How the Czech Judiciary is Grappling with the Communist Past: Facing the Moral Consequences of “Doing One’s Job”

11. 12. 2023 / Muriel Blaive

 

I will especially concentrate here on one case that recently made the headlines in Czechia, that of Judge Robert Fremr, who was successfully vetted, then elected by the Senate of the Czech Republic, and was about to be appointed as justice to the Constitutional Court (Ústavní soud) by President Pavel. However, before his nomination new information about his work as a judge since 1982 surfaced and created a scandal. This case is high profile because Judge Fremr was previously deputy chair of the Supreme Court in Prague and a criminal judge of international renown, formerly deputy chair of the International Criminal Court in the Hague.

The “scandal” in question is that he had sentenced three young men, out of whom one named Alexander Eret to a 6,5 year-sentence in 1988 for vandalism and other crimes, even though the case had been set up by the secret police (StB) in a way that evidently infringed on human rights. Judge Fremr first denied, then eventually recognized this, apologized and professed self-criticism. It also came to the fore that he had sentenced 172 people in absentia between 1983 and 1985 to jail sentences for the “crime” of leaving the republic. Judge Fremr was incidentally the last judge to sentence a convict to the death penalty in communist Czechoslovakia, before becoming publicly opposed to the death penalty after 1989. He was also a communist party member. In fact, he became a member at the very inauspicious time of October 1989 and he resigned from the party only a few weeks later, in the wake of 17 November 1989 events.

The communist membership of judges

As ceskajustice.cz explains, “Former membership in the communist party was no obstacle to serving as a judge after 1989. Most judges indeed kept their position in the new regime. They only underwent what is known as renomination and are now appointed for life by the president.” Senator Kordová Marvanová told that the courts and the Ministry of Justice prepared these renominations after 1989 and submitted them to Parliament for approval, but provided only few details so that “there no wild firing, but a smooth transition of most judges who wanted to stay in the judiciary.” In 1989, roughly half of the judges were in the communist party, and in 2005 still a quarter were former members.

In December 2018, the president of the Judges' Union, Daniela Zemanová, said that the fact that a large number of judges had continued to serve in the judiciary after 1989 did not help the country to come to terms with the past. Activist Neela Winkelmannová of the Platform of European Memory and Conscience also professed little understanding: she said, not without reason, that joining the communist party had been a voluntary decision by those who wanted to make a career. “51% of judges were party members, 49% were not. So, it was possible to be a judge and not be a communist.” Only in 2011 was the list of judges who had been members of the communist party made public, which was certainly better than never, but was still a full 22 years after the fall of the regime. But the question is of course typical of all transitional regimes: what other solution was available to the post-1989 leaders? How can a new regime keep a functioning justice system, if only to be in the position to judge past crimes, without judges, or with only 49% of its judges?

Was the action of communist judges legal?

Another issue concerns the international treaties on human rights signed by Czechoslovakia. The critical expertise put together by the Institute for the Study of Totalitarian Regimes at the behest of President Pavel argues that Judge Fremr's defense, based on the fact that he acted within the framework of the laws in force at the time and could not have done otherwise as a judge, effectively mocks the international human rights covenant signed by Czechoslovakia that came into force in 1976.

But Judge Fremr is of course not alone in this. Josef Baxa, the current President of the Constitutional Court, served as judge in the Plzeň District Court before 1989. He underlined in the frame of the Fremr controversy that a public debate about the functioning of pre-November justice was valuable, but it came too late. In the 1990s, the judiciary itself should have dealt with its own past more consistently, he said. Judge Baxa now warned against a black and white vision of the past that he considered unfair. He couldn’t recall having sentenced emigrants himself, but he couldn’t rule out that he did either, and such a case could then resurface any day. So also he was in a situation comparable to that of Judge Fremr’s, he said.

Former European Court of Human Rights judge Aleš Pejchal also offered an interesting reflection on the past. Out of the blue, he said, we now have an all-out “discussion” about who does and does not have the moral right to be a constitutional justice. But before 1989, there also was murder, robbery, sexual abuse, rape, theft, and fraud in Czechoslovakia. He, as a defense lawyer at the time, defended several murderers, countless thieves, and even a few sexual abusers. If every lawyer before 1989 had wanted to be a decent person, as it is framed today within this “discussion” on constitutional law, and had refused to act as criminal judge, prosecutor or as investigator of the SNB (National Security Service), then who would have protected society, he asks – not without merit.

