Encyclopedia of Transitional Justice, Cambridge University Press, 2013

230

Encyclopedia of Transitional Justice, Volume 2

Hungary Although there were various attempts at some type of reckoning with the past, transitional justice efforts in Hungary often ran into constitutional or political obstacles. Despite heated debates, Hungary’s transitional justice belongs to the milder types among former communist countries. At the same time, debates about the past continue to flare up regularly in political discourse. The Repressive Past

The Hungarian People’s Democracy’s (1949–1989) history includes different periods. The most repressive years were between 1949, when the multiparty system was eliminated, and 1953, when Soviet dictator Josef Stalin died. During this period, the state ´ ´ ´ security service – Allamv´ edelmi Hatos´ then AVH) – terrorized the popula´ ag (AVO tion, exercising control over both public and private life. Real or suspected opponents of the communist system, members of the propertied and bourgeois class, and those of the churches were interned, imprisoned, or sentenced to forced labor. Show trials targeted members and leaders of the communist party (Hungarian Workers’ Party – MDP). According to estimates, 3,000 people were purposefully killed by the regime and approximately three times as many were “indirect” victims, whose death could have been avoided by humane treatment. Cautious de-Stalinization (“thaw”) began after Stalin’s death, when in June 1953 Imre Nagy became the prime minister. Pressure for reforms built, and on October 23, 1956, an anticommunist uprising broke out. After two weeks of armed combat and the reorganization of public life (the multiparty system was reestablished and workers’ committees formed), on November 4, 1956, the Soviet Red Army attacked the capital and crushed the uprising. Led by J´anos K´ad´ar, the reorganized communist party (Hungarian Socialist Workers’ Party, HSWP) strengthened the communist regime with bloody repression (200 to 300 people were executed and 15,000 were imprisoned, while 200,000 fled the country), culminating in the 1958 execution of former Premier Imre Nagy and his comrades. Two amnesties (1960 and 1963) marked the start of normalization, and the K´ad´ar regime, operating under the slogan of “who is not against us is with us,” became known as the “happiest barrack” in the Soviet camp. If the 1950s were characterized by open repression and terror, after the 1960s, “liberalization” offered people relatively undisturbed private life, traveling privileges, and economic freedoms by accepting the private “second economy” in exchange for their tacit acceptance of the system. Despite the regime’s “liberal” fac¸ade, secret services (Division III/3 – domestic surveillance, or counter interior reaction group) monitored the population, especially the cultural institutions (media, theaters, universities, and churches), and continuously harassed the opposition. By 1989, approximately 170,000 people were under surveillance by the security services, which employed 50,000 agents (in a total population of 10.4 million). Informers were recruited using methods ranging from ideological conviction and promises of social advancement and privileges to threats. Sanctions for nonconformist behavior or opposition activities included the denial of privileges (passports), education, or job opportunities, in more severe cases arrests and police investigation, and in some high-profile cases forced emigration. Prison sentences, however, were rare during these years. During the 1980s, mounting economic troubles and the changing international environment led to reform movements within the party and the appearance of various

Country Studies

231

opposition groups. Inspired by the Polish example of the Round Table Negotiations, in 1989, the newly organized opposition and the HSWP negotiated around the National Round Table. Their pact paved the way to the free elections of March 1990, ousting the communists from power. The Hungarian Republic was proclaimed on the symbolic date of October 23, 1989 (the anniversary of the 1956 uprising). Division III/3 was dissolved in February 1990, less than a month before the first free elections, by the outgoing communist government. Transitional Justice

While embracing a forgive-and-forget approach, Hungary did implement a number of transitional justice programs, including restitution and rehabilitation, court trials, screening and vetting, access to secret files, and memorialization.

