorkuta tells more about Russian historical memory than volumes of research ever could. There, side by side, is an exhibition devoted to a labour camp theatre (it looks like things weren't that bad after all!) and a display case proudly highlighting heroes of the Great Patriotic War (as the Second World War is known in Russia).

But efforts continue. In her book Gulag Remembrance, Zuzanna Bogumił compiled a list of probably all known attempts to create makeshift semblances of museums dedicated to communism. In the village of Kuchino, several barracks of the Perm-36 labour camp have been preserved and exhibitions have been set up in them. A small museum has been opened in Yagodnoye, and several display cases have been set up in Solovki. Young people from the Perm section of the Memorial association have for years been trying to safeguard the ruins of the Stvor labour camp on the River Chusovoy. And that's about it! That's about it in a country covering one-sixth of the earth's surface. Nearly two decades ago, Tomasz Kizny photographed the ‘road of death’, or what was left of the Salekhard-Igarka railway line, built by Gulag prisoners, and remarked that woodworm and permafrost would finish it off. But the terror was hardly limited to the Arctic Circle. It is estimated that the ‘Ukrainian killing fields’ in Bykovnia contain the remains of over 100,000 people, the victims of the 1937 Soviet wave of terror as well as murdered Polish officers. This very site was alluded to in a poem by Janusz Kotański:

the way to the kyїv road
is shown by a sign
with the word ‘memorial’
behind it are wooden stakes
adorned with red stars
after a few kilometres
one passes amid
rectangular hills
overgrown with young woodlands
(...)
a woman standing there
of middle age
begins to silently
weep in despair
the hilly terrain
overgrown with pines
stretches over an area
of a dozen hectares

This article was originally published in a special appendix to Rzeczpospolita daily for the 'Genealogies of Memory' conference on 27 November 2013.

Interview with Dr Stanisław Tyszka

Adam Tycner: Does the fact that the Czech Republic managed to carry out reprivatisation result from the Czech political class having a different attitude to communism than Poland?

Stanisław Tyszka: Property restitution was similar to lustration (vetting and decommunisation) in that it was one of the ways to reconcile the communist past and restore justice. This was successfully carried out in the Czech Republic, because the anticommunist current was victorious there, whereas in our country it has failed utterly. In Poland, the political changes were the earliest to take place in the region. When the Czechs voted on the first reprivatisation bill, we still had an interim parliament (the Contract Sejm) dominated by the Communist Party. There was a widespread conviction among our influential politicians that in exchange for a share of power it was necessary to let the communists retain control over the economy.

At the end of 1991 there was no Contract Sejm. The opposition had come to power.

Yes, but if we look at the other countries in the region, we see that the most important period was just after 1989. On a wave of public enthusiasm, it was then possible to reconcile communism and implement reprivatisation (the restitution of nationalised property). In Poland, these first moments of freedom were lost, and instead of focusing on the restitution of property, the government of Tadeusz Mazowiecki began privatisation. The Bielecki and Suchocka governments didn’t rush to adopt legislation, while Jan Olszewski was prime minister for such a short period that he didn’t have time to draft a relevant legislation. Meanwhile, privatisation progressed.

In Czechoslovakia, the order was reversed.

Yes. The Czechs felt that first you have to make restitution to those who were illegally deprived of their property. Starting privatisation before restitution was the original sin of the Polish Third Republic. It limited the opportunity to return property. In 1993, Prime Minister Pawlak removed the ban introduced by Hanna Suchocka on the sale of agricultural land to which claims had been filed. Within four years of post-communist government, a huge portion of what was to be given back to former owners was sold off.

How far did nationalisation reach in communist Czechoslovakia? Were the Czechs and Slovaks in a better position than the Poles in 1989?

On the contrary. Expropriation took place to a much greater extent there than here. In our country, like in Yugoslavia, collectivisation failed and a large part of the agricultural land belonged to the peasants. Houses also largely remained in private hands. Meanwhile, in Czechoslovakia in 1989, everything was in the hands of the state.

What principles guided the Czechs and Slovaks in their reprivatisation?

The Czech Parliament passed the main bills in 1990 and 1991. Firstly, property that was taken between 1955 and 1961 was given back, i.e. service buildings. Later, a comprehensive restitution law was passed. Owners or their descendants could apply for restitution in kind. If this was not possible, they received compensation.

Could anyone apply for the return of their property?

