WHAT IS LUSTRATION?

Kristina Gogic,
Croatian Human Rights, European and International Law lawyer
on visit to Australia, November 2018

«WHAT IS LUSTRATION? MODELS OF LUSTRATION IN THE POST COMMUNIST EUROPEAN COUNTRIES»

By Kristina Gogic

Lustration is the process of making something clear or pure. The term is taken from the Roman lustrum purification rituals The term has been adapted to the purge of government officials who were once affiliated with the Communist system in Central and Eastern Europe. Various forms of lustration were employed in post-communist Europe. The concept might resemble de-Nazification in post-World War II Europe, and therefore resonates with concepts such as possible accountability for past human rights abuses, corruption or injustice.

Lustration of policies and laws

After the fall of the various European Communist governments in 1989–1991, the term came to refer to government-sanctioned policies of “mass disqualification of those associated with the abuses under the prior regime”. Procedures excluded participation of former communists, and especially of informants of the communist secret police, in successor political positions, or even in civil service positions. This exclusion formed part of the wider decommunization campaigns. In some countries, however, lustration laws did not lead to exclusion and disqualification.

Lustration law “is a special public employment law that regulates the process of examining whether a person holding certain higher public positions worked or collaborated with the repressive apparatus of the communist regime”. The “special” nature of lustration law refers to its transitional character. As of 1996, various lustration laws of varying scope were implemented in the Czech Republic, Slovakia, Hungary, Macedonia, Albania, Bulgaria, the Baltic States (Lithuania, Latvia, and Estonia), Germany, Poland, and Romania. As of 1996 lustration laws had not been passed in Belarus, nor in former Yugoslavia or the former Soviet Central Asian Republics (Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan) (Ellis, 1996).

We have many different opinions regarding this very important subject: positive and negative, of course. My opinion is that without the Lustration Law many questions will remain unanswered. There will be doubts, whispers, public secrets and slanders. But people who were imprisoned will never know the truth about who betrayed them and by whose orders they were persecuted. The past will remain unresolved.

Human rights have been violated for years to persons who have been imprisoned and persecuted by Administration of national security (UDBA) in ex Yougoslavia and abroad, but they still do not have the right to know, even today, by whom they were persecuted and imprisoned (their names), who betrayed them collaborating with the secret services. Therefore, the most important part in the lustration process is – the opening of archives. For example in Croatia some archives are still closed for the public. And of course political will must exist because without it it isn’t possible to adopt the lustration law. Government has to propose the Law and Parliament has to adopt it.

The Council of Europe adopted a 1481 resolution in 2006, which strongly condemned the massive violations of human rights by totalitarian communist regimes. There is also a European Parliament resolution on European conscience and totalitarianism made in 2009 on whose basis 23rd August was declared a Day of Commemoration for all the victims of these regimes. However, in the Croatian Legal System, there is only a declaration condemning the crimes committed during the totalitarian communist regime in Croatia from 1945-1990, which was passed in 2006, but there is no prohibition on the execution of public duties for people who had violated human rights in Croatia/Yugoslavia at that time or worked with the secret services of the former Yugoslavia, so there is no sanction for these persons. The aim was the same as the later position of the Resolution by the Parliamentary Assembly of the Council of Europe 1096 (1996), the position of the European Court of Human Rights and the Venice Commission: “a democracy has to be able to take measures preventing a return of the totalitarian regime”. Conventions of Geneva – the crimes in case may be prosecuted hence the Criminal Code of any post communist country prescribed that war crimes and crimes against humanity can be punished indifferent of time lapse. I’ll talk later about one case/trial which was held in Germany not in Croatia because of the absence of the applicable law.

Here it is necessary to cite Article 6 of the Resolution of the European Parliament: “The European Parliament regrets that twenty years after the collapse of communist dictatorships in Central and Eastern Europe, access to documents that are of personal relevance or are needed for scientific research is still unduly restricted in some Member States and calls for legal effort in all member States towards opening up archives, including those of the former internal security services, secret police and intelligence agencies, although steps must be taken to ensure that this process is not abused for political purposes. “It is obvious that political ruling parties have not exactly been especially interested in the passing of lustration law, although the European and international law says how much it is necessary to adopt such a law and how it is necessary to clear to the public the idea of what such a law brings.