Restitution and Rehabilitation Rehabilitation in high-profile cases already started during the last days of the People’s Republic: on June 16, 1989, Imre Nagy and other martyrs of the 1956 uprising were given a government-sanctioned ceremonial reburial attended by 250,000 people, including cabinet members and Prime Minister Miklos ´ N´emeth, and their conviction was nullified in court later that summer. The first postcommunist parliament enacted a law about the memory of the 1956 uprising, while the second, socialist-led coalition did the same for Imre Nagy. On June 23, 2000, parliament designated February 25 the memorial day of the victims of communism (the day when, in 1947, Independent Smallholder MP B´ela Kov´acs was arrested by the Soviet authorities and deported to the Soviet Union). Act 12/1991 terminated special pensions paid for contributing to the defeat of the 1956 uprising, while those who suffered injustice caused by the state (loss of freedom or life for political reasons) between May 1939 and 1990 were entitled to compensation (22/1992). Compensation for lost property was also high on the agenda. The debate focused on redress or re-privatization. Initially two of the three members of the right-wing coalition government that took power in May 1990 (the Christian Democrats and the Independent Smallholders’ Party, ISP) favored returning nationalized or confiscated property to original owners, but the strongest coalition party, the Hungarian Democratic Forum (HDF), rejected it, and in the end this view prevailed. The only exception was the churches: they were handed back many of their former buildings deemed necessary for their religious or cultural activities (23/1991). The compensation laws instead offered vouchers for property lost after 1948 (25/1991) and between 1939 and 1948 (24/1992). Vouchers could be used to purchase property or to receive social security or pension-type payments. Approximately 1.8 million people applied for such redress. Most recipients – mainly elderly people – used the vouchers to buy the apartments they rented from the state, while many people not interested in getting property sold their vouchers to entrepreneurs. Although the ISP campaigned almost exclusively with the program of land reprivatization in order to undo the injustice of the forced collectivization during the 1950s, the Constitutional Court rejected the distinction between various forms of property. However, lands in agricultural collectives were designated for compensation, which could be bid for at auctions. While doubtless rectifying a grave injustice committed during communism, land privatization contributed to the dismantling of successful

232

Encyclopedia of Transitional Justice, Volume 2

agricultural collectives and created small, unviable, and uneconomical parcels, delivering a severe blow to a hitherto thriving Hungarian agriculture.

Retroactive Criminal Justice On September 2, 1991, deputies Zsolt Z´et´enyi and P´eter Tak´acs of the ruling HDF submitted to parliament Bill 2961 on the Prosecutability of Offenses between December 21, 1944 and May 2, 1990. This “bill of justice” proposed to amend the Hungarian Criminal Code by suspending the statute of limitation (which lapses after thirty years) for certain crimes (treason, premeditated murder, and aggravated assault leading to death) not prosecuted for political reasons. Despite the length of the time period involved, the bill’s primary target were crimes committed during and immediately after the 1956 uprising. Taking the elapsed time into account, the bill recommended that the courts alleviate or commute sentences for communist crimes without restriction, taking into consideration factors such as the age or the possibly altered character of the defendants. The bill’s sponsors argued that during the indicated period the Hungarian government did not enjoy full sovereignty because of Soviet and communist influence, and criminal prosecution was greatly influenced by extralegal political considerations (on December 21, 1944, the first provisional National Assembly convened after World War II, and on May 2, 1990, the first freely elected parliament met). Given that prosecution was often prevented or hampered by the authoritarian regime, and could only be carried out in the new Rechtsstaat (rule of law), the statute of limitation should be regarded as “tolled” (or suspended/not applicable) during the indicated period. The bill was enacted on November 4, 1991, a symbolic date, which marked the anniversary of the Soviet attack on Hungary to crush the 1956 uprising. The bill was fiercely debated both by parliament and society. The arguments focused on three main issues. The first pertained to a fundamental dilemma of transitional justice: whether the country should focus on forward-looking reconciliation and productively engage society’s energy, or satisfy society’s moral value system and sense of justice as the basis for healthy social development, as supporters argued. In this debate the opposition accused the government of trying to divert attention from pressing social and economic problems and its own inept governing. Second, concerns were raised about the length of the elapsed time, which would, on the one hand, render providing evidence beyond doubt very difficult, and on the other, as former dissident J´anos Kis pointed out, lead to the conviction of very old people more than thirty years after their crimes. But this delayed conviction defeated the purposes of criminal prosecution to prevent future crimes and prompt the convicted to atone. The third and decisive argument addressed the principles of the rule of law, which prohibited retroactive legislation. This debate highlighted differences with respect to legal theory (natural vs. positive law), the nature of transition (whether the laws of the dictatorship should be respected – here the supporters of the law referred to the Nuremberg trials), and the constitutional order of the new regime, the choice between models of “legislative supremacy” and “higher law constitutionalism.” Although the bill’s liberal and socialist opponents invoked the rule of law, its supporters also made references to it, claiming that restoring the rule of law means punishing capital crimes, and the general principles of the Rechtsstaat must not be used to leave grave violations of the law without consequences.

