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Divergent Responses to a Common Past:
Transitional Justice in the Czech Republic and Slovakia
 

NADYA NEDELSKY

Abstract:
This article addresses the question of why, despite having shared a single communist regime and the revolution against it, the Czechs and Slovaks have dealt differently with that regime’s former high officials and secret police agents, files, and collaborators. I argue that this divergence challenges theories that focus on transition type, levels of Communist regime repression, and post-Communist political developments, and propose that a stronger influencing factor is the level of the preceding regime’s legitimacy, which differed in the two halves of the Czechoslovak federation after 1968.

Keywords: Central Europe, Czech Republic, Czechoslovakia, de-communization, lustration, Slovakia

Though the Czechs and Slovaks shared a communist regime from 1948 until 1989, the two nations have responded to the darker elements of this common past in strikingly different ways. They did initially conceive a common strategy: in 1991, Czechoslovakia was the first post-communist state to pass lustration legislation, which sought to exclude the previous regime’s high political officials and secret police personnel and collaborators from a range of public offices during the early years of democratization. But after the law’s passage, the Czech and Slovak responses to the previous regime diverged. The Czech Republic continued to pursue lustration after 1993, extending the law’s period of enforcement twice, set up a framework for the investigation and prosecution of crimes committed under the Communist regime, and allowed progressively broader public access to the files kept by the secret police. Slovakia’s political leadership has, by contrast, shown little interest in such „cleansing” of the public sphere. The lustration law was never seriously enforced in Slovakia and quietly expired in 1996. Few efforts have been made to prosecute former officials, and Slovakia was the last post-communist state in Central Europe to grant its citizens access to communist-era secret police files.

The contrast between the two cases raises the question of why the Czechs and Slovaks have dealt so differently with the former regime’s leaders and its secret police personnel, collaborators, and files. This question poses challenge to transitional justice theories. An important work dealing with this topic is Huntington’s The Third Wave, which explains why leaders of new states respond to the past in particular ways.¹ But since its publication, developments in Eastern Europe prompted scholars to question Huntington’s theory, including the reasons why Huntington’s analysis of the Czechoslovak case did not anticipate the lustration law. Though these studies offer a compelling account of the reasons why state leaders chose this strategy, none fully confronts another important development: the Czechs implemented the law and the Slovaks did not. The lack of focus of early treatments on this issue reflects the tendency – following Huntington – to see Czechoslovakia as a single case study, rather than studying its constituent nations comparatively. Nor has this divergence been the subject of wider scholarly interest: since the „Velvet Divorce”, attention has followed the progress of transitional justice in the Czech Republic to the virtual exclusion of the Slovak case.

In this article I trace the evolution of both Czech and Slovak transitional justice and the scholarly analysis of it. I lay out Huntington’s theoretical framework, the development of lustration after the Czechoslovak Velvet Revolution, and how this development challenged Huntington’s analysis of Czechoslovakia. I then trace the divergence of Czech and Slovak responses to their common past, and suggest an explanation of this divergence, focusing on the role that the previous regime’s level of legitimacy plays in shaping transitional justice.

Huntington’s „Torturer Problem”

According to Huntington, three main types of transition from authoritarian rule characterized the „third wave” of democratization. In the Bulgarian and Hungarian „transformations”, the leaders of an authoritarian regime play the primary role in ending that regime and democratizing the state. „Replacement” occurs when the authoritarian regime is dominated by staunch opponents to democracy (East Germany and Romania). In such cases, the transition takes place when opposition to the regime gains strength and the government weakens to the point that „the government collapses or is overthrown.”² Finally, there are the Polish and Czechoslovak „transplacements”, in which neither the regime nor the opposition is powerful enough to enforce its vision alone, and so democracy is brought about through negotiations.            

The outcome of „the torturer problem”–whether to pursue a policy of „prosecute and punish or forgive and forget” with regard to the officials of the authoritarian regime who „blatantly violated human rights” – is predicted by transition type. While officials of relatively strong regimes that transform themselves can declare amnesties, officials in regimes that collapse and are replaced are not in a position to make demands. Replacements are thus far more likely than transformations and transplacements to result in the prosecution and punishment of authoritarian officials. Huntington observes that„[i]n Eastern Europe, apart from Romania and East Germany, the initial overall tendency was to forgive and forget.” He also notes that East European states were constrained in prosecutions and disclosures because the regime was so encompassing, and because „so many people accepted and collaborated with it”. Finally, he cautions that favorable transition type is not in itself sufficient to secure justice, if that justice is not swift: „Democratic justice cannot be summary justice of the sort meted out to the Ceausescus, but it also cannot be slow justice. The popular support and indignation necessary to make justice a political reality fade; the discredited groups associated with the authoritarian regime reestablish their legitimacy and influence. In new democratic regimes, justice comes quickly or it does not come at all.”³

Lustration in the Velvet Revolution’s Aftermath     

The 1989 „Velvet Revolution” took place over ten days, beginning with a student demonstration on November 17 and culminating in a general strike on November 27 that involved millions of Czechoslovak citizens and shook the regime to its core. Within two weeks, President Gustav Husák was replaced by former dissident Václav Havel, who appointed a non-communist Minister of Internal Affairs, Richard Sacher to disband the State Security units, including the secret police (StB).⁴ The following spring, in anticipation of the first free parliamentary elections, Havel invited parties to screen their candidates for StB ties through Sacher’s ministry. While the Communist Party of Czechoslovakia and a few others passed on the offer, most parties vetted their candidates. The results were kept secret, and StB collaborators were not required to withdraw their candidacies.