Judge Pejchal also defended as a lawyer those who left the country, the so-called emigrants, according to Section 109 of the Criminal Code. This was “not easy, let alone pleasant”, since he could not even communicate with his “clients”, who were now abroad. He could only read the file prepared by the StB under their supervision in their office. But like any criminal judge, prosecutor, or lawyer, he could hardly refuse to participate in such a criminal trial, he claims now: in consequence, “Should all of us attorneys have declared ourselves decent people and stopped practicing the law then? Would today's ‘human rights activists’ have applauded us, and would we now be considered moral victors?”

Judge Pejchal gave several interesting examples which are difficult to assess morally speaking if we are to consider the responsibility of the judge as seen from today’s point of view. Here is one instance:

Before 1989, criminal law distinguished between the crime of theft and the crime of theft of socialist property. The distinction was simple: the facts were the same, but the penalty for theft of socialist property was much more severe. Model example: two perpetrators simultaneously steal two bicycles standing next to one another. They are caught and brought to trial. One of them is “lucky” to have stolen a bicycle belonging to Franta, the other is “unlucky” because the bicycle belonged to the post-office and was ridden by the local postman. The second one gets a heavier sentence. Dear participants in today’s debate on morals, it is quite rare to find a criminal judge working before 1989 who never tried cases under Section 109 of the Criminal Code, and even more rare to find someone who did not have “thefts” from socialist property on his desk every day and who did not give harsher sentences than for ordinary theft. Did he violate Article 7 of the UN Universal Declaration of Human Rights according to which everybody is entitled to a fair trial or not? Were these almost daily trials political or not?

The President of the Supreme Court (Nejvyšší soud), Petr Angyalossy, also argued that pre-November judgments for “leaving the republic” cannot be considered a personal or professional failure of the judges. According to him, acquitting the emigrants was practically impossible, even with reference to the International Covenant on Civil and Political Rights that came into force in 1976, because the judges were not in a legal position to take it into account. To claim that they were is only the projection of post-November principles onto pre-November conditions. Indeed, he says, the current constitution states that international treaties form part of the legal order, and they bind the judges. But it was not so before November. At the time, judges were bound only by the legal system of the socialist state when performing their duties. “The content of an international treaty became part of the legal system only on the condition that it was adopted into internal legislation,” explained Judge Angyalossy. So even if the socialist provisions contradicted the international covenant, the judge ruling before November 1989 had no way to circumvent their application.

Former President of the Supreme Court Iva Brožová also argued that it is impossible to judge judges involved in pre-1989 cases from today’s standpoint. “It only testifies to the fact that people don’t understand how the law worked after 1989”, she said. Eliška Wagnerová, former  President of the Supreme Court, underlined that judges had the duty to sentence such cases. She thought the Fremr case to be a “bit of a storm in a teacup” and that this type of reproach should have been made in the 1990s, not now. “The law was wrong, but the people who had moral objections did not usually become criminal judges.” Judge Fremr had not hidden anything, she said, this was known, it “belonged to the times.”

Or course none of these judges seriously questioned, beyond the legality of judges’ actions before 1989, the legitimacy or moral aspect of these actions, even if they belonged to the times.

The Alexander Eret case

So what happened in the Eret case? In 1988, Judge Fremr sent young Eret to prison for 6.5 years for vandalism. Eret had two “accomplices”, who were also sentenced. The vandalism consisted in damaging a few graves of fallen Soviet soldiers in the Olšany cemetery, although Eret claims he was not there in this case. It was also reproached to the boys to have taken pictures of Soviet soldiers, and laid stones on railroad tracks in the hope of derailing trains, although Eret claims it was only gravel and he only watched his friends do it while sitting in the grass. What is more important is that the StB (secret police) took over the investigation from the hands of the VB (ordinary police), and decided to “take proactive and prophylactic measures on the theme of protecting the youth”, i.e. to turn ordinary “vandalism”, considered so from the warped point of view of the communist regime, into an even more politicized crime of sabotage and political intent. It thus inflicted exemplary punishment to otherwise rather harmless teenagers, a practice common also in East Germany, as Thomas Lindenberger has shown.

