Croatia – Lustration: Yes or No? Or: Should The Constitution Include Condemnation Of Communist Regime and Its Crimes?

The (Josip) Perkovic case and the impending changes to the Constitution have once again made the question of lustration current in Croatia; many public figures, as well as Croatian citizens, advocate for its implementation, but it seems that barely a few understand what it actually entails, how to implement it and, more importantly, is it not too late for that.

Article by: Vesna Skare-Ozbolt
Published in: Politikaplus.com and HKV.hr
Translated into English: Ina Vukic

Lustration is a legal process for removing from public life and government institutions all those who had performed active duties within communist regimes, whether they were those giving orders or informers. Lustration is not a simple process, there are numerous legal disputing arguments associated with that process (the question of statute of limitations, breach of human rights, discrimination, etc.). Hence, in 2006 the European court for Human Rights in Strasbourg, in the lustration cases from Poland and Latvia found that Article 6 of the European Convention on the protection of human rights and fundamental freedoms (the right to a just hearing) was breached. It’s not, therefore, accidental that Czechoslovakia, after the first law on lustration had attracted criticism from the international community, domestic legal professionals as well as from the then president Václav Havel, continued its process of lustration far away from public eyes.

After the regime changes, all ex-communist countries had to face a “torturer problem”, as Samuel Huntington called it, i.e., how to proceed towards the former members of the party nomenclature. In spite of difficulties and legal doubts, lustration has yielded certain positive results in the countries of Central and Eastern Europe. Lustration in Czechoslovakia is taken to serve as an example of a relatively successfully implemented so-called “hard” lustration. Special commissions made up of “insiders”, the righteous of civil society and legal professionals, were formed in accordance with the law passed in 1991 and in order to guarantee maximum objectivity. The commissions checked information from secret archives on all public persons and those for whom it had been confirmed that they had collaborated with the secret service had to leave their positions. According to some estimates, about 40% persons from the government and public services were replaced in this way. The Slovak Prime Minister, Vladimir Meciar, opposed this law and it has never been implemented in the Slovakian region nor later in Slovakia after Czechoslovakia was split into two countries.

Germany had implemented the most transparent process of lustration. i.e. de-nazification, and under the pressure from the former DDR dissidents, it was the first to open the secret archives doors to citizens. The lustration was implemented in accordance with general norms that were defined in the Unification Agreement. A large number of public hearings were held and persons who had in the past worked in DDR secret service  (Stasi) had to leave their positions. Even the “ordinary”, lower levels, employees at the state and federal levels were lustrated; as a rule they were convicted to two years of prison after which they were granted automatic amnesty. Especially rigorous checking was administered in public service sectors that required high level of ethics and moral correctness (universities, schools, courts) and so, for example, about 1000 professors in Saxony region lost their jobs.

Hungary is perhaps the best example of a negative side of lustration, when the whole process turns into a battle for power and elimination of opponents. Depending on who was in power the covering of lustration varied in 10 lustration laws passed between 1990 and 2004; when socialists (former communists) were in power 500 – 1000 positions were lustrated (from representatives, government servants to judges and journalists) and, when right-wing was in power, lustration captured 7 – 8 thousand positions.

Poland had a relatively liberal communist regime and, in the beginning, rejected the idea of lustration. President Tadeus Mazowiecki, in his 1989 inaugural speech, expressed it, as “a thick line should be drawn under the communist past”. Members of Solidarity movement, nevertheless, sought a radical removal of the past and, hence, in 1992 a mere resolution requiring the checking of information about all highly positioned persons from the secret archives was introduced. The process was brought to a halt due to its unconstitutionality and it was only after an affair from 1995, when it was discovered that the then Prime Minister Józef Oleksy was a Soviet spy, that the passing of law on lustration was initiated in 1997, which encompassed about 20,000 people, from the President and ministers to judges and leading media figures.

In 2006, Bulgaria passed a law, which opened the secret police archives and formed commissions, which checked the involvement of Bulgarian citizens in agencies of state security police and the Bulgarian national army. The checks encompassed all levels, from the president to ministers and beyond, but the actual lustration was not carried out; persons for whom it was confirmed were active as former communist agents remained in their positions, but the information about them was published.

Romania had, between 1997 and 2010, brought several proposals of law on lustration but not one was passed because they were contrary to the constitution. The latest proposal of the law, by which the members of the former nomenclature would not be able to serve in public functions brought in 2012, is, according to views of professional circles, absurd, because, after more than 20 years from the fall of Ceausescu regime, it makes no sense.

Croatia was unable to implement lustration due to the war, i.e. Serb aggression. Let’s ask ourselves: what would have happened with lustration of HDZ (Croatian Democratic Union), SDP (Social Democrats Party), the Church, yellow and warmongering media outlets that were set in motion by secret services? At the beginning of the war – at that, when the secret services were at war among themselves? Certainly, Croatia would not have won that war, and new divisions among them would have ensued.  Hence, the absurdity of the theory that lustration was not implemented in Croatia because president Tudjman would have been the first to be lustrated.  It is a fact that president Tudjman had, among his closest assistants, people who were members of the repressive apparatus of the communist era – because he had no other choice, and also he needed the people who knew the system from inside. Having said this, it is less publicly known that Franjo Tudjman, after getting rid of some close assistants after the war, planned to continue with the so-called “soft” lustration through which some persons from the former regime, who gave their contribution to the battle for freedom, would have been discretely removed from political life without setting investigation in motion. His death put a stop to this but another process, the so-called “detudjmanisation”, was set in motion: let’s remember the proposal about changing the name of the Croatian anthem, the discursive changes of Croatian Statehood date, ridiculing of the person and actions of the late president Tudjman by the newly elected president Stipe Mesic, and especially his unreliable testimonies in the Hague court.

