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Trials, Purges and History Lessons
by Timothy Ash
Trials
...In what was then still Czechoslovakia, two
senior functionaries were convicted after 1990 for their part in
the repression of anti-regime demonstrations in 1988 and early 1989.
In 1993, the Czech Republic's Law on the Illegal Character of the
Communist Regime lifted the statute of limitations for crimes which
'for political reasons' had not been prosecuted in the communist
period. An Office for the Documentation and Investigation of the
Crimes of Communism was established, and brought charges against
three former Communist Party leaders for their role in assisting
the Warsaw Pact invasion of Czechoslovakia in 1968.
In Poland, General Jaruzelski was investigated
for ordering the destruction of politburo records and then, more
substantially, indicted on charges relating to the shooting of protesting
workers on the Baltic coast in 1970-71. A number of senior figures
were charged with causing the deaths of striking workers during
martial law in 1981-2. But, altogether, the judicial proceedings
have been fitful, fragmentary and usually inconclusive.
Germany has, unsurprisingly, been the most
systematic. Border guards have been tried and convicted for shooting
people who were trying to escape from East Germany. More recently,
the country's last communist leader, Egon Krenz, was sentenced to
six and a half years' imprisonment for his co-responsibility for
the 'shoot to kill' policy at the frontier. Several other senior
figures were found guilty with him. Yet, even in Germany, the results
are very mixed, to say the least.
...The Hungarian case is an interesting contrast.
Here parliament initially passed a law which, like the Czech one,
lifted the statute of limitations for acts of treason, murder and
manslaughter during the communist period, but the Constitutional
Court struck that down on the grounds that it was retroactive justice.
A new law was then passed specifically on Crimes Committed During
the 1956 Revolution. This took a different tack, and applied the
Geneva and New York conventions on 'war crimes' and 'crimes against
humanity’ to what happened in 1956. Unlike the German prosecutors,
and uniquely in Central Europe, they therefore claimed that some
things done in the communist period did qualify for those Nuremberg
trial categories - 'crimes against humanity', 'war crimes' - and
that these provisions had at least notionally been in force in international
law at the time.
Purges
...Partly in reaction against Havel's policy of preemptive
forgiveness, the Czechoslovak parliament passed a draconian
law in the autumn of 1991. It laid down that whole categories of
people - including high party functionaries, members of the People's
Militia, agents and what it termed 'conscious collaborators' of
the state security service - should be banned from whole, widely
drawn categories of job in the public service. In Czech, the process
was called not 'purge' (a somewhat compromised term) but 'lustrace',
a word derived from the Latin and implying both 'illumination' and
'ritual purification'. Thanks to the Czechs, we can therefore revive
an old English word: 'lustration'. Among the meanings given by the
Oxford English Dictionary, with supporting quotations from the seventeenth
to the nineteenth centuries, are 'purification esp. spiritual or
moral' and 'the performance of an expiatory sacrifice or a purificatory
rite'.
The Czechoslovak lustration was fully effective in
its original form for little more than a year, since Czechoslovakia
then broke into two. While the Czech Republic continued with
a slightly modified version, Slovakia virtually dropped it.
Yet there is no doubt that the law did keep a number of highly compromised
persons out of public life in the Czech lands, while such persons
remained to do much damage in Slovakia. However, the original legislation
was also so crude and procedurally unjust that President Havel publicly
expressed deep reluctance to sign the law, and the Council of Europe
protested against it. Disqualification by category meant that any
particular individual circumstances could not be taken into account.
A commission determined, on the basis of a sometimes cursory examination
of secret-police and other official records, whether someone had
belonged to one of the specified categories. The people thus publicly
branded often did not see all the evidence and had only limited
rights of appeal. In effect, they were assumed guilty until found
innocent.
The German law on the Stasi files is more scrupulous.