In 1990 yes, but a year later legislation was passed under which only Czechoslovak citizens who lived permanently in the country could apply for restitution. This ruled out hundreds of thousands of immigrants and their descendants from the entire process. It was the subject of a lot of dispute and finally the Constitutional Court ordered the deletion of this provision. There was no restitution of property expropriated in the years before 1948, before the communists took over power completely. Of course the idea was to not have to return property to the Sudeten Germans. But after the war the state also took over large industrial plants. Thanks to these regulations, they did not have to be returned.

Does that mean that Jews whose property had been appropriated during the war were not able to apply for restitution?

Initially this was the case, but the Czechs quickly rectified this error. They made an exception for people whose property had been expropriated for reasons of race.

Why did Czech churches have such a big problem with the recovery of property?

Whenever the Czechs regained their independence, anticlerical sentiments increased. This was one of those times. Property taken from churches was not subject to privatisation, but a law on its return has not been passed yet. The struggle is ongoing. Of great symbolism is the fate of the most important church in the Czech Republic, the Cathedral of St. Vitus in Prague, located next to the presidential palace, which has changed owners several times. It was only three years ago that a compromise solution was worked out.

How has reprivatisation affected the Czech economy?

Very positively, but social relations have also changed. It helped to restore the middle class, cemented respect for private property and has had a big impact on politics. The conservative party TOP 09 was created by former owners who regained their property.

Can we still use the Czech model?

Yes, because although most of nationalised property has already been sold, it is still possible to receive compensation in the form of substitute land, even that belonging to the Agricultural Property Agency. Today, a reference point for us could be the resolution applied to property east of the Bug River, namely compensation at a level of 20 percent of the value of assets.

Interview by Adam Tycner

Stanisław Tyszka is a lawyer and historian, a graduate of the European University Institute in Florence, where he defended his doctoral thesis on the restitution of property in Poland and the Czech Republic after 1989.

This article was originally published in a special appendix to Rzeczpospolita daily for the 'Genealogies of Memory' conference on 27 November 2013.

Nazis are still being prosecuted in Germany; however, many have never been tried due to political considerations and society’s reluctance to come to terms with the past.

It is difficult to imagine a greater turning point in the life of a nation than that experienced by Germany after the end of the Second World War. Unconditional surrender, occupation and the rule of foreign powers went hand in hand with the breakdown of German notions of their superiority and power. However, society could not dissociate itself from a closed historical chapter, since it faced the colossal problem of coming to terms with the ideology and crimes of National Socialism. 7.5 million members of the Nazi Party, 850,000 members of the SS, newsreels across the world showing heaps of corpses in liberated concentration camps, perpetrators of crimes against humanity, including the Holocaust, blending into the crowd and keeping a low profile, doctors killing en masse the disabled and the terminally ill, a corrupt judiciary, youth brainwashed by Nazism – this was only a fraction of the burden under which German society began to build its future. At the same time relatively few people in Germany were aware of the scale of the problem and for certain no-one had any idea of how to solve it.

Nuremberg Known and Unknown

Aware of the immense support that Hitler’s regime had enjoyed in German society, the Allies doubted the Germans’ ability to cleanse themselves. Therefore, as early as in 1942 they took on the responsibility of punishing those charged with war crimes, and ordered the relevant documentation to be drafted. In November 1943, it was decided that those charged with war crimes were to be extradited to the countries where they had committed their atrocities, and those whose deeds concerned multiple countries – belonging to the category of main perpetrators – were to be brought before an international court. Thus in August 1945, the Allies signed a treaty establishing the International Military Tribunal. It operated during the Nuremberg Trials, where from 20 November 1945 to 1 October 1946, twenty-two principal war criminals from the highest levels of the Third Reich were tried. They were selected in a manner assuring a representation of the Nazi system’s main areas of activity (including Hermann Göring, Rudolf Hess, Martin Bormann – Nazi Party leaders; Julius Streicher, Alfred Rosenberg –ideologists of Nazism; Joachim von Ribbentrop, Konstantin von Neurath – foreign policy; Ernst Kaltenbrunner – the SS and police; Alfred Jodl, Wilhelm Keitel, Erich Raeder, Karl Dönitz – armed forces; Hans Fritzsche – propaganda; Baldur von Schirach – Hitler Youth; Albert Speer and Hjalmar Schacht – the economy, Hans Frank and Artur Seyss-Inquart – the occupation policy). During the trial, 19 convictions were handed down, including 12 death sentences.

