Transitional Justice at 20

E.U. Economic Affairs Commissioner Joaquin Almunia addresses delegates at a conference held by Poland's central bank, marking 20 years of market reforms after the 1989 collapse of communism. (Photo: Janek Skarzynski/ AFP-Getty Images)

When the Czechoslovak law on lustration was adopted back in October 1991, its scope was limited both in terms of its aims and its timeframe. The law did not aim to serve justice, or deal with the past—those notions only came later—but to prevent the possibility of a communist coup by preventing "elements" from the former regime from infiltrating the new government. As such, it was designed to have a limited duration of 10 years.

Some 18 years later, the process of lustration, originally designed to keep those who had collaborated with communist security services from taking positions of power in the new democracies, is nowhere near finished. On the contrary; in some countries it has not even begun. In others, such as Poland, Slovakia and Hungary, the early lustration attempts have revived and expanded a decade later.

In addition, over the years the process has become more complex. Its scope has broadened, in some cases beyond recognition, and it has become an instrument of political maneuver and manipulation. In some ways lustration has become intractable.

A legal minefield

Twenty years since the fall of the Berlin Wall, the term transition is still valid. So is lustration as one of its distinguishing marks. As with other aspects of transition, the Central European countries took the lead, whereas those in the southeast lagged behind. In the countries of the Western Balkans the process has not even effectively commenced.

Albania and Macedonia are the two Balkan states with the most recent experience of trying to pass lustration laws. Macedonia did so early in 2008 and embarked on its implementation a year later with the creation of the lustration commission, the main body in charge of verifying sworn statements of candidates for public office that they did not collaborate with the communist-era secret services. Albania adopted its law late last year, only to earn the criticism of the international community as a potentially serious threat to human rights in the country. The law was said to breach close to 30 provisions of the Albanian constitution. It barred from government employment anyone who worked for the Sigurimi (communist secret police), the judiciary, or the prosecution service from 1944 until 1990. It provided for the creation of a body empowered to fire anyone on lustration grounds, without proving they had committed a crime. The law was duly struck down by the country's constitutional court, and the Macedonian lustration instrument looks to be headed for a similar fate. Macedonia's constitutional court recently accepted a petition to review some key provisions in the legislation, primarily its wide scope and retroactive provisions.

These two countries are no exception. Lustration laws have often proved unable to stand up to constitutional scrutiny. Some of their features, such as retroactive effect, broad and ill-defined categories of offenders, and problems in differentiating between the public and private spheres have often led to repeals by constitutional courts. Bulgaria had one of its early normative lustration attempts from 1992 annulled by its constitutional court. (Sofia enacted its last lustration instrument at the end of 2006, two weeks before it joined the European Union.) Similarly the constitutional court in Czechoslovakia ruled in November 1992 on a narrowing of the law's scope to exempt from the process "candidate informers," that is, people for whom there was no actual proof of active collaboration. More recently, in 2007, the constitutional court in Poland rescinded most key provisions of the Kaczynski brothers' mega-lustration bill—the court had reacted similarly to a previous bill in 2000—which broadened the scope of previous phases of lustration. The legislation aimed to screen millions of Poles and to ban former collaborators even from jobs in the private sector, such as private newspapers or universities.

Constitutionality has been only one challenge for lustration legislation. And perhaps the fairest one. Lustration often tends to create a witch-hunt mood. When Macedonia voted on its bill, the media noticed that practically nobody dared vote against it, possibly for fear that lack of support could be interpreted as actual guilt. In addition, it does not take a great legal mind to conclude that the tendency to screen thousands or, as in the recent Polish attempt, even millions of citizens, without much probable cause, may clash with the ideals of legal security and rule of law.

The other set of problems related to lustration in post-communist countries often concerned the ease of political manipulation. Even Lech Walesa was subject to such an attempt ahead of the presidential elections in Poland in 2000, when he was accused of having been a collaborator. The understanding that notes written in secret police files are not a sound basis for doing justice has been one of the strongest arguments against lustration. In the words of Polish dissident and journalist Adam Michnik, "It is absurd that the absolute and ultimate criterion for a person's suitability for performing certain functions in a democratic state should come from the internal files of the secret police."

Cui bono?

Yet another set of challenges on the opposite end has included the problem of political will or capacity. Governments pass legislation but then cannot implement it. A case in point is Serbia. It enacted its law on lustration in 2003 but has done nothing to implement it since. The law has been dormant for over six years, for obvious lack of political will to pursue it. Macedonia seemed headed in the same direction even before the law was challenged before the constitutional court a couple of months ago. A year and a half after passage of the law, the commission had neither offices nor budget. It existed only on paper. Commentators say this type of challenge comes from a darker place: from factors within the political establishment that delay implementation because they stand to lose from it.

A major concern about lustration, specifically in the Balkans, is its slow pace. Croatia put a lustration bill up for a vote in parliament twice, in 1998 and 1999, and both times it was voted down. Neither Montenegro nor Bosnia has a law, although Podgorica at least has a bill.

In these countries the overall problem is delay. If two decades since the beginning of their transition they have not even started a lustration process, when will they be able to complete it? The experience of the Central European countries shows that the best and least painful way was to do it immediately and quickly. Subsequent waves of late lustration tend to broaden, protract, and become overly politicized.

Michnik, who came to advocate abandoning the lustration process in Poland, has said that states cannot move forward without having reconciled with the past. But the question in many states has been how to achieve this and maintain a balance between justice and stability. Stability has been uppermost in the minds of legislators in many Balkan states, at least in previous years. Especially in those Balkan countries that were caught up in the wars of secession, coming to terms with the very recent past has been a more critical and acute problem than seeking justice for the misdeeds of a more distant one.

This article was originally published by Transitions Online:

View the Worldpress Desk’s profile for Risto Karajkov.