The Political Use of Capital Punishment in Communist Romania between 1969 and 1989
There are two major studies that approach the death penalty in East European countries during the communist period. The first one is a chapter by Stanislaw Frankowski in a book entitled Capital Punishment: Global Issues and Prospects.1 It is a comprehensive survey of the evolution of capital punishment in all the East European countries, and relates it to the political context. The second study is the article ‘The Abolition of the Death Penalty in Central and Eastern Europe’, by Agata Fijalkowski.2 Although focused on post-communist abolitionism, like most of the approaches provided by legal scholars, it also gives an extensive summary of capital punishment during the communist period in Central-Eastern European countries. It emphasizes that during the Stalinist period, the death penalty was used to intimidate the population, becoming a political issue rather than a legal one. The study confronts one of the major problems of the research field – the lack of data – relying mainly upon the data that Frankowski provides in his research.
It is also worth mentioning the comparative study of Andrew Scobell on China, the USSR, Cuba and the GDR,3 which draws some general conclusions regarding the relationship between the evolution of criminal justice systems in communist countries and the use of capital punishment. Of course, most studies focus on the Soviet Union,4 and their findings are relevant to the extent that the Soviet case was a role model. Several other studies focus on China or other communist countries in different parts of the world that I will not focus on.5
Thousands of people were killed by state actors after the communists took power in Romania in the mid-1940s until the late 1950s, while less than three hundred were legally executed, as this chapter will show. Why did the regime choose this fate for just a few of them, and how did the two forms of state killing coexist? Although marginal compared to other repressive phenomena in the period, like extrajudicial executions or deaths in prison, especially from a quantitative point of view, I will assert that the legal provisions and their actual use successfully illustrate the politicization of the death penalty itself.
The contradiction between the ideological rejection of capital punishment, rooted in Marxism, and its almost continuous use in Romania from 1944 until 1989 is intriguing at first sight. My aim is to analyse the mechanisms that lie behind both ideology and practice, and to examine how propaganda used the death penalty. Why was capital punishment continuously used, and why could communism not lead to an ideological abolition? Was there a specific debate on the ideological issues, or was the punishment used as in any other society, or was it in fact used as a political weapon?
My understanding of the influence of politics on capital punishment starts from the Weberian concept of monopoly on the legitimate use of violence,6 the death penalty thus being the ultimate coercive instrument in the hands of the state. The legitimacy of the newly established communist regime in Romania faced many challenges, and the use of capital punishment also has to be understood as a way to demonstrate its legitimacy. Going further, Otto Kirchheimer observed that law was dominated during the period of power seizure by a revolutionary legality, when strengthening the state under the leadership of the Communist Party was the main purpose.7 This was translated into swift criminal proceedings or transforming the law into a tool of the regime. The recurrence of this principle throughout the first half of the period is also worthy of analysis.
Michel Foucault’s Discipline and Punish8 marked a paradigm shift in understanding how the punishment system evolved from the Middle Ages to modern times. It is helpful in understanding the judicial system of Western societies, and through all the comparisons that arise, in analysing the communist criminal justice system. Obviously, communist countries obeyed the new paradigm where executions were no longer public, but subtle disciplinary mechanisms indirectly permeated the social body. But there have also been some peculiarities: unlike liberal jurisprudence, the disciplinary penalty, which developed in communist countries, evaluated individual behaviour through mixed rules defined by laws and normativity, be it political or societal, and the study of both is relevant. Although his references to modern totalitarianism were rare, if one follows the Foucauldian paradigm, communism was the zenith of disciplinary power.9 Meanwhile, if one agrees that totalitarian control was not so draconian, one might notice that not everything was controlled, or that sometimes control was exercised indirectly. However, sometimes improvisation also led the way, based on old pre-communist legal provisions still in force, proving once more a shift between communist ideology and real socialist practice. This is also the case with capital punishment, which was politicized, but at a new level of manipulation and in a new manner that I will describe below.