However, an often overshadowed fact is that from 1946 to 1949 twelve other large trials were held in Nuremberg, such as the Ministries Trial (management of the German Ministry of Foreign Affairs); the trial of concentration camps doctors (the Doctors’ Trial); Einsatzgruppen; the management of the Kruppa and I. G. Farben companies; the SS Race and Settlement Main Office, and the SS Main Economic and Administrative Department. Oswald Pohl, the head of this key unit tasked with operations including organisation of the concentration camps, was sentenced to death and executed on 8 June 1951 at the American military prison in Landsberg, Bavaria. This was the last execution carried out in the Federal Republic of Germany, since the death penalty had been abolished with the founding of the country in 1949.

Further trials between 1946 and 1951 were made possible due to Law No. 10 of the Allied Control Council, enacted as early as 1945, which expanded the powers of the military governors of individual occupation zones. This law was rescinded in 1951, when West Germany received many attributes of a sovereign state. Hence over several years, the Allied system of courts and prisons across Germany was eliminated. It should be noted that as early as 1950, the USSR had closed down its ‘special camps’ where Nazi prisoners were interned, and completed its prosecution of war criminals in East Germany. The last relict of the post-war period of Nazi war crimes trials was the joint military prison in Spandau, maintained and operated by the Allies, where prisoners sentenced at the Nuremberg Trials were detained. In existence as long as the last prisoner was alive, it was closed in 1987 after the suicide of Rudolf Hess.

In the initial post-war period, a great majority of Germans felt an aversion to the trials of war criminals. Even the Nuremberg Trials failed to exert the psychological effect expected by the occupying powers. It was generally viewed as a form of revenge on the defeated and the belief was that the verdicts of the victors could not be just. Besides, the nascent Cold War meant that friendly relations with the Germans were important to both sides. Thus the enthusiasm of the occupying powers to prosecute the Nazis quickly dampened. Extradition to East European countries was abandoned as early as 1947, and soon the practice of early release for convicts from Allied prisons spread.

In his first address to the opening of parliament in 1949, West Germany Chancellor Konrad Adenauer already spoke about a blank slate when coming to terms with the recent past. Most probably he was convinced that the rebuilding of West Germany would not be possible without the advocates of National Socialism. They were too numerous and too many belonged to the country’s professional elite. For this reason, in the West Germany of Adenauer’s era an unwritten agreement was reached between the new authorities and the advocates of Nazism, under which the authorities guaranteed them impunity (with the exception of a very small group of people charged with the most severe crimes) and freedom of professional development; while they, in turn, renounced their public anti-system and racist activity. The first amnesty act was passed as early as 1949, which freed from responsibility thousands of Nazis convicted for lesser crimes. In 1951, the West German Parliament passed another act, under which they regained public posts (including in the police) in a short period of time. It is therefore no surprise that in the 1950s the number of Nazi war criminals tried by West German courts dropped dramatically.

The Guilt of the Fathers

However, the situation in West Germany changed with the coming of age of the younger generation, who opposed concealing the guilt of their parents’ generation. Gradually, thanks to researchers, knowledge about Nazi Germany and the crimes committed during the period improved. Now and again, wishing to discredit West Germany, the East German security services revealed compromising facts about the Nazi past of West German politicians and high-ranking officials. In an atmosphere of gradually mounting interest in bringing Nazis to justice, the trial of ten members of Einsatzkommando Tilsit (Einsatzgruppe A), who were charged with murdering many thousands of Jews in Lithuania in 1941, gained wide publicity. Despite the fact that each defendant’s personal responsibility for executing at least several hundred Jews by firing squad had been proved, the sentences handed down during the trial, held in Ulm in 1958, ran contrary to the fundamental sense of justice (between 3 and 15 years’ imprisonment).

This scandal provided an impetus for the creation in November 1958 of a West German institution specialising in prosecuting Nazi crimes, i.e. the Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes, popularly called the Central Office in Ludwigsburg. Its operations were restricted in numerous ways, the most important of which was that the prosecutors only had the right to prepare indictments, without the possibility of independently filing these with a court. Despite this, the Central Office established a new quality in the German court system and greatly enhanced the prosecution of Nazi crimes in West Germany. To date it has drafted around 7,500 indictments.

Successive breaches in the wall of silence behind which the Germans were hiding came from the exhibition Ungesühnte Nazijustitz, shown for the first time in Karlsruhe in 1959. It proved that tens of highly-placed West German lawyers were guilty of severe judicial crimes perpetrated during the war. While the West German judiciary unshakeably stood and still stands for the principle of judicial immunity, after several years (1962), over 160 judges and prosecutors with Nazi pasts went into voluntary, albeit early, retirement. Regular TV broadcasts from the 1961 trial of Adolf Eichmann in Jerusalem had an even greater impact in Germany. On the rising tide of these West German transformations, the Frankfurt Auschwitz Trials commenced in December 1963, at which 20 members of camp staff were indicted. It is worthy of note that during the preparation for the trial, the files of around 800 people were studied, although only the best documented cases were selected. The fact that such a mass trial took place and that a huge body of evidence was gathered, enabling 17 out of 20 defendants to be convicted in December 1965, was by no doubt down to the success of the Central Office of Ludwigsburg and the Attorney General of Hessen, Fritz Bauer. He was the unofficial leader of a group of West German lawyers who understood the need to prosecute Nazi crimes.

