Dr Agata Fijalkowski

Our paper argues that a move away from the linear approach adopted in transitional justice scholarship is required to the question of ‘moving on’, understood as the way in which a post-dictatorial or a post-conflict regime addresses the past injustices of the predecessor regime. We consider this question in relation to two case studies: post-dictatorial Albania and post-conflict Sierra Leone. Both examples point to important factors that underpin the meanings of ‘moving on’ and of justice, when analysed through a law and aesthetics lens. It has long been established that legal scholarship that makes use of works of art aids and clarifies the points that it wants to make. We examine the power of certain art forms, namely the way in which space ‘speaks’ and the narratives found in an image in the Albanian context, and the use of film to provide a deeper appreciation of the conflict in the Sierra Leonean context. Different aesthetic practices have been used as a way to respond to historical injustice and mass atrocity, also when partial justice (through the law) has been achieved. Our article argues that law’s limitations can be understood through the process of unravelling the pieces of the puzzle that make up affective justice. Artistic representation allows for a more complex narration than law’s linear demands.

The topic of amnesty is a vital one in transitional justice scholarship. As a political tool it has historically provided the state the means to suppress dissent, compromise with its enemies, as well as to protect its own state agents implicated in crimes. Amnesty originates from the Greek word amnestia, which means ‘forgetfulness’ or ‘oblivion’. The end of World War II and the Nuremberg and Tokyo trials mark the alteration in state practice as concerns holding individuals accountable for war crimes and crimes against humanity. Many countries have passed amnesty laws, referring to specific events in the country’s history, for war crimes or crimes against humanity, or for wider categories of crimes that include these two crimes. Afghanistan has a history of amnesties beginning in 1979 with the amnesty issued by the Soviet-backed revolutionary forces, which asserted that the amnesty was a ‘humanitarian act’.

Tarot cards are one means to unlocking an image. In this article, the image is that of the Albanian writer and political dissident Musine Kokalari at her 1946 trial. Her photograph features in Albanian discourses about its communist past. I argue that the image provides clues as to the manner in which the country has faced up to its own history. For what is certain is that the Albanian account of the Enver Hoxha dictatorship (1944–1991) remains incomplete. Drawing on Walter Benjamin’s notion of ‘here-and-now in a flash’, and Roland Barthes’ and Italo Calvino’s reflections on photography and the power of the visual, we can identify at least two distinct memory regimes in the relevant historical, legal and political narratives.

An analysis of the life account of the Polish defence lawyer Stanisław Hejmowski (1900-1969), who made a mark in the first national war crimes trial in 1946 and later in the Poznań June trials of 1956, reminds us of how defence lawyering strategies in high profile cases are born. This paper's findings draw on his recently discovered private personal archive and case notes, which have hitherto not been in the public domain. The investigation will show that Hejmowski’s line of action exemplifies a strategy through which a civil lawyer may approach large-scale atrocities and crimes – but as a criminal defence lawyer. Through this analysis and a consideration of an unconventional figure we may hope to appreciate what legal reasoning signifies in authoritarian states.

This paper considers the French filmmaker Justine Triet’s 2023 award-winning film, Anatomy of a Fall, through a screenwriter’s lens. It challenges the assertion that the film is a courtroom drama. Using the work of one of the key thinkers in the field of film studies, Phil Parker, this paper will demonstrate how and why Anatomy of a Fall is in essence an interpersonal drama. It will provide an overview of courtroom dramas before discussing the most popular template used in genre, the one based on the hero’s journey. It will then set out the seven components of an interpersonal drama, as described in Parker’s account, applying each in turn to Triet’s film. This paper will evaluate how law is itself a protagonist in interpersonal drama. Although this film is not a legal movie, it is nonetheless an excellent comment about the law, because all social relations can be seen as legal relations and legal subjectivity.

Albanian writer and dissident Musine Kokalari stood trial before the military court in 1946, for supporting multi-party elections. The trial was transmitted live via loud speakers to the crowds outside. Her stoic stance is her legacy.

From the 1940s, communist Albania was shut off from the outside world. During this time, Albanian writer Musine Kokalari was a powerful dissident voice, risking her freedom to oppose an oppressive dictatorship. This display included material from our Daily Herald Archive, along with images collected by Dr Agata Fijalkowski during research trips to Albania. Agata came across the trial transcript of this remarkable individual and felt compelled to find out more about her.

