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Facing the Shadows of the Past during Transitions

Kriszta Kovács – 2023

During a transition from an authoritarian or totalitarian regime to a democratic system, a political community has to reinvent itself in ways that will allow it to live with its own past. In this process, the community faces difficult choices. Some of the hardest questions to answer are the following: How to identify the perpetrators, facilitators, beneficiaries, and victims of the past regime? How to convict those who collaborated with the previous nondemocratic regime with-out appropriating its nondemocratic methods? How to compensate those who were the victims of human rights violations in the past regime? How to pro-vide victims with property restitution or compensation in the face of substantial obstacles?The law has a limited capacity to cope with the complex issues surrounding a nondemocratic regime’s legacy, but in this chapter, I focus only on the legal – and, more specifically, on the constitutional – aspects of this matter. The current chap-ter does not deal with issues of apology, forgiveness, or reconciliation, although they are part of the transitional-justice vocabulary (Kritz 1995). Nor does the chapter focus on the strategies developed by the successor state’s political elites (Huyse 1995). Here, the focus is on legal solutions to a previous regime’s mass violation of human rights. Rather than approach these solutions as they concern the treatment and compensation of victims, the chapter discusses state-sponsored crimes in terms of the accountability of the perpetrators: retroactive justice as a response to the security measures of a past authoritarian state. The emphasis is on the roles that constitutions and constitutional courts play in the process of transitional justice. There is a popular argument that a constitution is just a piece of paper. A constitution is one thing; reality is another. In what follows, I will give examples of how constitutional texts and their judicial interpretations have consequences in the transitional-justice process, and the target of this inquiry will be Hungary.

Title
Facing the Shadows of the Past during Transitions
Publisher
Hart Publishing
Keywords
Book Chapter
Date
2023
Identifier
DOI: 10.5040/9781509960156.ch-008
Citation
Kovács, K, 2023, ‘Facing the Shadows of the Past during Transitions’, in: Cheng-Yi Huang (ed), Constitutionalising Transitional Justice: How Constitutions and Constitutional Courts Deal with Past Atrocity, London: Routledge.
Type
Text