Search

Studies of law and visual culture address important aspects of symbols of justice,1 the courtroom venue itself,2 and how representations of harm, justice and violence possess a transformative power...

'There has for a very long time been a strong feeling against making legislation, and particularly criminal legislation, retrospective […] I use retrospective in the sense of authorising people being punished for what they did before the Act came into force'. 'Writing the recent history of the Central and Eastern part of Europe is unlike the work of the Western historian, who can turn to published sources, contemporary reports, memoirs by participants and eyewitnesses, whose work is embedded in solid, mostly normalized and consolidated public memory. Usually it is not the historian who is the messenger there, unlike the less fortunate part of the world, where the message is, more often than not, bad news. The recent history of Central and Eastern Europe is the history of bad times'. This chapter examines the similarities and differences of the legal discourses on the prohibition of retroactive laws within the European human rights framework. It also considers the significance of the notion of retrospective justice in the post-dictatorial period (post-1989) in Europe, and more specifically in Germany and Poland. It begins by setting out key legal definitions in national and regional legal frameworks in order to determine what underpins the prohibition on retroactive laws. An examination of key German, Polish and European jurisprudence reveals that the legal narratives on retrospective justice run parallel and in opposite directions, revealing cracks in consensual histories that bring historical sensibility and issues into sharp relief. Retrospective justice in post-Communist Europe contributes a defined set of problems to the field of transitional justice, beginning with the challenges posed by statutes of limitations and ending with unfinished narratives on select chapters of Communist histories. RESEARCH QUESTION This chapter examines the similarities and differences in the legal discourses on the prohibition of retroactive laws within the European human rights framework. It also considers the significance of the notion of retrospective justice in the post-dictatorial period (post-1989) in Europe, and more specifically in Germany and Poland. From a common law perspective, for example, the idea of punishing people for an act that was not a crime at the time of commission is regarded as loathsome.

This paper examines the criminalisation of symbols of the past. It considers the 2011 judgment of the Polish Constitutional Tribunal. In this compact and well-ordered decision, the Tribunal, with reference to key European examples, assessed critically the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past pertaining to fascist, Communist or other totalitarian content. Its ruling, which found amendments to the law in Poland that tightened up restrictions on the use of totalitarian symbols to be unconstitutional, is considered within three important contexts: first, the broad European context, where the concept of totalitarian crimes has become subject to EU human rights legislation relating to the freedom of expression; second, the context of post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, the context of transitional justice, where criminalising symbols of the past has become a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. The paper discusses the two case-studies most relevant to Poland, namely those in Germany and Hungary. Reference is also made to the Baltic States, which, together with Poland, have made a concerted effort to bring the notion of totalitarian crimes and histories to the attention of Europe. The paper concurs with the contention that cases concerning the use of symbols provide an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal and philosophical complexities of criminal uses of symbolism, the political realities, and the key dimension of transitional justice and its relationship to expression, law and memory.

This article examines the case against the Polish resistance fighter August Emil Fieldorf and his subsequent trial. Judicial officials within, or working intimately with, the Soviet secret police made decisions affecting many lives in Poland in 1944-1956. A consideration of the trial proceedings and the backgrounds of selected judicial officials provide a better understanding of the nature of Stalinist justice. Key issues underpinning the trial, related to political contexts, legal maneuverings, and broader considerations surrounding the defendant through the eyes of his persecutors, shed light on the hidden mechanism of Stalinist justice in operation and what constitutes a judicial crime. While its focus is Fieldorf, this article argues that the Polish case study can be instructive in analyzing the ways in which the law was used as a political weapon in other states and regions with similar experiences of totalitarian rule.