Criminals Behind Desks

On the other hand, the Frankfurt Auschwitz Trial again exposed the courts’ weakness in bringing Nazism to justice. Contrary to the prosecution’s intentions, the prevailing practice was that of detailed investigation into the individual guilt of the defendants, while the fact that membership of the Auschwitz staff itself made the defendants accomplices to all crimes committed at the camp was ignored. Moreover, the court was very broad in applying the classification of accessory. Under this interpretation, the ‘true’ perpetrators of the crimes were only high-level commanders (e.g. Heinrich Himmler and Reinhard Heidrich) and those who personally murdered the victims. Thus during the trial, the longest sentences (life imprisonment) were pronounced almost exclusively on lower-ranking personnel and prisoner functionaries (Kapos), while SS officers whose duties included carrying out the selection process on arrival of the transports, thereby sending thousands of victims to their deaths in the gas chambers, were sentenced to several years in prison. Moreover, the court in Frankfurt could not prevent the scandalous behaviour of lawyers, a great many of whom were former Nazis. While acting for the defence, they did not hesitate to mentally torture and insult the former Auschwitz prisoners who had decided to serve as witnesses for the prosecution.

As can be seen, progress in prosecuting Nazi crimes in West Germany after the establishment of the Central Office in Ludwigsburg did not mean at all that those opposed to bringing Nazi criminals to justice gave up. On the contrary, they still enjoyed the support of the majority of the population and also had some major successes. The most important of these was the West German Parliament’s effortless enactment in 1960 of a statute of limitations on all Nazi crimes except murder. From this point, no-one could be prosecuted for the use of torture, medical experiments, theft of fine art or, for example, the destruction of Warsaw. Besides, the acquittal of judge Hans-Joachim Rehse in 1968 emerged as an important precedent. Next to Roland Freisler, he was the most active member of the notorious People’s Court, which during the war sentenced many, including German opposition activists, to death. Thus in practice, the door had been closed to prosecuting former members of the Nazi justice system, even those guilty of the most drastic judicial crimes. In that same year, under circumstances that still remain unclear, ‘someone’ from the Federal Ministry of Justice, unnoticed by legislators, added an article that again broadened the interpretation of ‘accessory’ to the text of an act that had nothing to do with the prosecution of Nazi crimes. From then on, West German courts definitively lost the ability to convict a very important, although specific category of ‘criminals behind desks’.

No Statute of Limitations

Another battle over the prosecution of Nazi crimes centred on the statute of limitations for qualified murders committed during the Nazi era. This took place as early as in 1965, precisely on the 20th anniversary of the end of Second World War. Shortly before that date and following a heated debate, the West German Parliament decided to extend the statute of limitations until the end of 1969. In 1969, a decision to extent the statute further turned out to be easier than before, since a year earlier, following a proposal by Poland, the United Nations General Assembly had adopted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. For this reason, the statute of limitations on crimes which led to a sentence of life imprisonment was extended from 20 to 30 years, i.e. until the end of 1979. Only then did the parliament pass an act on non-applicability of the statute of limitations for qualified murder. Importantly, during the debates held in 1965 and 1969, public opinion surveys showed that the majority of West German society opted for statutes of limitations. These proportions did not change until 1979.

According to observers, a change in Germans public attitudes was possible due to the last great trial of Nazi murderers, that of the staff of the Majdanek concentration camp, alongside the American TV series The Holocaust (January 1979). While there is no ambiguity as to the psychological impact of TV images, which for the first time clearly showed the persecution and extermination of Jews from the perspective of a particular family, the way in which the trial of Majdanek personnel influenced German public opinion requires an explanation. The trial of the 16 camp personnel in Düsseldorf in 1975 became a show of excesses to an even greater extent than the Frankfurt trial had been. The public gallery in the courtroom was dominated by neo- Nazis, who demonstrated their hostility towards the prosecutors and witnesses. The defence again exerted brutal psychological pressure on former prisoners. After the above series had been broadcast and had so moved public opinion, times had changed when in 1979 the court released four defendants due to the fact that the witnesses who were due to testify against them had died during the trial. The alleged helplessness of the court and the falsely perceived faithfulness to procedures were severely criticised. From then on, the trial was carried out peacefully and with all due solemnity; however, as far as justification and length are concerned, the sentences of 1981 were very similar to those handed down by the Frankfurt court 16 years earlier.