Very good model of lustration is adopted in the federal Republic of Germany. Immediately after adopting agreement on unification in 1990, Germany began to create a legal framework for lustration. This process lasted for two years, after which the Stasi Records Act is adopted on December 29, 1991., which made possible the opening of secret files of the former communist regime in Eastern Germany, and in which 111 km of material was found. All state bodies and all private persons who have knowledge of the existence of such documents, records, films and others, are obliged to report it to the Office of the Federal Commissioner without delay and give them access to all the documents they possess and to waive the right to use them. The Stasi Records Act applies to the records of the State Security Office of the former GDR, which can be found in the possession of public authorities of the Federal State and its states, private individuals and other private bodies.” The law also regulates its purpose and scope:

“1. To facilitate individual access to personal data relating to a person which the State Security Department stored, so that an individual can clarify which influence had the State Security Department on his personal destiny;

2. To protect the individual from reduction of his rights to privacy, caused by the use of his personal data stored by the State Security Service;

3. To ensure and promote the historical, political and legal reconsideration of the activities of the State Security Service;

4. To provide to public and private bodies access to information, in order to ensure the purposes specified in this law.”

Roland Jahn, Federal Commissioner for the Records of the State Security Service of the former German Democratic Republic, who had a lecture in Zagreb in 2015., said that in 2014. around 5000 people in Germany requested access to secret files about them. So, 25 years later, people are still seeking access to the files, which indicates the need for the adoption of the law on lustration in Croatia, without any question of delay. How much the Office of the Federal Commissioner for the records of the State Security Service of the former GDR is important in Germany is shown by the fact, that the former federal commissioner, who filled this duty for ten years, was the German president for 10 years. The Office receives from the budget 100 million Euros a year, which also speaks of its importance. In fact most of this proceedings ends with prohibition of performing public duties for the individuals which were worked or collaborated with Stasi and some of them were in jail after criminal procedures against those who had committed serious crimes in order to sustain the former regime, crimes which were not prosecuted due to political reasons. That number isn’t big; less than a 100 persons.

When Mr. Jahn opened his secret file he saw who betrayed him and put him to jail; he was very surprised when he realised which friend protected him and which not; informers were usually persons around the victim of that regime; family, friends, business associates…. Some of them worked or collaborated with secret service under the pression, blackmail and some of them because of their convictions.

He mentioned a film based on the true story The Lives of Others (German: Das Leben der Anderen) made in 2006 German drama film by Florian Henckel von Donnersmarck, about the monitoring of East Berlin residents by agents of the Stasi, the GDR’s secret police based on the materials of the Stasi Archives. The writers girlfriend betrayed him under the pression and blackmail and she become an Stasi agent and the Stasi agent which was monitoring him protected him and in fact saved his life. He realised that after fall of the Berlin Wall when he was reading his secret file. I recommend to look at that film.

Other good model of lustration is Polish example: they have two laws: The Law on the Institute of National Remembrance of 1998 and the Law on disclosure of information of 2007 were voted in Poland, after the Constitutional Court abolished it twice and returned it back for changes. This procedure lasted for a long time, it was very difficult to open all the files, so they started preparing legal text in another way, depended on confession; anyone who works or wants to work in government bodies, judicial bodies, banks, then academics, journalists, members of management boards, researchers, professors, and those who were born before 1 August 1972, must submit vetting declaration, being subject of review, on the work of the state security services or cooperation with them, in the period from 22 July 1944 until 31 July 1990. If a person who has the obligation to make a declaration does not do that, or he/she does not state the truth, he/she will be punished with imprisonment from three months to ten years.

Before the adoption of that law, Institute of National Remembrance was founded in Poland in 1998, and its role was recording, collection, processing, archiving, managing and providing access to documents on crimes committed by state institutions against Polish citizens during WWII (Nazi and communist crimes), at the time of the German and Soviet occupation, as well as in the era of the Polish People’s Republic. The Commission for the prosecution of crimes against the Polish nation was established within the Institute. The Institute is funded from the state budget. For the president of the state, his deputy, members of parliament, for the European Parliament and representatives of local governments, that is to say for people who are chosen in the elections, that process is regulated by the provisions of relevant laws.

Very interesting model is The Czechoslovak/Czech Lustration Model The lustration acts were adopted still under Czechoslovakia, which made the country one of the very first to introduce such legislation. Another specificity consists in that there have been two lustration acts – called the Great Lustration Act and the Small Lustration Act, respectively. The former, the Great Lustration Act (hereafter “GLA”) was enacted in October 1991,2 about two years after the Velvet Revolution bringing about the end of the communist regime in Czechoslovakia. The GLA applied in the whole territory of Czechoslovakia. It barred certain categories of people from holding a range of positions in the state administration, the armed and security forces, constitutional courts and state-owned enterprises (so called protected positions). The categories of excluded people encompassed, among others, officers and collaborators of the State Security Service, high officials of the Communist Party, members of the People’s Militias or students of certain high schools (so called suspected positions). Some changes have been later brought to the Act by amendments and by the decisions of the Czechoslovak/Czech Constitutional Courts.