In a liberal society, the legal discussion about capital punishment focuses on deterrence, the retributive/restorative justice binomial, or the concepts of consequentialism/utilitarianism,10 while for the communist societies, their conceptual strength weakens and the discussion becomes more focused on ideology. One could speak about retribution in eliminating political opponents in the first decade after the war, and also about the importance of general deterrence in the last two decades, but in my opinion, they were constructed on a new conceptual basis which was defined by antagonistic concepts.
The first and most important is the concept of the New Man. The new communist regimes in the region, most of them imposed by the Soviet Union, had to deal with a lot of enemies, many of them citizens inside the state, be they recently defeated fascists or regular citizens, most of them lacking serious communist ideological convictions. However, one of the core ideas of the New Man concept was that regardless of their past, individuals can be re-educated and made useful to communist society. The archaeology of this idea takes us back to Marx, and specifically related to the death penalty, to one of the articles from his youth where he clearly positions himself against capital punishment.11 On a lower political and public discourse level, the attitude changes, especially when the regime wants to reconcile the inconsistent use of the death penalty with the general penological policy that was based on re-education – although re-education itself was often achieved through terror.
I argue that this contradiction was overcome mainly in two ways, but these three elements often intersected, and this result can be confusing, as we will see. First, in the Stalinist period, Stalin’s theory of the intensification of the class struggle in emerging communist societies was the perfect argument to accept capital punishment as an ‘exceptional and temporary measure’.12 Later on, the human rights debate appeared, and the communist countries were keen to show the achievements and advantages of their type of social order in this respect. The basic thesis of the communist approach to human rights was that individual happiness in the new social form was possible only through the achievement of happiness among the whole society. The result was that the individual did not have to fight the state any more, but to obey it, since it assured his or her welfare and protected the happiness of the whole society.13 Therefore, there is certainly a deterrent element, but a retributive one is denied.
A second layer of the methodological discussion addresses another question that I posed above, which goes beyond the discourse and is more rooted in reality than in the ideological discussion. How was capital punishment used as a political instrument? To answer this, I will refer to the debate that defined the historiography of communism as between totalitarian and revisionist schools of thought. In the totalitarian approach, the almighty state rules every part of political and social life through coercion and terror. This assertion is denied by revisionists, who emphasize how certain aspects of life were more independent, or I would say, negotiated with the state, which is also convergent with Foucault’s theory of disciplinary mechanisms. I will show that the use of the death penalty successfully illustrates frequent irregularities and an incoherent policy of the representatives of a regime that seemed to not always be aware of its aims or the ways to achieve them, as it transformed its own perpetuation into one of its main goals, especially when it was weakest, at the very beginning and close to its end. This resulted in the use of the death penalty in a manner that was dictated by immediate ‘needs’ and reactions to specific events, rather than a coherent criminal policy, and thus was ultimately less influenced by ideology than one might expect. However, the rules of the game were established by the state through legal provisions, so I find a balanced perspective offered by the two schools the most appropriate.
Thus, I will try to closely trace the relationship of the death penalty with the state as part of the disciplinary mechanism, applying the following scheme:
First, I will describe the legal framework that established the capital crimes from two angles. I will identify the legal provisions in the form they appeared in the Penal Codes and all the subsequent laws that amended them. I will also analyse the way they were presented to the public at large through commented and annotated versions of the Penal Code14 or press, and contrast this with the context from the legal milieu and the debates that they created among jurists, through documents from the Ministry of Justice.15 I will then try to view the legal provisions from an evolutionary perspective, to track all the changes, both in the number of capital crimes and their content, as they occurred from 1969 to 1989, contextualizing the penal policies with reference to the larger political framework and the eventual direct political interferences as they result from documents like Securitate reports16 or transcripts of the meetings of the Central Committee of the Communist Party.17
The second section of my analysis will refer to the application of the death penalty, including both sentencing and carrying it out. There are two main categories of sources that will allow me not only to see numbers, but also other important data. The penal registration form18 is a short two-page document that the penitentiaries had to fill in for each detainee throughout the communist period, and provides the most extensive set of data regarding executions.