According to Eret, the reason why the StB specifically singled him out is because, unlike his friends, he had a father and grandmother of German origin and held German nationality within Czechoslovakia, hence the accusation of being a fascist, which he refutes. His father had emigrated to Austria in 1979 and he had visited him there often, bringing home West German military artefacts that were used as “proof” of his support for Nazism.

Everyday life repression in prison

Most of Eret’s interrogations took place without a lawyer, including his “confession”, in which he claimed among other things to be “pleased that his lawyer was not present” and “grateful to his interrogators”, which certainly is a statement suspicious enough to document that the charges were largely fabricated. Eret recently explained in an interview with Respekt that “The pressure on my confession was complex, some of my fellow prisoners were part of it, I am convinced that they collaborated with the StB. … They terrorized me psychologically, saying that if I didn't cooperate with the StB, I would end up in a camp where I would be murdered. And they also beat me, slapped me, I had to sit under ice water, they stepped on me, burned my arms with cigarettes, and raped me with a toothbrush. It was awful. My most active fellow inmates also threatened to kill me if I didn't confess to the StB.”

Eret then further describes: “In order to get out of detention and be sent to the asylum, I said, according to the instructions of my fellow prisoners, that I had raped my younger sister. It was a terrible pressure. My fellow prisoners explained to me that if I told the StB about the alleged sex crimes, I would have a chance to get out of prison and into the asylum, that everything is better there. I perceived it as liberation.”

Alexander Eret went even further and retrospectively analyzed himself the everyday repression he was submitted to in prison, a pressure which was comparable in many ways to those of the victims of Stalinist show trials such as Artur London, Eugen Löbl, Alexander Weissberg, or George Hodos, which proves that the StB kept in store its baleful know how acquired under Stalinism all the way until 1989. Eret is exceptionally articulate, which renders his testimony very valuable both from a human and historical point of view. When Monika Le Fay asked him if he could describe the process by which he confessed to things he had not done, he answered:

It is hard to understand for someone who hasn't experienced it first-hand. The despair, the hopelessness, the isolation from the rest of the world, the everyday pressure from all sides, both mentally and physically, the desire to “somehow” get out of it at any cost. Simultaneously, seemingly tempting offers of transfer from detention to psychiatric treatment, the vision of liberation, then again pressure and torture, 24 hours a day in the same holding cell with convicts as interrogators. When this goes on for a few months, a person who is not tough enough loses the strength to fight back, goes crazy, and is suddenly willing to trust anyone with anything. He becomes a puppet who is manipulated and no longer has a will of their own. Your whole life is reduced to one cell and a few convicts, the world outside no longer exists. Then the madness sets in, you just want to fall asleep and never wake up. You try to commit suicide because you are at your lowest point, and you can't find any other escape. Then the promises again, the vision of rescue, then the threats that if you don't sign, rescue will never come. You end up like a piece of meat with no willpower, ready to sign anything that promises you some form of deliverance, or at least temporary relief. And when that is not enough and they want more, you start making up whatever they want to hear, whatever they crave, to create exactly the monster they need.

Eret mentioned that at the trial he repeatedly told Judge Fremr that the statements about laying gravel on the tracks, fascism, and rape were not true and that they had been coerced out of him and fabricated but Judge Fremr endorsed the StB narrative and neutralized when appropriate his recanting statements. Eret’s mother was also sentenced to 1,5 years with parole since Eret “confessed” about raping his own sister.

Post-communist Czechoslovakia endorses communist repression

This Eret case is all the more interesting that Judge Fremr’s verdict in the Eret trial was confirmed by post-communist, now democratic, Czechoslovakia. In the name of the Defense Committee of the Unjustly Persecuted (VONS), Petr Uhl asked President Havel in 1990 to grant amnesty to Alexander Eret, which Havel refused to do. In the same year, Eret was transferred from prison to the sexology department in the Bohnice hospital, whence he escaped to Austria (where Czechoslovak authorities left him alone.) 