This author first met Adam Podgórecki in the mid-1990s at the International Institute for the Sociology of Law (IISL) in Oñati, Spain. Over a lunch organised by the IISL and at a cooking school in the local area, Prof. Podgórecki talked about the role these sorts of cooking schools had played under General Francisco Franco’s authoritarian rule. He referred to these schools as “pockets of democracy” because of the cherished space they provided for people to live in a polity, albeit in a suspended state. The cooking schools were a safe space for people to speak freely. This author is reminded here of the case of Albania. It is in this spirit that I talk about the “pockets of democracy” that existed in Albania, through the experience of one remarkable individual, about whom I have been writing for some time now, the writer and political dissident, Musine Kokalari (1917–1983). Her own account of her 1946 trial and her ruminations on the nature of historical memory recall Podgórecki’s work on totalitarian and non-totalitarian law. It is in this frame therefore that I will set out the discussion, elucidating the main points underpinning his pioneering work. Abstrakt Autorka artykułu po raz pierwszy spotkała Adama Podgóreckiego w połowie lat 90. XX wieku w Międzynarodowym Instytucie Socjologii Prawa (IISL) w Oñati w Hiszpanii. Podczas lunchu zorganizowanego przez IISL oraz w pobliskiej szkole gotowania prof. Podgórecki opowiadał o roli, jaką tego rodzaju szkoły gotowania odegrały pod autorytarnymi rządami generała Francisco Franco. Nazwał te szkoły „przestrzeniami demokracji” ze względu na cenną przestrzeń, jaką zapewniały ludziom do życia w państwie, choć w państwie zawieszonym. Szkoły gotowania były bezpiecznym miejscem, w którym ludzie mogli swobodnie rozmawiać. Autorce przypomina się tutaj przypadek Albanii. W tym duchu pisze więc o „przestrzeniach demokracji”, które istniały w Albanii, poprzez doświadczenie jednej, niezwykłej osoby – pisarza i dysydenta politycznego Musine Kokalari (1917–1983) – o którym autorka pisze od jakiegoś czasu. Jej własna relacja z procesu z 1946 roku i rozmyślania nad naturą pamięci historycznej przywodzą na myśl prace Podgóreckiego nad prawem totalitarnym i nietotalitarnym. Dlatego też w tym kontekście rozpoczęto dyskusję, wyjaśniając główne punkty leżące u podstaw jego pionierskiej pracy.

The death penalty was abolished in Poland and its Central and Eastern European counterparts as a consequence of European Union (EU) membership. With the ascent to power of populist political parties in the region, the death penalty continues to be a live topic. Calls for its reinstatement occur during times of domestic political crisis and as a stance against the EU. Historically, in Poland, lawyers and criminologists have opposed the death penalty, and the Catholic Church, which is hugely influential, is also now opposed to the death penalty. The chapter will approach the history and status of the death penalty from an interdisciplinary perspective that will focus on Poland, Hungary, and other states in the region, such as Belarus, where the death penalty is now imposed. It will identify the factors that underpin the drive for its reinstatement and explore the broader implications for public trust and the rule of law.

Encyclopaedia entry.

Encyclopaedia entry

Addressing the relationship between law and the visual, this book examines the importance of photography in Central, East, and Southeast European show trials.

This is a book review of Les Moran, Law, Judges and Visual Culture (Routledge 2021)

This article centres on an unconventional figure. Tadeusz Cyprian (1898–1979) was not only an outstanding lawyer but also a talented photographer. He contributed to the documentation of nazi crimes during WW2. Cyprian was a prosecutor before the Supreme National Tribunal (Najwyższy Trybunał Narodowy), and one of the four Polish delegates at the Nuremberg Trials. My investigation concerns the issue of responsibility for crimes committed by the Germans during WW2 from the perspective of Cyprian as prosecutor and as photographer. Illustrations loom large in the article, and still more so in the whole study, given the aims of the research. The research method that is presented here is not often used by lawyers for methodological reasons. Yet law is not a system detached from external reality. Legal research and the interpretation of the law should be conducted in an interdisciplinary way. My article is divided into four parts: (1) the theoretical and contextual framework; (2) key episodes in Cyprian’s biography; (3) the dispensing of justice in Poland; and (4) the individual behind the legal principle of the punishment and prevention of genocide. The value of the first part consists, inter alia, in its highlighting of the importance of interdisciplinary research. This is especially relevant for legal biographical studies, for examining the functioning of a specific court, for its judges and for the specific category of trials.

This is a book review of Fran Hirsch’s Soviet Judgment at Nuremberg: A New History of the International Military Tribunal after World War II (Oxford University Press 2020).

