Transitional Justice in Post-Communist Nations

The concept of transitional justice is relatively new in the discourse of sociolegal studies. In general, it is connected with the waves of democratization around the world that began at the end of the twentieth century. The concept possesses a teleological and an ideological dimension. Both describe interconnected aspects of the end of the process of transition to liberal democracy.

The ideological dimension provides the guide for the transitional form. In the case of post-communist transformation, the teleological dimension or aim was liberal democracy, which was recognized as a “normal” state of society and polity. Administrators of transitional justice move between two points: (1) the point of departure (dictatorship, communism), and (2) the point of arrival (fully developed liberal democracy).

Transitional justice includes the legal practices and problems faced by states and societies under transformation when law is used in two ways: as a means of transformation, and as a framework of transformation. Each form of democratization faces different challenges and transitional justice in the post-communist transformation possesses its own peculiar problems. In a peaceful transformation, the most important issue is “dealing with the past.” This involves more than dealing with the remnants or legacies of former communist regimes. Transitional justice is a constitutional problem for new post-communist social, political, and legal systems. Different post-communist countries have taken different approaches to transitional justice, with a resulting impact on the form and structure of the new regimes.

One can divide the transitional justice problem in all post-communist countries into five parts:

• relations between new and old regimes
• decommunization and lustration
• retributive justice for crimes committed under the former regimes
• rehabilitation of and compensation for the victims of the communist regimes
• restitution of property after communism