Problems soon arose around the StB files. Sacher was accused in the disappearance of some files and of the selective publication of others. The controversy intensified when Deputy Interior Minister Jan Ruml publicly accused the Czechoslovak People’s Party leader Josef Bartoncik of having worked for the StB for fifteen years.⁵ This and other scandals prompted Sacher and his republican-level Czech and Slovak counterparts, Antonín Hrazdira and Vladimír Mečiar, to express concern about the direction screening was taking. As they left office after the elections (and Mečiar became Prime Minister of the Slovak Republic), the three „called on the federal government to address the sensitive problem of vetting very soon and to acknowledge its possible destabilizing effects.”⁶       

A 1991 Federal Assembly resolution required all Federal Assembly deputies and employees, the Prime Minister’s Offices staff, and federal ministers and their deputies to be screened for StB collaboration. A commission checked the secret files for evidence that a person knew he or she was considered an informer, had either signed an agreement or hand-written a report, and was named in more than one file. If the commission unanimously decided that a legislator had collaborated, the person had fifteen days to either resign or have his/her name disclosed to the Assembly. Parliamentary immunity prevented MPs from being forced to resign. Any other targeted employee implicated in the files would have the choice of leaving voluntarily or being dismissed. In March, the commission presented its report, and Commission spokesman Petr Toman read aloud the names of ten deputies who had refused to step down. Two months later, the commission made two more names public.

Disclosures of collaborators found throughout the federal government followed, prompting the Federal Assembly to begin work on legislation to regulate and systematize screening. The lustration law (451/1991) applied to persons who, between February 25, 1948 and November 17, 1989, were StB members and agents, owners of „conspiration apartments”, knowing StB collaborators, members of the People’s Militia, students at KGB schools for more than three months, Communist Party officials from the district level up, political officers in the Corps of National Security, and/or members of committees that conducted purges in 1948 or after August 21, 1968.⁷ Such persons were forbidden for five years from employment in: most elected or appointed positions in the federal and republican levels of government; rank above army colonel; management positions in state-owned enterprises; top positions in state-owned radio and television; the official press agency; the supreme court, judgeships, and prosecutorial posts; and top academic positions. Employees or applicants had to be certified as „lustration-positive” by the Interior Ministry or face dismissal, demotion, or the rejection of their application for employment. Adult citizens could also have their files reviewed, though they could not see the files themselves. Radio and television producers, publishers, and political parties could have a staff member „who takes part in the shaping of the intellectual contents of the communication media” screened if they obtained permission from the employee,⁸ and the results could not be publicized without the person’s consent. Any person could prompt the investigation of a senior official after paying a deposit of 1,000 crowns ($35 dollars), which they would lose if the person had a clean record. The vote on the law indicated partisan differences: all deputies of the right-of-center Civic Democratic Party voted for the law, and all deputies of the populist-nationalist Movement for a Democratic Slovakia voted against it. The law was set to expire on December 31, 1996.

Responses and Alternatives to Huntington

These developments prompted John Moran and Michael Kraus to challenge Huntington’s analysis of the Czechoslovak case. As they point out, Huntington argues that transplacements involve a balance of power between regime and opposition that produces a negotiated transition to democracy, and thus they do not produce new regimes that vigorously seek justice for the preceding regime’s human rights abusers. This makes it unlikely that Czechoslovakia would pursue lustration. Admittedly, Huntington’s analysis was published before the law was passed. Still, lustration laws represent a combination of truth and justice, as Huntington defines them. While such laws do not involve criminal prosecutions, exclusion from employment by the democratic state could be considered a form of punishment. Lustration laws thus fit into Huntington’s model of the torturer problem by straddling questions of truth and justice.

While Moran and Kraus identify the lustration law as a problem for Huntington’s theory, they provide different correctives. Kraus argues that it is not Huntington’s model that is flawed, but his classification of the Velvet Revolution as a transplacement. For Kraus, the Czechoslovak transition represented replacement: „[b]ecause it resisted reforms on the Hungarian or Polish model to the bitter end, the Communist leadership in Prague was in an exceptionally weak position to stem the tide of protest that swept all the East European capitals.”⁹ Thus, „the outcome of the negotiations reflected almost wholly the preferences of the opposition.” When the Czechoslovak case is reclassified as replacement, it conforms to Huntington’s predictions.

Kraus’s view of the Velvet Revolution as a „replacement” is in agreement with Kitschelt, Mansfeldova, Markowski, and Tóka’s classification of the Czechoslovak case as an „implosion of the old order” and Claus Offe’s as a „capitulation of the old regime.”¹⁰ This lends weight to Kraus’s designation, as both Offe’s and Kitschelt’s typologies of the transitions from communist rule are deeply informed by the patterns and particularities of Eastern European states’ histories than Huntington’s. While it does not lead Kraus to reject his theory, the inaccuracy of Huntington’s classification of Czechoslovakia indicates the need to explore transitional justice issues with reference to more historically grounded accounts of the East European transitions.

Huntington, Offe, and Kitschelt use similar frameworks to study regime change. Each identifies three types of transition: what Huntington calls replacement, Offe calls capitulation, and Kitschelt transition by implosion of the old order; Huntington’s transplacement is Offe’s party competition/elections and Kitschelt’s negotiation; and Huntington’s transformation resembles Offe’s compromise and Kitschelt’s transition by preemptive reform. The discrepancies in case classification point to important differences in analysis.¹¹ While Huntington uses transition type as his crux, Offe and Kitschelt place transition type among other factors in their studies of how the past shaped the direction and outcome of the transitions. Among these are elements of the relationship between state and society that may both reflect and bear on legitimacy levels, such as the communist rulers’ use of repression, co-optation, and toleration of dissent, as well as levels of internal opposition.