The Great Lustration Act was originally adopted for five years and was thus to remain in force till 1996. In 1996, however, despite the veto of the then president Václav Havel, the scope of the application of the GLA was extended till 2000, And in 2000, the time limit on the application of the Act was abolished all together. That means that the Great Lustration Act is still in force in the Czech Republic. In Slovakia, on the contrary, the scope of the application of the GLA was not extended and the Act thus expired in 1996. The second piece of lustration legislation, the Small Lustration Law (hereafter “SLA”) was enacted in June 1992,3 only for the Czech part of Czechoslovakia. It is very similar to the GLA, it is just specifically designed to apply to certain positions within the Ministry of Interior, the Police and the Penitentiary Service. The categories of people excluded from occupying these positions are almost identical as under the GLA. The SLA also had its scope of application repeatedly extended and is still applicable, and applied, in the Czech Republic. On the practical level, the two lustration acts operate in a similar way. They foresee a range of protected positions. Those who held these positions in 1991-1992, when the GLA and SLA entered into force, or who have stood as candidate for any of these positions since then, have had to undergo a screening (or vetting) procedure. During this procedure, they have had to produce two documents – a so called lustration certificate and a personal statement; lustration certificate indicates whether a persons was or was not an officer or a collaborator of the State Security Service during the Communist period. The positive lustration certificate, indicating that the person was an officer or a collaborator, entails the prohibition for this person to hold any of the protected positions. The certificate is issued, at the request of the candidate or the institution for which s/he wants to work, by the Ministry of Interior, after the consultation of the State Security Service files, which are nowadays administered by the Archive of Security Service under the Institute for the Study of Totalitarian Regimes. The personal statement is a unilateral act produced by the holder of the post or the candidate in which s/he declares that s/he was not a high official of the Communist Party, a member of the People´s Militias or a student of certain high schools. The requirement of producing the two documents only applies to those born after 1 December 1971. There is no exact data on the number of persons who have undergone the screening procedure. The estimates revolve around 400-500.000 persons, out of whom about 5% have been positively lustrated (and could not hold the public position).

Hungarian model is in fact some kind of light lustration; it was based on the exposure of compromised state officials; By the Act XXIII of 1994 on the screening of holders of important positions the Parliament set up screening commissions composed by judges to control the possible totalitarian activity of Members of the Parliament, officials appointed by the Parliament, ministers, state secretaries, judges, prosecutors, ambassadors, other high ranked civil or military officers and executives of companies if the State was their owner. If the commissions found that a screened person was contributor of the totalitarian regime, it called him/her to resign. If the contributor refused to resign, he/she could challenge the decision of the commission in a court. If the court agreed with the commission, the decision had to be published in the official journal. However, the decision had no binding effect, the contributor could keep his/her position, if he/she could face the pressure of the public opinion. They usually could. The commissions worked until the end of 2005. As another path to publicity the Parliament set up a specialised Archives for preservation and research of the documents which are still available and which have been not still classified. The Historical Archives of the State Security Services gives access to scientific researches. Persons observed by the communist state security agencies have access to the documents relating to them. The actual version of the Act III of 2003 provides the right to the observed individuals to get acknowledged with the name and other personal data of officers and contributors of the services, and make these data public. The system works, even if the documents are far from being complete.

I need to mention too. that all countries which have implemented lustration law have experienced the economic growth.

As I said in the beginning of my speech, Croatia doesn’t have Lustration Law, so it isn’t possible to have a trial against a person which is suspected of committing a criminal act, planning of a murder in this case which I’ll describe; trial was held in Munich, Germany, against Croatian citizens which were accused for planing of a murder of Croatian citizen which lived in Germany – according to territorial jurisdiction because a criminal act was committed in Germany. The verdict (non-final) was brought in August 2016. – life imprisonment. I think this is a problem because a trial wasn’t held in Croatia. Two German journalists (Frank Hofmann and Phillip Grunel) have made a documentary film named: „Murders in the name of Tito – Secret units of killers in Germany“ which was projected for the first time on the German television on September 30, 2014. It’s based on the true facts and researches of two journalists which are sure that Yugoslav secret agents killed 29 persons at least, Croatians which lived in Germany in exile and worked on demolition of the communist regime in ex Yugoslavia.