by Raluca Grosescu and Agata Fijalkowski
Chapter in Lavinia Stan, Lucian Turcescu (eds.), Justice, Memory and Redress: New Insights from Romania (Cambridge: Cambridge Scholars, 2017), pp. 100-123.
This chapter explores the relationship between legal culture and retrospective justice in transition, in post-1989 Bulgaria, Germany and Romania. It analyses the different legal narratives that framed trials regarding state crimes committed under communist rule. It specifically focuses on those cases where the application of retroactive law was necessary in order to prosecute, namely: the Bulgarian Lovech camp trial; the German Border Guards’ trials; and the Romanian cases concerning political crimes committed in the 1950s. Most of the scholarship on post-communist transitional justice has emphasised the nature of the communist regime, the exit from dictatorship, or the party struggle for political power during transition as the main determinants that influenced judicial accountability after 1989. We argue that the legal culture, in particular, the judiciary’s understanding of legal formalism and international human rights law, is another important determinant, generally overlooked by the literature. The chapter first considers the evolution of legal ideology since World War II in Romania, Bulgaria, and Germany. It then analyses the legal debates on the application of retrospective accountability after 1989. It concludes that the different approaches to retrospective justice were strongly influenced by the dominant culture of legal experts.