Kitschelt emphasizes the importance of such factors in defining communist regimes, which in turn affected transition type and subsequent state-building. He identifies three communist regimes types, based on whether elites rely on a „formal-rational bureaucratic state apparatus” or a more informal administration based on clientelism and corruption, and on the methods through which elites sought to ensure the population’s compliance.¹² Patrimonial communism was established in largely agrarian societies lacking any substantial tradition of political pluralism. To enforce popular compliance, patrimonial rule uses strong repression and co-optation into vertical clientelist networks, and meets its demise through preemptive reform. There is little elite turnover in post-communism. National-accommodative communism is found where socialist/communist parties were weak in before communism and bourgeois and agrarian opposition was substantial. In the post-Stalinist period, these regimes relied more on co-optation than repression. They ended through negotiation, and thereafter the post-Communist party had a decent chance of becoming a viable political player. Bureaucratic-authoritarian communism is typical where significant political pluralism, including a well-established communist party, exists before communism. They rely more on repression than co-optation. Resistant to the flexibility exhibited by national-accommodative regimes, these regimes end through implosion, after which the old elites have little chance of reassuming influential political positions.

Returning to the specific responses to Huntington, Moran finds his framework flawed. With regard to Czechoslovakia, Moran argues that „in spite of the ‘transplacement’ nature of the transition… calls for punishment” – represented by the lustration law – „have overwhelmed those for forgiveness.”¹³ He argues that the psychological variables of ‘exit’ (the option to leave the country) and ‘voice’ (the option of political dissent), as they existed under communism, are stronger predictors than transition type of how new regimes will approach the „torturer problem.” The repression of those who „felt strongly about political issues” produced a deep-seated animosity toward the authoritarian regime, and thus „the outcome of the ‘torturer problem’ can be looked upon as a pressure cooker, where exit and voice provide for a pressure release. Where the release is not allowed, the former torturers face explosive situations in the post transition period.”¹⁴ In the Czechoslovak context, Moran argues that because the communist regime allowed neither exit nor voice, those citizens who did not risk persecution through dissidence began demanding vengeance after democratization. „The fact that they have a ‘guilty conscience’ seems applicable to those who felt strongly about political issues but did not act...As more and more non-exiters/not-voicers gain in power, the tendency towards prosecution becomes more pronounced.” Guilt produced by repression and channeled into vengeance is thus Moran’s key factor in explaining the Czecho-Slovak lustration law.

Given when these studies were written, neither Moran nor Kraus could address the issue of differences between Czech and Slovak approaches after the federation split. More recent accounts have not focused on this divergence either, leaving Slovakia out. Newer analyses have moved away from both Huntington and Moran’s focus on the political past to emphasize recent political developments such as the dynamics of party competition. Writing in 1996, Helga Welsh argues that while „the extent of political repression and penetration of society by state security forces” and „the impact of different modes of transition” are important, „increasingly… the ‘weight of the past’ is being replaced by the ‘politics of the present.’”¹⁵ A key factor is the former communists’ electoral strength, as the weaker they are, the easier it has been to move ahead with decommunisation.

Kieran Williams, Aleks Szczerbiak and Brigid Fowler argue that the key variables determining the nature of lustration legislation in the Czech Republic, Poland, and Hungary were the differing access of former opposition groups to political power, and their ability to put together a legislative coalition supportive of lustration.¹⁶ They identify five factors supportive of such legislation, arguing that „None of these five sources of the demand for lustration – specific security service related incidents [scandals caused by revelations of connections of highly placed authorities to previous security services], disillusionment with broader post-Communist outcomes among some elites, the political needs of the post-Communist right, the impact of earlier lustration efforts, or a public demand for information – had much to do with^{17 18} the nature of the preceding Communist regime or the exit from it.„¹⁹ Even more than Welsh, Williams et al emphasize the „politics of the present.”

A Comparison of Czech and Slovak Responses to the Communist Past

Lustration. The Czech Republic has the longest record of continuous lustration in the post-communist world. Though the original lustration law was to last five years, the Czech Parliament prolonged its lifespan twice, overriding President Havel’s veto both times. In 1995, it passed a five-year extension and in 2000 it extended it until new civil service and security laws are passed. The extended lustration law added an exemption for persons born after December 1, 1971. From 1991 to 2001, the Czech Interior Ministry processed 402,270 lustration certificates.²⁰

Slovak leaders evaded lustrating. Before the 1990 elections, several parties asked that their candidates be screened, though the Slovak National Council did not require this. The commission established for this purpose had problems gaining file access, and screening results were not disclosed. In 1991, the Council set up a commission to produce regulations for screening at the republic level.²¹ A resolution called for investigations of deputies and high-ranking officials, but no law regulating the process was passed and little screening was accomplished.²² The federal law „had only a formal effect” in Slovakia before and after the „Velvet Divorce.”²³ In 1994, the Mečiar government sought a Constitutional Court judgment on the lustration law’s constitutionality and its compatibility with international human rights agreements. The Court denied this petition, but the law was allowed to expire in 1996 without been invoked by the new state.²⁴ Although passage of the 1991 lustration law was a „Czechoslovak” decision, lustration itself has been largely a Czech pursuit.

