Debating Lustration
Implications and Comparative Perspectives
What is LUSTRATION?
Concept
Lustration:
- purification, vetting, cleansing, purge/truth- finding,
retribution, memory…?
• Transitional justice:
– Transition … to… from…?
- Democracy
- Nazism (denazification)
- Communism (decommunization)
- Yanukovich rule (de…?)
– Justice …
• Coping with the past: memory, justice, truth, reconciliation,
retribution
Transitional or retroactive justice?
Transitional justice in practice
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Trials
Restitution
Truth commissions
Access to files
Official apologies
Cleansing of public administration
Reopening of statutes of limitations
Lustration in practice
• Revealing truth
opening of archives, making true information
public, disclosure requirements
• Decommunization
removal of ex-communists from political
positions and public administration
Lustration: Justice
- Revealing the truth v. prosecution, trials,
retribution, and vengeance
- certain possible limitations on political rights
v. criminal prosecution
- Presumption of innocence
- Human rights, rule of law and due process
- Should the new, democratic state use the same
methods as the old, repressive one?
Lustration: democratization
• Generational change
– New ideas, clean politics, trust and legitimacy
– Disruption and quality of governance
• Empirical studies: the causal link not
established
Lustration: democratization
There is no reason to believe that a large number of
old functionaries, behaving in the past for the
motives of fear, opportunism, or lack of better
prospect, will necessarily undermine the
democratic rules of the game in a totally new
system, operating along different modes and
procedures
Sadurski
Lustration: reconciliation and
conflict resolution
cleansing and retribution policy
- Stigmatization: (the risk of) creating a second
class citizenry
- Imposing collective responsibility for complicity
on past wrongdoings
- Dividing the society
v. policy of forgiveness
- let’s the bygones be bygones
- amnesty but not amnesia
Lustration: reconciliation and
conflict resolution
Dividing the society at a time when strong
mobilization is needed to build sustainable
democratic institutions and counter external
threats
Lustration in comparative
perspective
• Radical model
– Publicity + exclusion of a big group of people from the
political class: former GDR, Czech Republic
– Czech Republic: 310.000 people screened, 15.000-positive
• Intermediate model
– Ban on former secret agents and KGB informers to
hold senior positions: Albania (90-ies laws) and Baltic
states
• Lenient or moderate model
– Disclosure requirements but no bans: Poland, Hungary,
Bulgaria
The variables for the choice of
models
• The degree of repressiveness of the past regime
• Mode of transition
– Revolution v. round-table
• Involvement of the elements of the former regime
in the new power
European standards
• PACE Res. 1096(1996) on measures to dismantle the
heritage of former communist totalitarian systems
– guilt must be proven in each individual case. Individual
guild rather than collective guilt should be established
– Aim of lustration is to protect democracy, not to punish
those guilty
– the right of defense, the presumption of innocence and the
right to appeal to a court must be guaranteed
– lustration has strict limits of time in both the period of its
enforcement and the period to be screened
– Limitations periods can be extended but no retroactive
laws shall be adopted
European standards
Venice Commission opinions
2009: Albania
- Law adopted 20 years after transition
- lustration procedures, despite their political nature, must be
devised and carried out only by legal means, in compliance with
the Constitution and taking into account European standards
concerning the rule of law and respect
- for human rights, termination of the mandate of the President of
the Republic, the members of the Constitutional Court, the
members of the High Court, the General Prosecutor, etc., violate
the constitutional guarantees of their mandate and are therefore
contrary to the principle of the rule of law
European standards
Venice Commission opinions
2012: FYR Macedonia
- Introducing lustration measures a very long time after the beginning of the
democratization process in a country risks raising doubts as to their
legitimacy
- The application of lustration measures to positions in private or semiprivate organizations goes beyond the aim of lustration
- rule of law and due process of law before the lustration commission shall
be ensured
- The identify of persons considered as collaborators should be published
only upon a relevant court judgment
Democratization v. prosecution
“the goal of lustration shall consist, above all, in
the protection of democracy against
reminiscences of totalitarianism, while the
secondary goal thereof, subordinated to the
realisation of the primary goal, shall be the
individual penalisation of persons who undertook
collaboration with the totalitarian regime”quoted from a judgment of the Polish Const Court