Unlike the penal registration forms, State Council and Presidential Decrees19 offer much more information, although they are available mainly for the 1970s and 1980s. A person sentenced to death could address a clemency petition to the State Council prior to 1974, and after that year to the President. Alongside the clemency petition, there was a report issued by several state institutions: the Ministry of Justice, the Ministry of Interior, the Prosecutor General and the Supreme Tribunal.
Finally, there are some cases which illustrate how the death penalty was related to politics that are best described through short (collective) biographical accounts: the condemnation of Ioan Mihai Pacepa, an adviser of Ceausescu and head of the Department of Foreign Intelligence, who defected to the United States, for instance. I will also refer to the members of the numerous groups, some of them executed, some others only condemned, such as the groups sentenced for economic crimes in the 1980s. Another factor of my research will include other specific aspects of capital punishment, such as the manner of the executions, who was exempted, and so on.
In terms of the death penalty, the first half of the communist period (1944–69) was very dynamic. Its beginning was dominated by the issue of war criminals, which often took a retributive form, a disguised way of punishing the fascists, former political rivals of the communists. The scarcity of the data does not allow us to have a full account of the dimensions of this phenomenon, while a comparison with other East European communist states confirms that the data are incomplete. In 1949, the legal provisions concerning capital punishment were extended to several economic and political crimes, intended to frighten a large proportion of the population. The propagandistic use was centred on the publicity of the legal provisions and not on particular cases, except for a bank robbery case which was presented to a limited audience. Counting first on the specific deterrent effect of the executions, the regime used the death penalty mainly to eliminate fascists, saboteurs, traitors, members of the resistance groups, and so on. Although it could also directly eliminate them, the authorities decided to follow the legal procedures. This was meant to provide an appearance of legality that aimed to improve the regime’s image and also had a general deterrent aspect. Although leading jurists debated and attempted to abolish capital punishment in 1956, legal provisions and actual use tightened in 1958 when the Stalinist ruler Gheorghe Gheorghiu-Dej felt less secure about his position. The reasons were the de-Stalinization process that followed the death of Stalin in the USSR, the events in Hungary in 1956 and the withdrawal of Soviet troops from Romania in 1958. After the high execution rates registered in 1958–59, they returned to normal until the adoption of the new Penal Code in 1969, demonstrating that the application of the legal provisions was, once more, a political matter.
Defined by a new attitude of the state towards legality, the period 1969–89 offers more accurate insights into the use of the death penalty. Following the description of the legal provisions concerning capital punishment, I will illustrate its political use through the examples of the campaign against economic criminality in 1984 and the Ceausescus’ continuous obsession with traitors. Finally, I will analyse the last year of the regime, including the execution of the Ceausescus and the abolition of capital punishment.
1969: A New Penal Code
The harsh political repression of the 1950s in Romania ended with the release of most of the political prisoners during 1962–64. From a Foucauldian perspective, what followed is very interesting. The brutal imprisonments, prison camps or tortures were replaced by more refined measures of coercion like home imprisonment, marginalization and dispersal of the dissidents. Regarding capital punishment, important changes were initiated by the authorities, first in relation to its use, followed by legislative changes.
The generational change of leadership usually marked the adjustment of the official policy regarding the death penalty in communist countries, as Andrew Scobell has revealed.20 This applies to the Romanian case as well, in starting 1965. As we can see, a massive change in the legal framework occurred only in 1969, under the leadership of the younger Nicolae Ceausescu, when a new Penal Code came into force.21 Its provisions were established more attentively, and the attention to legality shows the subtlety of the new death penalty policy, while the use of capital punishment in the 1980s contradicts this legally established attitude.