Criminality and Criminals of the Former Regime. In 1993, the Czech Republic passed the Act on the Illegality of the Communist Regime and Resistance to It. Article 2 declares the Communist regime „criminal, illegal, and contemptible” and the Czechoslovak Communist Party „a criminal and contemptible organization.”²⁵ Article 5 exempts crimes committed during the regime from statutes of limitation if the perpetrator was not convicted or had charges dismissed because of „political reasons incompatible with the basic principles of the legal order of a democratic state.” The Constitutional Court upheld the Act when 41 deputies challenged it, affirming in its ruling the illegitimacy of the preceding regime.²⁶

This Act laid the groundwork for the definition of the communist authorities’ actions as crimes and their investigation and prosecution. In 1995, the Office for the Documentation and Investigation of the Crimes of Communism (ÚDV) was established. By October 2000, it had investigated 3,083 cases, and as of mid-2001, it had prepared 160.²⁷ Of these, nine were prosecuted and sentenced. Almost 2,000 cases were dropped because of presidential amnesties, statutes of limitation, or the death of witnesses or suspects. In 1999, Parliament extended the statute of limitations for serious communist crimes, allowing the ÚDV to continue investigating cases. (For example, in 2002, former Czechoslovak Premier Lubormir Strougal was tried and acquitted for abuse of power in connection with the killing of three people by communist secret police in 1949.²⁸)

The Slovak Parliament also passed a law on the immorality and illegality of the Communist regime. The 1996 law is a modified version of the original bill, having changed the designation of the Communist Party from „a criminal organization responsible for violating human rights and spreading terror” to „a party which did not prevent its members from committing crimes.”²⁹ The main support for the bill came from two staunch political rivals, Mečiar’s HZDS and the center-right Christian Democratic Movement (KDH). In 1999, the Justice Minister and former dissident Ján Čarnogurský (KDH) set up a Department for the Documentation of Crimes committed by the Communist Regime to provide legal advice for people seeking restitution or rehabilitation for incarceration or persecution by Communist authorities. Most of the claims it received concerned compensation for job or property loss, and the office has made rather slow progress on these.³⁰ The Minister’s original plans were more expansive: he had „tried to set up an Office for the Documentation of the Crimes of Communism, but did not find support from his coalition and the office turned into just a two-member department in the Ministry of Justice.”³¹ Eventually, its duties were passed into the mandates of the Institute for National Memory (discussed below) and the Ministry of Justice’s Department of Rehabilitation and Redress.

Although the Slovak government has shown little interest in prosecuting former communist officials, in 2001 a Bratislava Military Court convicted the last chief of the Czechoslovak Secret Service, Alojz Lorenc, of abuse of office. Lorenc had been convicted in the Czech Republic in 1992 of offences against 300 people, but the enforcement of his four-year sentence was complicated by the federation’s split. As Lorenc refused to leave Slovakia, Slovak authorities prosecuted him for ordering and organizing the preventive detention of 11 people during the Velvet Revolution. He received a 15-month suspended prison sentence and three years’ probation.

Both the Czech and Slovak Parliaments have denounced the previous regime as „illegal”, though the Czech Parliament did so in stronger terms. The ramifications of this declaration have been different in the two states: the Czechs have used it as a framework for the prosecution of former officials, while criminal justice has been nearly absent in Slovakia. At the same time, both the small number and actual outcome of the prosecutions in the Czech Republic indicates that the contrast between the two countries on this issue should not be overstated.

File Access. In 1996, the Czech Parliament allowed citizens to examine the files kept on them by the StB, with the names of third parties deleted. Access to the files was broadened in March 2002, when the Czech Parliament passed a law allowing all Czech citizens over 18 to look at their personal files, files containing personal data, entries recorded by means of intelligence technology or monitoring, and StB personnel files. Files that could endanger the state’s security interests, human lives, or foreign agents remain closed.³² Files are closed to foreign citizens. A list of all the StB’s collaborators was released to the public after one year. In 2004, access was further broadened, and protections of personal data lifted, making most of the information in the files publicly available.

In Slovakia, Parliament opened the secret police files in 2002, and then overrode a veto by President Rudolf Schuster the following month. The law, proposed by former dissident and Czechoslovak Interior Minister Ján Langoš, established an Institute for National Memory, where citizens can read their files. The Institute also gathers documents on crimes committed during communism and the Slovak Nazi-allied state that existed during World War II. Files that could „pose a threat to human life and public interest”, those kept and foreign nationals, and the personal data of persecuted individuals remain classified.³³ The Institute published a list of names found in the StB files (including those characterized as „enemies of the regime”) on the internet in the fall of 2004. Having lagged somewhat behind, Slovakia has now joined its Central European neighbors in opening the secret police files to its citizenry.

Thus, the Czechs and Slovaks have taken very different approaches to lustration and the prosecution of former officials. The Czechs also passed legislation allowing file access six years earlier than the Slovaks. While frustrations and controversies have accompanied the workings of transitional justice in the Czech Republic, it can be concluded that Czech political leaders have been far more interested in its pursuit than have their Slovak counterparts. The question is: why?

What explains the divergence? Let’s return to the theories offered by Huntington, Moran, and Kraus. All three scholars treat the former Czechoslovakia as a single case study. They hold the factors that they regard as critical to producing particular approaches to transitional justice in common for the Czechs and Slovaks: for Huntington and Kraus, the transition type and broad complicity, and for Moran, the levels of exit and voice allowed by the Czechoslovak Communist regime. The problem that has emerged over time, however, is the widening difference in the Czech and Slovak outcomes to the „torturer problem.” One Czechoslovak successor state has pursued a policy of „prosecute and punish” and the other, one closer to „forgive”, if not „forget.”