Country Studies

233

This was exactly the rule-of-law argument that prevented the bill from coming into ´ ad Goncz effect. President Arp´ refused to promulgate it and sent it instead to the Con¨ stitutional Court for legal review. The Court’s Resolution 11 on Retroactive Criminal Legislation of 5 March 1992 struck the law down, because it violated legal certainty, used vague language (underdefined terms like “political reason” and “treason”), and emphasized that the transition was based on legal continuity with the communist regime. Following this failure, Law 90/1993 on Procedures in the Matter of Certain Criminal Offenses during the 1956 October Revolution and Freedom Struggle had a narrower focus. It was based on international law and restricted the scope of potential defendants to those who committed violence (by firing into crowds of unarmed people) during the 1956 uprising. The law invoked international law (the Geneva Convention) by stating that in 1956, Hungary was at war and thus acts committed during the suppression of the uprising and the subsequent reprisals were war crimes and crimes against humanity, thus not subject to the statute of limitation. Although a modified version of this law passed constitutional scrutiny, only a handfull of trials were held on its basis and no more than three or four resulted in conviction and prison sentence. The European Court of Human Rights exonerated one defendant, J´anos Korbely. Thus, although Hungary made early attempts at prosecuting criminal acts committed during communism, they proved unsuccessful and disappeared from the agenda.

Screening and Vetting The secret police files and the past of citizens who acted as communist-era police informers were at the center of attention from the very beginning of Hungarian democracy. In September 1990, deputies P´eter Hack and G´abor Demszky of the largest opposition party, the liberal Alliance of Free Democrats (AFD), proposed that all secret police files be opened and made public for those interested. They argued that this would fulfill two important transitional justice goals: advance knowledge about the past and inform the people about the past of politicians who competed for their votes. It would have only covered those who filled public positions, and everyone was to be given the opportunity to contest the allegations, or resign his or her position before facing potential public disgrace. As an added bonus, such a public handling of the files could also prevent their use for blackmail, settling of accounts, or other illegitimate purposes. However, the governing coalition did not support this motion, and rumor had it that they were afraid of losing their parliamentary majority, had their representatives been screened and forced to resign. Toward the end of its term, this conservative coalition itself raised the issue of the secret service files. According to Law 23/1994 on the Background Checks of Individuals Holding Certain Important Positions (or the Lustration Act), public officials were to be screened by a three-judge committee to see whether they had carried out any activity related to domestic intelligence, were members of the World War II–era fascist Arrow Cross Party ´ in 1956/1957, or were Communist Party or the law-and-order militia squads (pufajkas) or government officials who had received information from state security services. Those found to have belonged to the aforementioned categories were called on to resign, and if they refused, their names were to be published. In the political atmosphere of that time it was assumed that the screening of those who did not inform, but only received information, was directed against the postcommunist Hungarian Socialist Party (HSP),