Two proposals for law on lustration were forwarded to the Croatian Parliament in 1998 and 1999 (the then HSP/ Croatian Party of Rights) but none were passed because they were contrary to the Constitution of Republic of Croatia and to the Resolution 1096 of European Council, according to which lustration is only permitted against those who had directly breached human rights, and not against all functionaries of the former regime. The legislative proposal suggested the formation of a lustration advisory body that would open the dossiers of secret services and, people who were pillars of the former regime would have been banned from political activities for 10 years.

The likelihood that Croatia will bring a law on lustration is really – nil. And, since it has not been done, it would be desirable to demonstrate maturity and minimal historical responsibility as well as to finally define the character of the communist regime and condemn its crimes through changes to the Constitution. For, if the Government introduces into the Constitution only the provision of removing statute of limitations for “all serious crimes” – and not “for crimes committed during the communist regime”, the crimes committed during and in the name of communism will become equal to other serious murders.

Furthermore, point 13 of the 2006 Resolution of European Council on condemnation of communist crimes calls upon communist and post-communist parties to clearly distance themselves from the crimes committed by the totalitarian communist regimes and to condemn them unequivocally; but, if the formulation proposed by the Government enters into the Constitution, ambiguities remain: the crimes of the communist regime, often committed under the mask of antifascism, will not be mentioned and, thus, not even condemned symbolically.  One would truly be naïve to believe that the provision for the removal of statute of limitations for all crimes will open the path towards processing of the remaining and living communist criminals – Minister Versna Pusic has clearly confirmed that with her statement that “the removal of statute of limitations for political murders in Croatia, 20 years after achieving independence, would implement lustration and that is unacceptable to them.”

And Prime Minister Zoran Milanovic was clear when he said “that they will eject King Kong and judge HDZ and the Church who had covered up committed crimes” without mentioning the crimes of Tito’s communists. Evidently, the Prime Minister, as well as the Minister for Justice Orsat Miljenic, think that Croatia has already condemned its communist criminals. And if those in government only want to send a certain moral message by the introduction of the removal from statute of limitations for all serious crimes – and although prof. dr. Branko Smerdel is correct when he says that “the Constitution is not the medium for relaying messages” – then they should do that in an appropriate way.  Poland has included the provision of removal from statute of limitations for political crimes in its Constitution, and the Czech have by law defined the communist regime as criminal.

Why does Croatia, that last bastion of communism in Europe, not want to clearly identify itself vis-à-vis the former regime? Why does this government mount barriers to all attempts to understand the past and SDP still does not permit the researchers and historians access to the fund of the League of communists? Although UDBA (Yugoslav Secret Police) has partly destroyed the archives, and “placed parts in a safe place”, i.e. in Belgrade, that fund contains a large amount of documents from SZUP (Service for the Protection of the Constitutional Order) and from all the committees of ONO and DSZ.  The arguments that the party is the legal successor of SKH (Croatian League of Communists), and so, according to their thinking, they are the only owners, absolutely do not stand.

Expectations that an eventual hearing in Germany would help Croatia with its belated lustration were palpable in the many statements and open letters by public persons recently forwarded to the European commissioner Viviane Reding.  I hold that it must clearly be said: Germany is not interested in the dismantling of the communist paradigm in Croatia but in the processing of the serious murder committed on its territory.

Given that it’s in one way or another connected to secret services, the eventual judgment could serve as a catalyst, but nothing dramatic, because Croatian citizens know that the murders of Croatian dissidents carry the signature of the former Party, and whether the main person who issued the orders was Stane Dolanc or some other highly positioned member of the former Communist Party of Yugoslavia or Communist Party of Croatia, is of less importance.

The truth is that countries, as a rule, do not extradite their former intelligence agents, but given that foreigners have already strolled thoroughly through our archives, that many transcripts have been handed over to the Hague, foregoing the provisions of the Constitutional law on collaboration with the Hague court (without any blotting out, unlike Serbia), where is there a danger for national interests? Besides, Perkovic will not be questioned in the German court on events from the Homeland War but on circumstances surrounding Djurekovic’s murder. In the closing of Chapter 23 of the Agreement on Croatia’s accession to European Union membership Croatian negotiators had correctly assessed Perkovic and other cases were legal and not political questions and, in line with this, they should not have had any reservations vis-à-vis the clause on implementation of the European arrest warrant (EAW) for crimes committed prior to 2002. The political colouring of the whole case around the European arrest warrant was cast exclusively by Milanovic’s spite, in an inappropriate way and a way that is unacceptable to Europe.

The real lustration in Croatia will be set in motion at that moment when EU laws and all the conventions of a civilised state are applied consistently. The old members of the “red elite” will then finally fall off the “transitional train” because they will not be able to adjust to the conditions in which laws apply to everyone equally, and their heirs, unless they want to fare like their fathers, will be forced to play according to European rules.

About the author: Vesna Skare-Ozbolt is a Lawyer with post-graduate studies in Criminal law.  She served as legal advisor to the late President Franjo Tudjman for ten years. She led the process of Peaceful reintegration of Eastern Slavonia in the late 1990’s. She was Minister of Justice of the Republic of Croatia (2003-2006) and author and initiator of many legislative proposals in Croatia. She served as elected member of Croatian Parliament over three mandates from year 2000. She is also President of Democratic Centre party. Honorary citizen of Vukovar, Ilok and Brela. 1998 Woman of the Year. Decorated with the Order of Croatian Interlace, Order of Croatian Trefoil and Order of Katarina Zrinski and Vukovar Medal.  Source: http://www.vesna.com.hr