Although the Düsseldorf trial was the last of this magnitude, it was by no means the last of this type. Nazis are still being convicted in Germany. In 2009, a Munich court sentenced former Wehrmacht officer Josef Scheungraber (born 1918) to life in prison for commanding troops who murdered the villagers of Falzano di Cortona in Italy. In May 2011, also in Munich, the widely publicised trial of John Demjanjuk (born 1920), a former guard at Sobibor, resulted in a six-year prison sentence. On that occasion the media used the term ‘the last Nazi trial’. This year, however, the German prosecutor’s office unexpectedly announced that it was preparing to indict several dozen other perpetrators. A trial is being held in Hagen, North Rhine-Westphalia, of a certain Siert Bruins (born 1921 in the Netherlands), charged with participating in the execution by firing squad of Dutch resistance members. Despite the judiciary’s unexpected surge of activity, these actually will be the last trials of Nazi criminals, since in five years’ time none of them will be capable of standing in front of a court. Critics of the German justice system call attention to the advanced age of the defendants and the fact that during the war they were almost exclusively lower-ranking members of organisations involved in war crimes. At the same time, as a general rule their commanders, holding an immeasurably greater responsibility for the crimes, escaped punishment and are no longer alive. Despite these reservations, the fact that war crimes and crimes against humanity are prosecuted, so long as the suspects are physically able to stand in front of a court, is of great significance. It is a unique phenomenon in modern history.

This article was originally published in a special appendix to Rzeczpospolita daily for the 'Genealogies of Memory' conference on 27 November 2013.

The lack of reprivatisation legislation has made the restitution of property a chaotic procedure. The losers include not only the rightful owners and the state, but also thousands of tenants living in nationalised buildings.

There have been over a dozen draft proposals. Some were brought to a standstill in parliamentary committees, three were voted down and one was vetoed by the president. In a nutshell, this is the story of Poland's reprivatisation attempts. The present government had proposed paying for nationalised property in 2012, but in March 2011 the Treasury halted work on the draft. PLN 20 billion in compensation would increase the public debt and exceed the 60% precautionary threshold.

Although 13% of Poland's citizens sustained losses as a result of nationalisation carried out by the communist authorities, Poland is the only country among the new EU members and one of four in the region (the others being Belarus, Ukraine and Albania) that have not carried out reprivatisation following the transition to democracy. When in the early 1990s owners began reclaiming their property in Czechoslovakia, Bulgaria and the Baltic States, and Hungary was issuing special bonds for them, Poland only managed to regulate the restitution of trade-union and church property.

Return or substitute

From that time, the chances for former owners to regain their property have dwindled year on year. Not only have successive governments over the past two decades refused or been unable to pass the relevant regulations, but a changing approach to property restitution can clearly be seen in successive drafts. The 2001 law vetoed by Aleksander Kwaśniewski envisaged the State Treasury returning confiscated property to its rightful owners. Where impossible, former owners were to receive reprivatisation vouchers equivalent to half the value of the nationalised property.

However, the draft abandoned two years ago made no mention of reprivatisation. Instead, it referred only to ‘alleviating the wrongs suffered as a result of nationalisation measures’ for which ‘monetary benefits’ were to be provided. The decrees of the postwar communist-controlled Polish National Liberation Committee and the measures adopted by the parliament of the People’s Republic of Poland were to remain in effect. Former owners were to receive compensation only if the communist authorities had nationalised property in violation of their own regulations. These regulations were often insulting to an elementary sense of justice. The government did not intend to return a set amount of the property's value to its rightful owners, but wanted to earmark PLN 20 billion for that purpose to be distributed among former owners. Compensation amount would depend on the number of claims filed and would be strictly symbolic.

‘Back in the 1990s, when the initial draft privatisation proposals were being worked on, it was obvious to everyone that the property should be returned in kind,’ explained Marcin Schirmer, vice-president of the Polish Landowners Society. ‘Since then, there has been a clearly visible tendency. The authors of successive drafts have moved away from restitution-in-kind in favour of monetary compensation, and each successive draft envisaged increasingly smaller damages.’