It appears that if transition type and „exit and voice” are held in common for the two cases, then neither can be the decisive factor shaping approaches to transitional justice. If we question whether the „pressure” in the „cooker” was the same for the Czechs and Slovaks, Moran’s theory points in a promising direction. What if the level of repression was higher in one republic than the other? This raises the further questions of why the Communist regime would treat the two nations differently, and whether the nature of the relationships between Communist political elites and other segments of society would shed any light on the question of the how subsequent regimes reacted to their predecessors. Huntington states that justice must be swift to be realized because „[t]he popular support and indignation necessary to make justice a political reality fade; the discredited groups associated with the authoritarian regime reestablish their legitimacy and influence.”³⁴ Welsh and Williams argue that the political power of post-communist parties, relative to post-opposition parties, is important. Is Huntington correct that the return of discredited elites to legitimacy and positions of influence is inevitable? Should the dynamics of their competition with new elites over lustration be seen as having little to do with „the nature of the preceding Communist regime”, as Williams argues? Or are they shaped by legacies of the relationships between that regime and groups within the society?

The factor that ties all the above questions together is the level of legitimacy of the Czechoslovak communist regime in the two republics from the end of the Prague Spring onward. By legitimacy I mean the extent to which people view a regime as acting in accordance with acceptable standards and principles of governance. I argue that the lower levels of regime repression in Slovakia both reflected and produced a higher level of regime legitimacy than existed in the Czech lands. The communist regime’s higher level of legitimacy in Slovakia contributed to a lesser interest in transitional justice there than in the Czech lands.

The Communist Regime’s Legitimacy in the Czech and Slovak Republics

The Post-Prague Spring Communist Regime. Though gauging the legitimacy of an authoritarian state that limits freedom of speech is not a straightforward task, one indication that the population finds the regime illegitimate is the development of political dissidence. In Czechoslovakia, dissidence carried a price that many found too high and it is difficult to assess the breadth of opposition to the regime. While only a small minority of Czechoslovak citizens actively opposed the regime, there were real differences in the levels and substance of Czech and Slovak dissidence. The reasons for these differences may provide insight into the two nations’ perspectives on the Communist regime’s legitimacy from the post-invasion period onward.

The invasion occurred on August 21, 1968, when Soviet tanks ended the Prague Spring. The only major reform proposed during the Prague Spring that was carried forward was the federalization of the centralized state along ethno-national lines. This was a Slovak victory: while the Czech reformers tended to demand democratization of the state, the Slovak priority had been the realization of Slovak national sovereignty through federalization. The combination of the fact that these Slovak demands had „impeccable Soviet credentials” and that the Slovak Communist reformers had been less interested than their Czech counterparts in political liberalization allowed the post-invasion regime leaders to hold Slovakia „up to the Czechs as a loyalist region that succumbed less to the reactionary virus”.³⁵ During this period, „ideologically sound” Slovaks filled the vacancies left by purged Czechs, who were demoted to menial jobs. There were purges in Slovakia as well, but they were less severe: only 17 percent of Slovak Party members were purged, compared with 42 percent of the Czech Party.

From then onward, repression was significantly stronger in the Czech lands than in Slovakia. Over 1.5 million Czechs „were directly or indirectly affected in their efforts to earn a living, or their careers progressed only up to the low ceiling set by nomenklatura rules.”³⁶ Books were pulled from the shelves if their authors refused to declare the Soviet occupation legitimate. „Within a few years Czech society was intellectually and culturally decimated.”³⁷ To make conditions worse, the Czech lands stagnated economically during the state’s last twenty years, partially as a result of the transfer of funds to promote Slovak development.³⁸

Despite extensive harassment by the authorities and the constant threat of imprisonment, some Czech intellectuals, writers, and reformers resisted the regime. Pivotal in this resistance was Charter 77, which invoked the human rights agreements to which the Czechoslovak regime was a party, and enumerated both the rights to which citizens were entitled and the ways in which the regime had violated them. Charter 77 produced a significant dissident literature and drew critical international attention to human rights abuses in Czechoslovakia. Despite its best efforts, it never brought a substantial portion of the citizenry into its fold. It nevertheless stood as an important challenge to the regime’s legitimacy. Charter 77’s impact in Slovakia was, however, negligible. Of the original 239 signatories, only eight were Slovak. One reason for this was that the Czechs did not consult with Slovaks in Slovakia (some of the Slovak signatories lived in Prague) before issuing the Charter. In addition, Slovak authorities were especially vigilant about keeping the influence of Prague’s dissident community out of Slovakia, and this official interference led some Slovak intellectuals to refuse to meet with visiting Czechs.³⁹

While the enforced distance between Czechs and Slovaks could help explain the lack of strong Slovak support for the Czech-dominated Charter 77, it does not explain why there was no parallel Slovak dissident movement. In the late 1970s, 95 percent of government suppression of dissidents occurred in the Czech lands, and over half of the remaining 4 to 5 percent of anti-dissident action that took place in Slovakia was directed at only two dissidents. Over time, the proportion of anti-dissident action occurring in Slovakia rose slowly, but remained at fairly low levels. From 1981 to 1982, 9 percent of government repression was in Slovakia, and from 1984 to 1986, the figure climbed to 13 percent, still well below the statewide proportion of Slovaks to Czechs.⁴⁰ Overall, in Slovakia „there was no dissident movement, just a few dissidents.”⁴¹ Slovakia did develop a strong movement for religious rights, but this was kept separate from the political dissidence focusing on civil and political rights. Given the extremely low levels of dissident arrests and prosecution based on secular dissidence, it appears that „the ethnic Slovak at judicial risk for his nonreligious views” was „not conspicuously active in the body politic.”⁴²

