Retroactive laws and notions of retrospective justice:key aspects of the German and Polish experiences

This paper examines the similarities and differences of the legal discourses on the prohibition of retroactive laws within the European human rights framework, and more broadly, a temporal framework that accompanies questions of historical injustice. The paper considers the significance of the notion of retrospective justice in post-1989 Europe, and more specifically in Germany and Poland. From a criminal law perspective the idea of punishing people for an act that was not a crime at the time of commission is regarded as reprehensible. However, a different temporal narrative was evoked with the fall of Communism in 1989 that was based on responses to atrocities committed during the Second World War. The paper outlines the legal context that frames retrospective justice, nationally and regionally, and considers the importance of permitting the law to work retroactively. By examining certain aspects of the German and Polish experiences, the paper concurs that retrospective justice in post-Communist Europe contributes a specific set of problems to the field of transitional justice, none of which sit comfortably with one solution, and all of which demonstrate that narratives on select chapters of Communist histories remain unfinished. The narratives also show that transitional criminal justice has taken on a permanent character in legal discourses, in which retrospective justice takes on a dynamic meaning

The criminalisation of symbols of the past:expression, law and memory

This article 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, critically assesses the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past that pertained to fascist, Communist, or other totalitarian content. This article considers the Tribunal’s ruling within three important contexts: firstly, the European, where the concept of totalitarian crimes has become a European question and subject of European human rights, namely the freedom of expression; secondly, post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, transitional justice, where the criminalisation of symbols of the past has attained a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. This article discusses the two case studies of most relevance to Poland, namely that of Germany and Hungary. Reference is also made to the Baltic States, where there has been a concerted effort, together with Poland, to bring the notion of totalitarian crimes and histories to the attention of Europe. The article concurs that the cases concerning the use of symbols is an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal philosophical complexities of the crime, political realities, and key dimensions of transitional justice and its relationship to expression, law and memory

Politics, law and justice in people's Poland:the Fieldorf file

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