Why do successive governments want to return an increasingly diminished share of nationalised property to its former owners? ‘Unfortunately, that is the normal course of events,’ comments Professor Włodzimierz Pańkow, a sociologist at Koźminski University in Warsaw. At stake are the interests of hundreds of thousands of new owners, who after 1989 took possession of property previously nationalised by the communists. Often members of the former communist party authorities were enfranchised in this way. Today, in most cases privatisation no longer involves actual restitution of nationalised property, since beginning in the early 1990s the state has managed to sell off a large share of nationalised assets.

Most economists and sociologists agree that the abandonment of reprivatisation has adversely affected the Polish economy. A middle class has begun to emerge with great difficulty. The rural areas where nationalised property has going to ruin have lost out. And the lack of clear regulations is troublesome for tenants living in buildings being restored to their former owners. Do rightful owners still have any chance of regaining their property? Marcin Schirmer has not lost all hope. “At present, the Agricultural Property Agency has at its disposal nearly two million hectares of land, mainly in what are known as the recovered territories. Today, most of the land taken over by the communists can no longer be returned, but substitutional reprivatisation could be carried out if the political will existed.

Bierut lives on

The problems behind the lack of reprivatisation legislation can best be understood through the example of Warsaw. In 1945, communist leader Bolesław Bierut decreed that all pre-war property within Warsaw's city limits was to become city-owned. These regulations encompassed more than 90% of the capital’s real estate. Owing to Warsaw's exceptional situation in the country, there were repeated plans to regulate the question of property restitution in the capital by means of separate legislation. Last year, parliamentarians from the governing Civic Platform party pledged that applicable draft legislation would be ready by early 2013. But there is no guarantee that these promises will be kept. ‘Work on the new regulations is underway but proceeding are rather slow,’ daily Rzeczpospolita was told by Ligia Krajewska, the Civic Platform MP who heads the group working on the bill. ‘The matter is extremely complicated, and we are regularly consulting with legal experts. Perhaps work will move forward next year.’ When will the bill be ready? ‘That may take a year or two, maybe three,’ Krajewska adds. ‘It is difficult to predict at this stage, but we are not abandoning our work on the new regulations.’

The lack of legal regulations means that former owners can and are attempting to seek justice on their own. The value of property confiscated after the war is now estimated at some PLN 40 billion. Specialist firms involved in consolidating claims and recovering real estate have been established. There is also much to indicate that reprivatisation in Warsaw has taken on more ominous forms. Business magazine Puls Biznesu has established that there are at least several groups in Warsaw specialising in making money on privatisation. It reports that members of these groups are consolidating claims to a small fraction of the real estate's value and subsequently, thanks to ‘nonstandard good relations with officials’, quickly recover the property.

‘Extremely alarming things that have little to do with righting historical wrongs are taking place in Warsaw,’ Aleksander Grabiński, president of the Association of People Affected by the Warsaw Decree, told Rzeczpospolita. ‘Many owners who often have excellent lawyers are unable to recover their property for years on end. But the moment they sell their claims to private firms, it soon turns out that the real estate can be quickly recovered,’ Grabiński says. He cited the example of Warsaw's Blue Palace, which Jan Zamoyski had sought for years to reclaim. ‘Discouraged by endless procedures, he sold his claims and a private investor recovered the Palace within several weeks.’

Each year, dozens of Warsaw tenements experience a similar fate. Tenants' organisations are up in arms, because the housing being reclaimed by private firms is occupied by tenants who had been granted council flats after the war. ‘The firms reclaiming tenements want to transform them into luxury apartments or tear them down and build new structures in their place,’ said Anna Kutyńska of the Warsaw Tenants’ Defence Committee. They use every trick in the book to force tenants, often elderly people who are unaware of the legislation, to move,’ she explains. ‘In theory, these tenants are protected by the law. In practice, however, there are many ways of circumventing it. A standard practice is to begin prolonged, make-believe renovations involving numerous hardships such as disconnecting the electricity, water and gas. It is sufficient to sit back and wait until the tenants are unable to put up with such conditions and begin moving out on their own. “Unknown assailants” are brought in to deal with those who still refuse.’ Since Warsaw is short of housing, the displaced tenants often have nowhere to go.