Notably, the more massive and brutal purges left the Czech dissidents in a position where they had „almost nothing left to lose”.⁴³ By contrast, most Slovak intellectuals had „more to lose, and more to hope for”.⁴⁴ Indeed, a more positive view of the regime among many Slovaks appears to have been a factor preventing secular dissidence. As anonymous authors wrote in Listy, „because in 1968 the development of democratization, the stage and extent of democratic demands and efforts, were fundamentally lower in Slovakia than in the Czech lands, neither were the consequences of August 21 1968 as onerous and catastrophic in a political and moral sense”.⁴⁵ There was some satisfaction among Slovaks with the new federal structure. „Even in its arrested state the federation constitute[d] a significant moral and psychological victory for the Slovak nation.”⁴⁶ Slovak leaders had fought for federation for fifty years, and its achievement boosted national morale. Because of the sweeping purges of Czech cadres, „the possibilities for the Slovak intelligentsia to apply themselves in practice in the federal sphere were… greater and broader than would correspond to the normal realization of a federal arrangement.”⁴⁷ The Slovaks’ powerful position in the federal state helped to foster Slovak economic development in the 1970s, which brought important social change. Combined with the effects of economic modernization started in the 1950s, the continued industrialization led to rapidly increasing urbanization and the „gradual disappearance of traditional Slovak villages.”⁴⁸

While modernization produced socio-economic change, the new political structures reinforced the traditional political culture. As Kenneth Jowitt argues (looking at Romania), „[i]t is significant that the tendency to dichotomize elite and non-elite membership during the dictatorship of the proletariat has reinforced the political culture in which the elite sector was distinct in character and prerogative, not simply in role.”⁴⁹ In Slovakia, the development of power relations after federalization reinforced traditional distinctions between the elite and the broader population. As Miroslav Kusý argues, „just after its [federalization’s] inception there was an enormous growth in corruption, the arrogance of the powerful elite, embezzlement.”⁵⁰ This produced no concurrent rise in public dissatisfaction with the government in Slovakia. „This system of nepotism and corruption became the substitute for the clear system of relations which had once been typical in the just recently defunct rural community. In Slovakia, power continued to be something tangible and human rather than an impersonal institution: people now had an absolutely positive relationship with the various Party bosses, secretaries and chairmen, just like the relationship which had once existed between the peasants and the aristocrats in the old village.”⁵¹ To the extent that political-power relations conformed to traditional patterns of authority, the regime bolstered its legitimacy in Slovakia.

Kitschelt et al’s typology of communist regimes classifies the Czech Republic as bureaucratic-authoritarianism. Under such rule, „countries developed like pressure cookers with a muted and clandestine but potentially powerful opposition building up steam that could blow the lid off the communist regime whenever the party’s containment of opposition through repression showed signs of weakness.”⁵² Hostility to the regime is more widespread than a superficial survey suggests. Eyal finds that in the Czech Republic, not only were there more dissidents than in Slovakia,⁵³ the technocrats were alienated from the regime as well. These technocrats were not dissidents, but they were also neither co-opted, nor reform communists. They were demoted after 1968, and with careers stalled, found common interest in monetarist economics. Eyal describes them as being in internal exile, „[n]either rejecting power, nor contesting it, nor quite serving it… Internal exile meant a retreat into the private sphere, and rejection of ideological and political involvement”.₅₄

Slovakia, by contrast, is a combination of national-accommodative and patrimonial regimes. Societal compliance was pursued through cooptation into clientelist networks and other positions of influence rather than repression. As Eyal shows, this strategy was successful, with regard to Slovakia’s technocrats, nationalist intellectuals, and managers.⁵⁵ Each of these groups saw their relationship to the regime as supportive of national progress. The dominant orientation among technocrats was reform communism, with the central goals of more rational economic planning and authentic national autonomy. Slovakia’s nationalist intellectual elites were co-opted to develop and enhance Slovak national identity through historical interpretation. Finally, managers of state enterprises, enterprise lawyers, and deputy ministers were co-opted as well, as their jobs had loyalty to the regime as a prerequisite. None of these groups were internally exiled.

Overall, the final twenty years of the communist regime were less oppressive in the Slovak half of the federation. „In Slovakia everything functioned noticeably better than in the Czech Lands; there was less fear and less hate in Slovakia.”⁵⁶ The greater harmony between the regime and its Slovaks citizens was reflected in public opinion polls taken in the 1970s and 1980s, which „show that the population of Slovakia judged postwar economic and social developments much more favourably than the Czechs, and that until the end of 1989 the Slovaks were more optimistic about the future prospects of the country.”⁵⁷

The reason that the level of Slovak political dissidence was lower than in the Czech lands was not that the regime was more ruthless in repressing it. Rather, the levels of dissidence and repression were mutually reinforcing in each republic. This intertwining relationship between repression and dissidence appears to have been initiated by the regime leaders’ appraisal of their legitimacy in the citizens’ eyes after the invasion: where they expected hostility or challenge – in the Czech lands – there was more repression, and where they expected a higher level of acceptance – in Slovakia – there was less. This lesser repression in Slovakia, in turn, helped buttress the regime’s legitimacy, which was further strengthened by the realization of federalization, socio-economic development, and the consonance of patterns of authority with long-standing elements of Slovak political culture. Largely the reverse occurred in the Czech lands on all these counts. This is by no means to argue that the regime was highly legitimate in Slovakia; it is rather to establish that, in relative terms, during the last twenty years of the Communist state the regime was considered more legitimate in Slovakia than in the Czech lands.