Employers receive a summary of the evidence on the individual's
file from the so-called Gauck Authority - the extraordinary ministry
set up to administer the III miles of Stasi files, and colloquially
named after its head, Joachim Gauck, an east German priest. The
employer then makes an individual decision, case by case. Even in
the public service, some two-thirds of those negatively vetted have
remained in their jobs. The employee can also appeal to the labour
courts. Yet here, too, there clearly have been cases of injustice
- even when denunciatory media coverage has not ruined the person's
life. And the sheer numbers are extraordinary: to the end of June
1996 more than 1.7 million vetting enquiries had been answered by
the Gauck Authority. In other words, about one in every ten east
Germans has been, to use the colloquial term, 'gaucked'.
Yet one also has to consider the cost of not purging.
In Poland, that was the original 'Spanish' intent. Within
a year, however, the continuance of former communists in high places
became a hotly disputed subject in Polish politics. In the summer
of 1992, the interior minister of a strongly anti-communist government
supplied to parliament summaries of files identifying prominent
politicians as secret-police collaborators. Of course the names
leaked to the press. This so-called noc teczek - or night of the
long files - shook the new democracy and actually resulted in the
fall of the government. In December 1995, the outgoing interior
minister, with the consent of the outgoing president, accused his
own post-communist prime minister of being an agent for Russian
intelligence. The prime minister subsequently resigned, and the
affair still rumbles on. In the latest parliamentary election campaign,
this autumn, it was suggested that the current post-communist president
of Poland, Aleksander Kwasniewski, himself had close contacts with
the Russian agent who allegedly 'ran' the former prime minister.
So, in the absence of an agreed, public, legal procedure,
Poland has enjoyed not Spanish-style consensus but bitter, recurrent
mud-slinging and crude political exploitation of the files. As a
long-overdue antidote to all this, the Polish parliament has this
year finally passed a carefully drafted lustration law. It obliges
people in senior positions in public life, including in the state-owned
media, to sign, at the time they stand for elected office or are
appointed to the job, a declaration as to whether they did or did
not 'consciously collaborate' with the security services in the
period June 1944 to May 1990. At the recent parliamentary elections,
I saw polling stations plastered with long lists of the candidates,
and under each name the appropriate declaration. The admitted fact
of collaboration does not in itself disqualify you from standing
for public office. Indeed, several candidates on the post-communist
list stood admitting their past collaboration. Only if you lie,
saying you did not collaborate when in fact you did, are you disqualified
for ten years. The declarations of innocence are to be checked,
in secret, by a so-called Lustration Court.
Hungary passed a lustration law in 1997, and
this is slowly being implemented. There, a commission vets senior
figures in public life, but exposes them publicly only if they refuse
to resign quietly. Shortly thereafter, the prime minister, Gyula
Horn, admitted that he had been negatively assessed in the terms
of the law, both on account of his service in the militia assembled
to help crush the 1956 revolution and because, as foreign minister,
he had been the recipient of secret-police information. However,
he declined to resign and said he now regards the matter as closed.
In both the Polish and the Hungarian cases, the circle of persons
to be vetted is - wisely, in my view - drawn much more closely than
in the German case.
History Lessons
You might think that this model would be particularly
well suited to the post-communist world, where the regimes were
kept in place less by direct coercion than by the everyday tissue
of lies. But, again, only in Germany has it really been tried,
and even there they somehow did not dare to use the word 'truth'.
Instead, the parliamentary commission, chaired by an east German
former dissident priest, was cumbersomely called the 'Enquete Commission
in the German Bundestag [for the] "Treatment of the Past and Consequences
of the SED - Dictatorship in Germany"' (SED being the initials of
the East German communist party). Hundreds of witnesses were heard,
expert reports were commissioned, proceedings were covered in the
media. We now have a report of 15,378 pages - and a successor Enquete
Commission is working on another. There are problems with this report.
The language is often ponderous. Some of the historical judgements
represent compromises between the west German political parties,
worried about their own pasts. Yet, as documentation, it is invaluable.
For students of the East German dictatorship this may yet be what
the records of the Nuremberg trials are for the student of the Third
Reich.
In Poland and Czechoslovakia, by contrast,
the national commissions of inquiry concentrated on major crises
in the history of the communist state: Solidarity and the Prague
Spring. In each case, the focus was on the Soviet connection. Who
'invited' the Red Army to invade Czechoslovakia in August 1968?