Cashing in on other peoples’ misfortunes

How can the problems of Poland's capital be solved? Members of the Association of People Affected by the Warsaw Decree maintain that no new legislation is needed to restore most real estate to its rightful owners. ‘Existing measures regulating property issues clearly state that real estate taken over by city authorities should be returned to its former owner if it has not been put to the (city’s) intended use within seven years of the take-over,’ said Ryszard Grzesiula, a lawyer and the Association's vice-president. Its members have long been appealing the matter to the prime minister, president, MPs, senators and Warsaw city hall. The Decree Association has taken note of the problem of tenants evicted by private firms, and Grzesiula is proposing a solution: ‘The city council could be doing the same thing that private firms are. Many members of our association would forego their claims towards the council in exchange for a small proportion of the value of their real estate or a modest life annuity,’ he explains. Subsequently, real estate in good locations could be sold to developers for a fraction of its true value on condition that they build housing that includes council flats, so the displaced tenants would have a place to move. We have proposed that solution to the municipal authorities, but nobody even wanted to discuss it.

A lack of interest on the part of politicians is the most serious charge levelled by organisations of former property owners. The real estate taken over by the state after the war is sold on the free market or is falling into disrepair. It has been estimated that in 1939 there were some 20,000 manor houses and palaces in Poland. After nationalisation, many of these were deliberately destroyed as part of the communist regime's anti-landowner campaign. Others are now outside Poland's present borders. Ultimately, a mere 2,000 buildings have survived. In 2010, officials from the Supreme Audit Office verified the condition of the manor-houses and palaces now belonging to the Agricultural Property Agency or local councils. The results of the inspection were unequivocal. The report stated that ‘for the most part the current owners of the inspected historical property have done nothing to renovate destroyed or deteriorating real estate.’ The Supreme Audit Office has therefore recommended ‘regulating reprivatisation issues as soon as possible.’

It appears that the recommendations of Supreme Audit Office officials will remain on paper for quite some time. At present, reprivatisation demands are not included in the manifesto of any political party in parliament. In the meantime, the problems arising from the lack of reprivatisation regulations are growing and it appears that both in Warsaw and nationwide, politicians lack the desire and determination to resolve them. ‘The lack of reprivatisation at the start of the 1990s, in addition to the fact that it was simply unjust and adversely affected the economy, has produced yet another deplorable result,’ explains Professor Pańkow. ‘Among a sizeable portion of society, it entrenched a lack of respect for private property as well as the conviction that a passive state facilitates cashing in on the misfortunes of others.’

This article was originally published in a special appendix to Rzeczpospolita daily for the 'Genealogies of Memory' conference on 27 November 2013.

The task of a truth commission is an arduous one: it involves creating from a set of subjective memories, often blurred by time and marked by trauma, a common narrative that will no longer divide society.

Over the past three decades, in the course of media and scholarly discussions on settling accounts with the past, the institution most frequently invoked has been the truth commission. The origins of that concept should be sought in the bringing of the military dictatorship of Argentina to account in 1983. However, the truth commission owes its ‘international career’ to the Truth and Reconciliation Commission of South Africa, which functioned in 1995-2000 under the leadership of Archbishop Desmond Tutu.

Popularity

The ability for perpetrators to obtain amnesty in exchange for full disclosure of the truth about their crimes, public hearings evolving into religious ceremonies, and finally the charismatic chairman - all this meant that over the years South Africa and its truth commission were presented as a model solution to be used in other countries.

It is worth noting that many of its ideas had been used earlier in committees of inquiry in Great Britain and its former colonies. The popularity of the truth commission and continuing academic deliberation as to what exactly such a commission should be has led to the widespread creation of public and private institutions bearing that name.
Truth commissions have dealt with the causes of slavery in Mauritius (reaching back as far as 1638!), evaluated the issues of doping in cycling or paedophilia in the Irish Church.
The associated devaluation of the concept makes it difficult to determine the number of truth commissions involved in settling accounts with the past. However, 22 truth commissions can be identified, operating in 21 countries around the world. They share several characteristics: they are public institutions (appointed by the State or an international organisation), they are extraordinary, they operated for a defined period of time, they are set up during a time of transformation, also after a period of authoritarian rule, as in the case of post-conflict peace-building; they deal with human rights violations in the past and focus on the victims of these violations. As can be seen, not all of commissions identify the perpetrators of crimes (some even omit this issue), and only two (in South Africa and Kenya) had the right to grant conditional amnesty. The last truth commission was established in Brazil in November 2011.

Compromise

Historically, the greatest threat to settling accounts with the past is the emergence of the phenomenon known as victor's justice. After a former authoritarian regime has given up power, following the signing of a peace agreement, ‘after every war someone has to clean up’ (W. Szymborska).

The desire to obtain quick redress for grievances leads to self-appointed courts, show trials and witch hunts without guaranteeing the rights of offenders, without seeking to justify their circumstances, without regard for the future.
Revenge by some generates a sense of grievance in others; it creates a vicious circle which in the long term prevents reconciliation. Truth commissions are usually established on the basis of a worked-out compromise that in all appearances may seem unacceptable.