In 1992, Eret's case was dealt with by a rehabilitation court. The judgement was confirmed with one adjustment: the accusation of “sabotage” was changed to “putting the public in danger”, so his sentence was reduced. “The court relied on the police protocols, took them as evidence, dealt with the case only formally and dismissed it,” Eret said. And here he makes a very interesting point: “The justice system was simply not interested in the 1990s in revising the decision of a judge who was already appointed to the Supreme Court, and in somehow discrediting him. I mainly see a lack of interest of the Czech judiciary and solidarity with one of its members, which was unfortunately typical of that time.” Eret tried to draw the media's attention to his case after the Velvet Revolution, but was mostly met with disinterest.

As this case demonstrates, since today’s Czechia is the successor state of communist Czechoslovakia, it is quite contradictory to see it simultaneously claim to be breaking with the communist past while keeping in its formerly communist judges and confirming their judgements.

What is ethical behavior?

Can a brilliant career after 1989 excuse a debatable behavior before 1989? Activist server Hlídací pes sets the terms of this moral issue rather bluntly: “The cancer-like reluctance of the representatives of the Czech judiciary to admit their immoral participation in the enforcement of the communist regime's tyranny hurts all the more that many of them have deservedly earned respect in later life.” Judge Fremr believes that his moral integrity was indeed rebuilt after 1989. He claimed: “My decision-making at all levels of our judicial system over the subsequent 34 years and my action as representative of our country in international tribunals have clearly tipped the scales not only in assessing my professionalism but also in assessing my moral integrity.”

Here the question of chance is paramount, and I would like to remind also the case of policeman Vladimír Dzuro, who has also held a prestigious post in international organizations. Dzuro was a young SNB member since 1983, a policeman (murder investigator) under communism, before being hired by Interpol after 1989 and becoming an investigator at the International Criminal Tribunal for the Crimes Committed in Former Yugoslavia. After that he pursued his career at the UN.

I had the privilege to interview him in May 2023, and he told me himself how lucky he was that on 17 November 1989, he was on standby but was not called for duty to suppress the demonstration on Národní třída – or worse: what if the regime had decided to pursue the repressive course? What would he have done had he been given this type of orders? He says he himself doesn’t know. It is sheer coincidence that he wasn’t, and he was free to pursue a blameless career after 1989, becoming one of the most prestigious Czech international civil servants. And as far as I can tell, he is a nice person. But just like the other judges who testified in defense of Judge Fremr, he could have found himself in Fremr’s position, one in which he would have had to “do his duty.” And we know how difficult it is to disobey orders or to question authority under a dictatorship.

Conclusion: passing judgement is difficult, expressing empathy is not

In view of this context, it is difficult to pass any judgement on anyone. Former ombudswoman Anna Šabatová was a member of the panel that vetted Fremr’s candidacy and recommended it to President Pavel in summer 2023, at a time when these elements about his past were not yet known. She publicly thanked Judge Fremr for resigning from his candidacy when the scandal developed, thus saving the President from an embarrassing choice – all the more so that this is a President who himself has a “communist past” and also was a loyal civil servant of the Czechoslovak communist state.

Indeed, personal responsibility is the only ethical choice that can be applied today. Judge Fremr stepped up his game by recognizing that “the distrust of part of society towards him threatened the credibility of the Constitutional Court.” Responsible behavior is certainly one that has been in demand since 1989, almost as much as before 1989, regardless of the legality of all actions – or as Hlídací pes, again, put it in undiplomatic but evocative terms, the Fremr case has brought to the fore the “bad conscience, moral inconsistency and hypocrisy of the post-November politics and of the vast majority of the Czech society.”

Perhaps the Fremr case will have served to open a new chapter in the Czech policy of dealing with the past. If it is difficult, nigh impossible, to determine the actual level of guilt of the “perpetrators”, nothing should stop the Czech state and society from expressing empathy and granting reparations to the victims. Hlídací pes demanded what few if any other Czech media have: “In the Olšany cemetary case, the state committed a crime against Alexander Eret and his mother. Both are still alive. The Czech state must therefore not only ascertain the facts as quickly as possible and, at least symbolically, restore justice today, but it must express an official apology and offer reparations. Once the investigation by the Institute for the Study of Totalitarian Regimes has been completed, President Petr Pavel should undertake this on behalf of the Czech Republic. Nothing less will do.”