This leads me back to Moran’s model, which presupposes a substantial number of people who „feel strongly about political issues”, who wish to voice these feelings, and who are either given or denied the options of emigration and political dissent. It assumes the existence of a pressure cooker-like situation, with voice and exit as „release valves.”⁵⁸ Did the difference in the relationship between regime and citizenry in the republics reflect the existence of one of these two release valves in Slovakia, but not the Czech lands? Neither emigration nor political dissent was an option offered by the regime. The fact that the „pressure” was lower in one republic indicates the need to look to other factors for its explanation. Higher legitimacy would help account for lower pressure, and vice versa. This is not to discount the usefulness of Moran’s theory for Czechoslovakia, as the Czech republic does seem to have been a real „pressure cooker.” The Slovak case suggests that this theory’s applicability may not be universal in the post-communist context.

The Post-Communist Period. How might the differences in the levels of the regime’s legitimacy in its two constituent republics affect the progress of transitional justice? Huntington’s explanation of the impediments to transitional justice provides a useful starting point for this question. These are the re-legitimization of the previous regime’s elites and the erosion of public interest in pursuing justice for them. While Huntington suggests that these developments are inevitable in a democratizing society, their extent and progress would be at least partially shaped by the levels of the previous regime’s legitimacy. The desire for justice will correspond to the sense of the injustice that it is addressing. The higher a society’s view of the previous regime’s legitimacy, the lower its motivation to pursue justice for its authorities and the higher the likelihood, in a democratic context, that it will allow elites associated with the former regime to return to the political stage. These elites would not tend to support transitional justice. The more quickly they regain power, the less likely a legal framework will be established to screen such elites out of the political sphere over time. Conversely, the lower the society’s view of the old regime’s legitimacy, the more likely it is to have an anti-communist counter-elite to offer an alternative to communist successor parties. In turn, these counter-elites would be more likely than the Communist successor elites to pursue decommunization.

Elite Re-legitimization. The Velvet Revolution produced a transfer of power from the Communist Party to two dissident-led umbrella parties: the Civic Forum (OF) in the Czech lands and the Public Against Violence (VPN) in Slovakia. Both won the 1990 elections. As Eyal points out, these parties reflected key differences between each republic’s post-invasion elites. In the Czech Republic, the OF elite was composed of dissidents and monetarist technocrats.⁵⁹ Although Slovakia’s VPN also included dissidents, it was largely made up of reform communist technocrats, nationalist intellectuals, and former managers. As time went on, the dissidents who had leant the OF and the VPN their legitimacy during the revolution began to lose support in both republics, and the balance of power shifted to other elites. On the Czech side, monetarist technocrat Václav Klaus emerged as the strongest leader and founded the center-right Civic Democratic Party (ODS). In Slovakia, Vladimír Mečiar, who had been purged after the Prague Spring but allowed to work as a lawyer, became the dominant personality in Slovak politics. Both Klaus and Mečiar were controversial figures, but for different reasons: while Klaus’s rigid espousal of free market economics and contentious political style made him unpopular, Mečiar was the subject of more serious allegations. As Slovak Interior Minister following the Velvet Revolution, Mečiar was seen with StB agents. After he became Slovak Premier in 1990, the press alleged both that he was using files to intimidate political rivals and that he had been a collaborator himself.

Mečiar was dismissed from the post of Prime Minister, and the Parliamentary Committee on Defense and Security investigated these allegations. The Committee’s report provided witness testimony that Mečiar had taken full advantage of his post as Interior Minister and presided over the disappearance of files he considered threatening. Included in the missing documents were pages of a registration book that „happened to contain the serial numbers of Mečiar himself and a number of former police operatives whom the internal affairs minister had elevated to important positions in his ministry.”⁶⁰ Despite the resulting omissions in the documentation, investigators found evidence that Mečiar had been an StB collaborator since 1976.⁶¹ Together, Mečiar and his staff had used the files to manipulate Slovak politics to their advantage. As Premier, Mečiar had unjustly promoted and demoted employees and forced the resignation of the new Interior Minister because he was dismissing former StB agents appointed by Mečiar. The Slovak media „remained fairly quiet” on the issue. Although the report was delivered shortly before the elections, Mečiar and his new Movement for a Democratic Slovakia (HZDS) – a party dominated by former managers and Communist party cadres – won the election.. He won another term in 1994, and though he was defeated in 1998, he remained one of the most popular (but also divisive) political personalities in Slovakia.

Mečiar’s win in 1992 occurred alongside a very strong victory in the Czech Republic for Klaus and the ODS, composed of monetarist technocrats and conservative intellectuals and in many ways the HDZS’s ideological opposite. The center-right continued to dominate Czech politics until the Klaus coalition’s dramatic collapse in 1997. Since then, power has been distributed more evenly between the center-right and the center-left, represented most prominently by the Social Democratic Party (ČSSD). While it counts many former communists in its ranks, the ČSSD is not a communist successor-party. As Carol Leff argues, „the Social Democrats are unique in the postcommunist political landscape. In almost every other postcommunist state, a strong ex-communist party has persisted or remained as the dominant force on the left.”⁶² The state does have a communist successor-party: the Communist Party (KSČM), which, tellingly, is the only party in Central Europe to continue to call itself „Communist.” It opposes democratic and market reforms and has continued to espouse hard-line communism, making it unwelcome in post-communist governments.