Acknowledging social peace and future reconciliation as the highest values, they try not to violate the agreements of transformation. The former opposition accounted for one-half of the members of Chile's truth commission and people involved in the Pinochet regime made up the other half. The representatives of various racial and religious groups sat next to each other in the commission in South Africa. These commissions were also careful about naming the perpetrators (making it possible to investigate the fate of the victims of the Chilean junta).
Truth commissions are sometimes accused of maintaining the impunity of perpetrators. However, in situations following internal conflict, when any criminal proceedings could threaten a return to violence (such danger existed for example in El Salvador), or if after the departure of authoritarian rule the armed or security forces continued to protect their interests (as in the countries of South America), the establishment of a truth commission becomes the optimum solution - as often pointed out by political journalists - second only to the courts.

The right to the truth

During a period of authoritarian rule, when judges cooperate with the authorities to cover up their transgressions and government officials deny that they ever took place, a truth commission, with the participation of recognised spiritual and secular authorities, seeks to bring this truth to light. Initially, commissions were limited to collecting data from police and military archives, carrying out interviews with the families of the victims and exhumations.

Since the establishment of the commission in South Africa, public hearings have become their most distinguishing characteristic. At such hearings, victims are able to present their truth about the crimes carried out, and the perpetrators are able to explain what guided them. From both of these monologues a truth commission is able to produce a new narrative: the truth about the past. This reference to subjective truths, to people’s memories, has allowed the past to be talked about in a language different from that of dry NGO reports or those found in secret-police files. Hearings held by truth commissions have become spectacles: they have revealed all the drama of what being a victim and a victimiser is all about. Addressing the motivations of individual people is perhaps the greatest achievement in the history of these commissions.

It is not difficult to note that the task of a truth commission is an arduous one: from a set of subjective memories, often blurry after many years and marked by trauma, to produce an intersubjective narrative that will no longer divide society. Although the role of the members of truth commissions has been entrusted to authority figures, this has not protected them from accusations that they lack impartiality in the creation of narratives about the past. Even the model commission of South Africa was seen by the white population, according to a 1999 study, as a tool of revenge.

The voice of victims

In a criminal case, typically the accused is th4e central figure, round whom the proceedings take place. But truth commissions were set up give a voice to the victims. The fact that they were not judicial bodies gave them the opportunity to function on a more flexible basis: they have often been compared to a treatment and healing process. However, giving a voice to the victims has led to two paradoxes which seem to have diminished the popularity of truth commissions as a means of reconciliation in the early twenty-first century.

The first paradox concerned the perpetrator-victim relationship. In Chile and Argentina, the division was clear: the victims were mostly left-wing opposition activists, whilst officers of the security forces and the army were the perpetrators. However, very soon it turned out that these categories were not mutually exclusive. In El Salvador, both parties to the conflict were guilty of crimes; in Sierra Leone it was not possible to even identify which of the warring factions was the government side; the truth commission of South Africa faced the problem of human rights violations carried out by activists as an expression of opposition to apartheid; in Ecuador there emerged the problem of extensive ranks of police informers.

It turned out that being the perpetrator and the victim is not as straightforward as it seemed at the beginning of transformation.

The second paradox is associated with the mechanics of a commission's operation. The more flexible and open the procedure is to the voice of the victims, the smaller the range of guarantees of a fair trial for the perpetrator. Can one then evaluate the past by violating human rights and making the past offender the present victim? Faced with that dilemma, successive truth commissions have developed a set of procedural guarantees, which have ultimately made commission procedures resemble criminal proceedings.

The functioning of a truth commission shows that human rights violations are not made in a vacuum. Its effects do not apply only to the perpetrator and the victim, but cover the whole of society. Therefore, a commission operates in public, it makes its reports available, and its meetings take on a solemn character. A truth commission is the beginning of a new history for the whole of society, in order to prevent it from returning to authoritarianism or conflict.

MARCIN KOMOSA holds a doctorate in political science and is a cultural anthropologist, the author of the monograph Sprawa Pinochet. Odpowiedzialność za naruszenia praw człowieka (The Case of Pinochet. Responsibility for violating human rights) 2005, and the book Komisja prawdy. Mechanizm odpowiedzialności za naruszenie praw człowieka (The Truth Commission. A mechanism of responsibility for human rights violations) 2013.

The text in Polish was published in a special Genealogies of Memory supplement in the latest issue of Tygodnik Powszechny on 11.12.2013.