234

Encyclopedia of Transitional Justice, Volume 2

which by then scored high in the polls, and the inclusion of militia members was meant to ´ disqualify Gyula Horn, HSP’s leader and prime ministerial hopeful, who was a pufajkas following the 1956 uprising (the failed “bill of justice” would also have affected him). But the HSP, which won the 1994 elections with a landslide, was not significantly affected: its political heritage was well known by the citizens, so the revelations did not prove embarrassing enough for them to prompt resignation. The Constitutional Court found some parts of the law unconstitutional, based on the right to privacy. The Court thus restricted screenings to public persons, excluding, for example, lower-ranked judges and university professors. An amended version (67/1996) passed by the socialist-liberal coalition further restricted screening to those public officials who have to take an oath before parliament or the president of the Republic, or are elected by parliament. Although the statute would have lapsed by 2000, the conservative cabinet led by Viktor Orb´an and his party (Fidesz) extended it for another four years (93/2000) and, despite the Court’s constitutional reservations, increased the number of people to be screened from 900 to 17,000, including judges, prosecutors, and national and local party leaders. By this time the idea of lustration became closely tied with the ongoing political battles, and support for screening divided along political affiliation: the right insisted on lustration, while the left wanted to take the issue off the agenda. Many argued that the nature of the Hungarian transition did not allow the exclusion of former elites from politics. The liberals continued insisting on the complete openness of the files, without sanctions going beyond public knowledge. In 2002, following a narrow socialist-liberal electoral victory, P´eter Medgyessy became the prime minister of the new HSP-AFD coalition. Soon afterward, the right-wing daily Magyar Nemzet published a document attesting that during the late 1970s he was a secret officer of Division III/2 (counterintelligence). Based on that information, the right-wing opposition demanded his resignation, and the incident caused temporary fractures within the coalition. While legally Medgyessy could assume his position and was not compelled to disclose his past, the case directed attention at the shortcomings of the screening law. While public persons had to be screened for III/3 involvement, details about other secret services, such as counterintelligence, remained classified because they continued operation, once again raising the problems of continuity between the “national interest” of the communist and postcommunist regimes. Until then there had been a general consensus that only those working for domestic intelligence could be condemned as contributing to the maintenance of the communist system, whereas other branches of secret services carried out activities vital for the defense of national interest. The case put lustration back on the political agenda. A parliamentary commission led by AFD deputy Imre M´ecs (a former death row inmate after the 1956 uprising) investigated the secret service connections of all postcommunist ministers and deputy ministers. The right-wing opposition refused to participate in the commission, which nevertheless presented its finding to the Speaker of Parliament, suggesting that since 1990, every cabinet had members who had collaborated with the communist security services, but there were no further consequences. The Constitutional Court declared the commission unconstitutional, as it violated fundamental rule of law principles such as legal certainty and predictability. At the same time, the screening law was taken up anew. The AFD again insisted on complete openness and the accessibility of all files, while Fidesz proposed a Czechtype lustration excluding from public life everyone connected to any branch of the secret services, as well as former members of the Politburo, Central Committee, and

Country Studies

235

independent party secretaries. In 2003, the government amended the 1996 law to include all secret service divisions in the screening law, and wanted to extend vetting to the churches, but this proposition was voted down in parliament. Two years later, after the court ruled that clergy members were public persons, demands for a thorough investigation of churches mounted.

Access to Secret Files Citizens’ access to the secret service files concerning them was regulated by the Constitutional Court verdict 60/1994 on the screening law, which granted such access. Act 67/1996 created the History Office for this purpose, but it provided only limited access to the files by victims: the name of the police agent who reported on them was not disclosed to victims. This practice came under widespread criticism, because most found that the informers’ right to privacy enjoyed disproportional advantages over the victims’ (and society’s) right to information. Following the scandal of his past involvement with Direction III/2, Prime Minister Medgyessy invited experts to formulate suggestions. Led by Lˆaszlo´ Solyom, former Constitutional Court Chief Justice (and President of the Republic since ´ 2005), the committee concluded that because before the transition Hungary was not a rule-of-law state, the secret service past must not be classified, although exceptions prompted by authentic national interest can be made. Act 3/2003 founded, as the legal successor of the History Office, the Historical Archive of the Hungarian State Security where all secret documents are brought together. There, the names of informers are made available to their victims, and researchers and private persons have access to information on public figures.

