Transitional Justice at Constitutional Courts in Central Eastern Europe
This paper intends to analyse the manner in which Central Eastern European constitutional courts have dealt with transitional justice legislation. As bodies called to decide upon “how much deviation may be allowed from ordinary (that is, non-transitional) principles of constitutionalism and the rule of law” (Renata Uitz, 2009), these courts did not only take after the language of their transitional justice subject matter legislation, but also after the epistemic rhetoric backing laws of lustrations and opening of secret police files. Setting categories of perpetrators, disclosing the names of agents and collaborators of the political police and their participation in human rights violations, such laws were said to shed light over the functioning and the repression apparatuses of communist regime. In deciding over their conformity with the constitution, the courts themselves have engaged in interrogating not only the past and the present, but also the relation between the former and current notions of legality.
The paper will examine in detail the decisions of three constitutional courts in the region: the Romanian, the Czech, and the Hungarian ones, upon pieces of legislation concerning the opening of the secret police files and lustration. The paper will inquire into explicit and implicit manners of interrogating or putting forward historical narratives about the communist past of these countries. The main motivation of the paper is to determine indications or specifications relating to a possible role assumed by these courts in the question of dealing with the recent past of their countries. The paper argues that, against the epistemic rhetoric, these courts did not succeed in clarifying the relation between the former and current regimes, but they made the already ambiguous past narratives of the transitional justice laws even more fragmentary and little nuanced.