The Romanian authorities paid much more attention to international organizations and norms in this period. On 26 November 1968, the Economic and Social Council of the UN asked member states, through Resolution no. 2393, ‘to provide careful legal safeguards for those accused of a crime punishable by death’.22 Three years later, in 1971, another resolution, no. 1574 of 20 May, stated that ‘the main objective to be pursued is that of progressively restricting the number of offences for which capital punishment might be imposed, with a view to the desirability of abolishing this punishment in all countries’.23 Romania only answered the comprehensive quinquennial UN questionnaire regarding the death penalty in 1980. However, these answers were provided by Militia, Securitate and the General Direction of Penitentiaries, and not by the Ministry of Justice, which illustrates the politicized character of the death penalty.24
The analysis of the legal provisions and the intentions behind the changes are largely explained after the adoption of the new Penal Code by its official commentary, Theoretical Explanations of the Romanian Penal Code.25 The volume firstly stresses that the death penalty is ‘a means of defence of the society and not a revenge instrument …. This is in accordance with the principle of socialist humanism.’26 The official ideological perspective pictures the future of the death penalty as a one-way street: ‘Because of the political, economic and cultural developments, we are getting closer to the point where the death penalty will be useless.’27 The introduction of this socialist humanism principle has to be understood in the context of the international emergence of the human rights principle. According to Roman Wieruszewski, the official interpretation in communist countries was defined by an original attitude towards human rights that practically denied all its content. The emphasis changed from individual rights to collective duties that had to prevail in order to assure general happiness that the state was taking care of.28 In this way, rights became duties, and any deviation had to be punished; Romania made no exception.
In particularly regarding the Romanian perspective, two local authors connect the legal discussion to the New Man concept in a utopian manner: ‘The humanization process of the law is intimately connected to the humanization of the man, to the formation of the new man of our society …’29, while Ceausescu himself denounced Stalinism in rambling words:
It is necessary to start from the fact that the socialist law, the socialist legislation have to break any connection with the bourgeois law, with the old bourgeois conception …. Otherwise we will still be stuck in the old Stalinist conception according to which while socialism becomes stronger, the class struggle becomes sharper and the repressive measures have to be increased ….30
In the new Penal Code, capital punishment was mentioned separately from the general list of punishments, in Article 24: ‘because of its temporary character’.31 Extremely importantly, the death penalty was provided only for the aggravated form of particular crimes and mentioned only as an alternative punishment alongside 15–20 years’ imprisonment, with two exceptions: genocide and inhumane treatment. This has to be read in the context of the adoption by the UN of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity on 26 November 1968. Romania signed and ratified it in 1969.32 Stressing that capital punishment was retained for its deterrent role, the authors of the Theoretical Explanations mention, however, that it ‘lacks some of the attributes of a good punishment (because) it is irreparable in case of judicial errors, and lacks the quality of reeducating the criminal’.33 The experts of the official commentary concluded that the careful use and interpretation of the courts should not allow these abstract deficiencies to affect the application of the death penalty.34
There were over thirty capital crimes in the 1969 Penal Code, less than in 1952, when an abolitionist report initiated by five jurists enumerated 48 cases. Seven of them were wartime crimes (leaving the navy, desertion from the battlefield, capitulation and so on). Besides treason (Articles 155 and 156), terrorist attacks (Articles 160 and 161), aggravated murder (Article 176), undermining national economy (Article 165-2) and theft from state property with severe consequences (Article 224-3), capital punishment was reintroduced for embezzlement (Article 223-3). The new Penal Code represented a definite advance to more clearly defined legal provisions regarding capital punishment compared to the previous period, but still retained substantial powers in the state apparatus.35
The debates about the Penal Code stressed the issues surrounding the death penalty, as a joint report of the Ministry of Justice, Prosecutor General and President of the Supreme Tribunal states:
It has been proposed that the death penalty should not be provided for any crime (art. 54), or should not be provided for crimes against public property (art. 54). The proposals have been rejected because in this phase this punishment is necessary for serious crimes because of its deterrent role.36
The official transcript of a plenary session of the Central Committee of the Romanian Communist Party fails to admit this, and presents a more balanced perspective: ‘Tov. Vasile Pantilinet: Of over 7000 formulated proposals, most of them refer to … non-application of the death penalty for crimes against public property, the application of capital punishment for some crimes that are not included in the project …’.37 The Ministry of the Interior had an important role in supporting the death penalty for crimes against state property, as evidenced in their written proposals.38
The Penal Code was amended several times before 1989, the most important changes being enacted in 1973.39 Other annotated and commented versions of the Penal Code were also published during this period. One of them,40