This article analyses the Dutch legal response to Poland’s 1950 extradition request of Pieter Menten and the questions underpinning the reasoning of the authorities and courts, along with other less visible issues then in play. The article begins with an overview of Menten’s activities in pre- and WW2 Poland, which include his involvement in massacres in 1941, as well as the looting of art. The Dutch court’s position on the matter reveals larger questions about the Dutch approach towards accountability for war crimes in the immediate post-WW2 period. The article adopts an international historical methodology in its analysis to demonstrate how concepts of extradition and war crimes were underdeveloped in the post-WW2 period. In this case, the intertwining of constitutional, criminal, and international laws provided a way for the political decision to prevail. Extradition, because it is an interplay between law and politics, was at odds with international criminal justice discourse during this period.

How can we define a truth and reconciliation commission? The three main elements of truth, reconciliation, and commission carry broad responsibilities and expectations. In her study on truth commissions, It is vital not to define truth and reconciliations commissions too narrowly. It is also immediately apparent that a commission is distinct from a governmental human rights body or from a judicial commission of inquiry. In fact, truth commissions have been created under many names. A brief historical overview is needed before going on to the purpose of these bodies. A better understanding of the key components will arise when a closer look is taken at the criteria needed for a commission’s actual operation. This

INTRODUCTION As Europe moves in the direction of absolute abolitionism, it is easy to miss the fact that these developments are fraught with tensions. The European policy on the abolition of the death penalty has come to be presented, above all, as a human rights issue. The drafting of the European Convention on Human Rights, key judgments of the European Court of Human Rights, and initiatives of the Council of Europe contribute to this policy. In 1989, this European policy was reinvigorated with the prospect of European enlargement and new members to the Council of Europe. Comprising key mechanisms to facilitate implementation, the policy reflects a uniform approach to the death penalty, one that is particularly European. ‘New’ European states, although pleased to be back in the fold of Europe, have expressed problems with this policy, and some proactively support a pro-death penalty stance that is largely ignored by the Council of Europe and European Union (EU) member states. This chapter critically examines these European transformations. It is organized in the following way. The chapter first sets out European policy on the abolition of the death penalty, providing a general survey of its mechanisms and procedures. Western European states have traditionally been afforded a margin of appreciation on certain human rights issues. This also applied to the imposition of the capital sentence. The position on the death penalty has reflected a certain unity on the matter.

This article examines the case against the Polish resistance fighter August Emil Fieldorf and his subsequent trial. Judicial officials within, or working intimately with, the Soviet secret police made decisions affecting many lives in Poland in 1944-1956. A consideration of the trial proceedings and the backgrounds of selected judicial officials provide a better understanding of the nature of Stalinist justice. Key issues underpinning the trial, related to political contexts, legal maneuverings, and broader considerations surrounding the defendant through the eyes of his persecutors, shed light on the hidden mechanism of Stalinist justice in operation and what constitutes a judicial crime. While its focus is Fieldorf, this article argues that the Polish case study can be instructive in analyzing the ways in which the law was used as a political weapon in other states and regions with similar experiences of totalitarian rule.

From Old Times to New Europe considers the post-totalitarian legal framework in today's Europe, arguing that the study of totalitarianism and post-totalitarianism continues to be significant as ever. Drawing mainly on the Polish experience, this analysis focuses on the significant part played by history in the development of the region's identity and preferences concerning the role of the state in public and private life. It examines the political, socio-economic and legal aspects of key events and draws comparisons with other CEE states, whilst implementing key socio-legal theories to explain trends and strains in this post-Communist and post-totalitarian period. With the benefit of access to archival sources in Poland and Russia, this book will be of interest to students and researchers of European law, law and society and international criminal justice. © Agata Fijalkowski 2010. All rights reserved.

Abstract

This paper examines the criminalisation of symbols of the past. It considers the 2011 judgment of the Polish Constitutional Tribunal. In this compact and well-ordered decision, the Tribunal, with reference to key European examples, assessed critically the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past pertaining to fascist, Communist or other totalitarian content. Its ruling, which found amendments to the law in Poland that tightened up restrictions on the use of totalitarian symbols to be unconstitutional, is considered within three important contexts: first, the broad European context, where the concept of totalitarian crimes has become subject to EU human rights legislation relating to the freedom of expression; second, the context of post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, the context of transitional justice, where criminalising symbols of the past has become a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. The paper discusses the two case-studies most relevant to Poland, namely those in Germany and Hungary. Reference is also made to the Baltic States, which, together with Poland, have made a concerted effort to bring the notion of totalitarian crimes and histories to the attention of Europe. The paper concurs with the contention that cases concerning the use of symbols provide an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal and philosophical complexities of criminal uses of symbolism, the political realities, and the key dimension of transitional justice and its relationship to expression, law and memory.

Includes papers presented at a workshop in October 2010 in Bucharest.--Introduction, Page 1.