Memorialization and Rewriting of History Since 1989, a number of monuments, memorials, and museums have been dedicated to the memory of the victims of communism. The best known is the House of Terror, opened in 2002 in Budapest (see separate entry). But memorialization has occasionally been tainted by controversy. The local press has debated at length the fact that in the cemetery dedicated to the victims of the 1956 Revolution, the so-called National Place of Memory, a number of World War II criminals are buried. The new history textbooks present new approaches to the communist period, the 1956 revolution, and the K´ad´ar era. They unequivocally condemn communism as a dictatorship and detail the post1956 reprisals, naming some of the best-known victims. They also mention the role of opposition movements and emphasize the damage even the more benign K´ad´ar regime inflicted on the society. Conclusion

Hungary experimented with all types of transitional justice: compensation, access to files, retroactive criminal justice, and vetting. However, constitutional (rule of law) principles were interpreted to significantly constrain the possibilities at the disposal of lawmakers. Furthermore, because debates about transitional justice soon became an integral issue in partisan struggle, lustration lost its initial significance as a method of coming to terms with the past, and was used as a weapon against political opponents. This is clearly demonstrated when compromising information is revealed, as public

236

Encyclopedia of Transitional Justice, Volume 2

reaction is usually determined by political sympathies. That a significant segment of the population remembered the K´ad´ar regime not as the period of repressive dictatorship but of relative calm, security, and moderate prosperity quelled public interest in bringing former communist officials or secret service agents to justice. At the same time, political analysts and intellectuals still insist on a thorough investigation of the files and blame many ills in political and social life on the lack of a complete and thorough reckoning with the past. Csilla Kiss Cross-reference: Access to Secret Files; Court Trials for Redress; Ex Post Facto Issues; History Office; Lustration; Prosecute and Punish; Purges. Further Readings ¨ ´ [Agents and files]. Budapest: Soros Foundation. Halmai, G´abor, ed. 2003. Ugyn¨ ok¨ok e´ s aktak Kiss, Csilla. 2006. The Misuses of Manipulation: The Failure of Transitional Justice in Post-Communist Hungary. Europe-Asia Studies, 58(6): 925–940. Oltay, Edith. 1993. Hungary Attempts to Deal with Its Past. RFE/RL Research Report, 2(18): 6–10. . 1994. Hungary’s Screening Law. RFE/RL Research Report, 3 (15): 13–15. Stan, Lavinia. 2007. Goulash Justice for Goulash Communism? Explaining Transitional Justice in Hungary. Studia politica, 7 (2): 269–292.

Iraq The 2003 overthrow of Saddam Hussein’s government by the U.S. invasion provided Iraq the opportunity to pursue transitional justice to gain accountability and justice for the egregious human rights abuses perpetuated by the ruling Baath party. Neither the United States, as the occupying power, nor the post-Saddam Iraqi government developed an integrated strategy for transitional justice. Iraq’s main transitional justice institutions, the Iraqi High Tribunal and the Higher National De-Baathification Commission (see separate entries), contributed to the sharpening of sectarian differences between Arab Sunnis and Shias, which fueled the civil war of 2004–2007. Sectarianism remains a major obstacle to social reconciliation. Repressive Past

Iraq’s human rights record has been dismal for the past thirty-five years. The Baath party regime that seized power in July 1968 arrested hundreds of its opponents, staged show trials, and executed more than fifty people, many of them publicly hanged, in its first eighteen months in power. Through arrests and executions, it all but destroyed the rival Communist Party. It expelled 40,000 Fayli (Shia) Kurds to Iran in 1971–1972. After the bloody suppression of the Kurdish revolt in 1974–1975, the Baath regime forcibly displaced hundreds of thousands of Kurds who lived along the Iranian and Turkish borders. Some were relocated to larger towns, others to the south; their villages were razed. The regime also pursued an Arabization policy in Kurdish areas in an effort to change the demographic balance; Arab settlers were brought in by the regime to replace forcibly dislocated Kurds. As opposition to the secular and socialist Baath party surfaced in the Shia-dominated south, the regime cracked down on the Shia religious establishment,