Who was responsible for martial law in Poland in 1981? In Hungary,
too, official inquiries have concentrated on the 1956 revolution,
and the Soviet invasion that crushed it.
Archives
...Virtually all the archives of the former GDR
are open, and provide a marvellous treasure trove for the study
of a communist state.
...The research department of the Gauck Authority,
for example, is partly staffed by younger historians from the Munich
Institute for Contemporary History, famous for its studies of Nazism.
...Beyond this, what Germany has uniquely pioneered
is the systematic opening of the secret-police files, administered
by the Gauck Authority, to everyone - whether spied upon or spying
- who has a file and still wants to know its contents. The power
is in the hands of the individual citizen. You can choose to read
your file, or not to read it. The informers on your file are identified
only by code-names, but you can request formal confirmation of their
true identity. Then you have to decide whether to confront them,
or not to confront them; to say something publicly, just to tell
close friends, or to close it in your heart. This is the most deep
and personal kind of history lesson.
Maddeningly, the Gauck Authority's statistics do not
enable us to say exactly how many people have gone through this
experience. But a reasonable estimate is that more than 400,000
people have seen their Stasi files, over 500,000 are still waiting
to do so, and more than 350,000 have learned with relief - or was
it with disappointment? - that they had no file.
...Elsewhere in Central Europe, the opening of the
archives has been more uneven, partly because of the political attitudes
I have described, partly for simple lack of resources and trained
personnel. Yet here, too, there have been some interesting publications
based on the new archive material, and school textbooks have significantly
improved. In Poland, there has been a lively intellectual
and political debate about the nature, achievements and (il) legitimacy
of the Polish People's Republic. In Prague, a new Institute
for Contemporary History concerns itself with the history of Czechoslovakia
from 1939 to 1992. In Hungary, a whole institute has been
established solely to study the history of the 1956 revolution.
It has roughly one staff member per day of the revolution.
Elsewhere in Central Europe, the German experiment
was at first strongly criticized and resisted, on the grounds that
it would reopen old wounds and unjustly destroy reputations, and
that the Polish or Hungarian secret-police records are much more
unreliable than the German ones. (This last comment is made with
a kind of inverted national pride.) Officers put innocent people
down as informers, or simply invented them - the so-called 'dead
souls' - in order to meet their assigned plan targets for the number
of informers. Many files were later destroyed, others tampered with,
and so on. So, instead, the secret-police files have remained in
the hands of the current interior ministry or still active security
service, and have been used selectively by them and their political
masters. Limited access has been given to just a few individual
scholars.
Yet, interestingly, this is now changing. Hungary
has provided for individuals to request copies of their own file.
The precedent is clearly the German one, although the Hungarian
rules demand even more extensive 'anonymization' - that is, blacking-out
of the names on the copies. The Hungarian Gauck Authority has a
simple but rather sinister name: the Historical Office. In sanctioning
this access, the Hungarian Constitutional Court drew heavily on
the judgements of the German Constitutional Court, notably in using
the interesting concept of 'informational self-determination'. In
plain English, I have a right to know what information the state
has collected on me and, within limits, to determine what is done
with it.
The Czech Republic has passed a law which provides
for people who were Czechoslovak citizens at any time between 1948
and 1990 to read their own files, under similar conditions. The
first applications were accepted in June 1997. Thus far there has
been remarkably little debate about individual cases, and few prominent
former dissidents have applied to see their files. Perhaps this
will change when sensational material is found and published, but
at the moment one is told in Prague that there seems to be little
public interest. There is a strong sense that the Czechs have already
'been through all this' with the great lustration debate of the
early 1990s.
Poland is now following suit. The new post-Solidarity
government has committed itself to making the secret-police files
accessible to individual citizens. When I was there in mid-November
1997, a lively debate was going on about how best to do this. Frequent
reference was made to the German experience. In the parliamentary
debate on the government's programme, the Catholic nationalist leader
of the Solidarity Electoral Alliance, Marian Krzaklewski, called
for a 'lustration archive on the model of the Gauck Authority’.
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