The Czech and Slovak electoral choices surveyed above reveal real differences between the two nations’ relationships to the parties with the closest ties to the previous regime. In the Czech Republic, the Communist Party continues to be ideologically rigid and anti-democratic and has relatively little appeal to the constituency it once claimed the exclusive right to represent. In Slovakia, the former communists have adapted themselves to the new political conditions. Mečiar’s substantial support base has not been concerned by his complicity with the StB and his abuse of the files. Several factors underlay the HZDS’s appeal, including its demands for national sovereignty and promises for a „third way” for the floundering Slovak economy. But it is significant that the voters were willing to overlook the fact that a party dominated by ex-communists had a leader with strong links to the previous regime’s dark side. This would suggest that already in 1992, Slovak priorities did not include the exclusion from political life of those tied to the StB or the former regime more broadly. The re-legitimization of former elites has clearly progressed more rapidly and extensively in Slovakia than in the Czech Republic – an outcome consistent with Kitschelt’s expectations for the two regime types.

The makeup of the new political elites has had important implications for lustration in each republic. The Czech monetarists were strongly in favor of lustration: „[t]he idea of lustration expressed what the dissidents had in common with the monetarists, even if they differed on questions of method and authority – the rejection and condemnation of the past.”⁶³ Among these elites, communism was seen as utterly bankrupt, and reform communists as no different from communists „without adjectives.”⁶⁴ By contrast, in Slovakia, the communist past, and the post-federalization reform communist project of authentic national autonomy and rational planning, was not looked on as something to be „erased or purified; on the contrary, its remembrance was part of the work of imagining the nation.”⁶⁵ Slovak elites saw their current project as having continuity with the best elements of reform communism. Thus, „[l]ustration was the direct symbolic antithesis of the ideological package of the left in Slovakia, and threatened it with symbolic annihilation.”⁶⁶ After the polarizing 1992 elections, when the Czech right and Slovak left met in their final showdown, the HZDS placed the „nonnegotiable” demand that the lustration law be revoked at the center of its strategy of „brinksmanship.” The Czechs were unwilling to engage in serious negotiations over the Slovak roster of demands, and the agreement to split the state came not long thereafter. Moreover, the Slovak elite configuration continued to have implications for transitional justice in Slovakia after the „Velvet Divorce”: according to both Langoš and Čarnogurský, a crucial reason why Slovakia did not pursue lustration and took so long to open the secret police files to the public was the electoral strength of the HZDS and the SDL’, the majority of whose members were opposed to both.

Thus, the orientation of the new elites in both federal republics/countries was a critical factor shaping approaches to transitional justice. This supports both Welsh’s emphasis on the importance of the electoral success of post-communist parties and Williams et al’s stress on the relative strength of former opposition forces. The continuities in the elites’ views of communism from the communist to post-communist periods indicates that the lustration debates and struggles should not be considered as primarily the „politics of the present”, but rather as a policy issue whose development depends on a number of factors – some of which are to be found in the past.

Conclusion

The Czech and Slovak cases provide evidence that their approaches to transitional justice have not been solely determined by transition type, broad complicity, or level of exit and voice. Transition type and repression are relevant, but the Slovak case limits their applicability in the post-communist context, prompting a closer examination of certain assumptions underlying each theory: for Moran, that a „pressure cooker” environment existed in all communist countries, and for Huntington, (1) that the balance of power between regime and opposition during the discrete period of the revolution plays a critical role in the outcome of the „torturer problem” and (2) the blanket proposition that justice must be swift because re-legitimization of the previous regime’s elites is inevitable. Communist Slovakia shows that lower levels of pressure may exist even without the existence of the release valves that Moran envisions, and that higher regime legitimacy may be at play. Post-communist Slovakia shows that even if a regime is weak at the time of the revolution, its officials may be resilient enough to re-legitimize themselves quickly. The fact that this happened in Slovakia but not in the Czech lands indicates that something other than transition type is shaping the progress and extent of elite re-legitimization.

The snapshot of the former regime’s strength taken at the time of the revolution may not therefore be predictive of the new regime’s stance on transitional justice, particularly in a federation where the former regime may have had stronger legitimacy in one republic than in another. Huntington’s description of the process as „reestablishing” legitimacy presupposes previous legitimacy. While this is not the only factor in the electoral success or failure of communist successor-parties or other parties dominated by the former elite, the progress of such „reestablishment” will be smoother the stronger its previous foundation, at least in formerly national-accommodative and bureaucratic-authoritarian states. Elite re-legitimization should not simply be viewed as the result of the inevitable onset, after a time, of a broad sense that the regime’s injustices are „water under the bridge”, but as a reflection of the crucial role that previous legitimacy plays in shaping the outcome of the „torturer problem.” This is not to downplay the politics of the present; the competition between ex-communists and ex-opposition (including here former internal exiles), and the balance of power between them, are critically important to transitional justice. Nor is it to deny that such issues may be used strategically. Rather, I wish to highlight that the orientations of societal groups toward the preceding regime have roots in their experience of that regime, were shaped by the nature of that regime, and thereby set the context for responses to that regime. The politics of the past and the politics of the present are linked. All other factors aside, the previous regime’s legitimacy is directly relevant to societal support for transitional justice because it addresses a central question: did the people find it unjust?

NADYA NEDELSKY - International Studies Department, Macalester College, USA.

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