Lustration Laws in Action: The
Motives and Evaluation of
Lustration Policy in the Czech
Republic and Poland (1989-200 1)
Roman David
Lustration laws, which discharge the influence of old power structures
upon entering democracies, are considered the most controversial measure
of transitional justice. This article suggests that initial examinations of
lustrations have often overlooked the tremendous challenges faced by new
democracies. It identifies the motives behind the approval of two distinctive
lustration laws in the Czech Republic and Poland, examines their capacity
to meet their objectives, anddeterminesthe factors that influence theirperformance.
The comparison of the Czech semi-renibutive model with the Polish
semi-reconciliatory model suggests the relative success of the fonner within
afew yearsfollowingits approval. It concludes that a certain lustrationmodel
might be significantfor democratic consolidation in other transitional coun-
tries.
The Czech word lustrace and the Polish lustrucju have enlivened the
forgotten English term lustration,’ which is derived from the Latin term lusRomanDavid
is a postdoctoralfellow at the law school of the Universityof the Witwatersrand,Johannesburg,South
Africa (davidr@law.wits.ac.za;politologie@hotmail.com). The
original version of the paper was presented at “Law in Action,” the joint annual meeting of
the Law and Society Association and the Research Committee on the Sociology of Law,
Budapest,4-7 July 2001. The author thanks the University for providing support in writing
this paper; the Research Support Scheme, Prague (grant no. 1636/245/1998), for financing
the fieldwork;JenyOniszczukfromthe PolishConstitutional Tribunal for relevant legal materials;
and Christopher Roederer for his comments on the original version of the paper. A
special thanks goes to Susanne Yuk-ping Choi for her constant support and help.
1. Lustration has become a common term in Central and Eastern Europe and a scholarly
terminologyelsewhere.For example,a searchfor lustracja brought about 2,790 results, lustrace
2,190 results, and lwtration 4,010 results using the Google search engine (http://www.
google.com, 3 December 2001). Law d SocialInquiry devoted a special volume to the subject
(1995).
0 2003 American Bar Foundation.
0897-6546/03/2802-387$01.OO 387
388 LAW AND SOCIAL INQUIRY
tro. Lustro means “to review, survey, observe, examine” (Lewis and Short
1879).*In pre-1989 Czechoslovakia, its application usually referred to the
examination, conducted by the police for their own purposes, to determine
whether a person was registered in the secret police record^.^ After 1989,
lustrution has come to mean the examination of certain groups of people,
especiallypoliticians,public officials,and judges, to determine whether they
had been members or collaborators of the secret p ~ l i c e , ~or held any other
positions in the repressive apparatus of the totalitarian regime.
Lustrution law is a special public employment law that regulates the
process of examining whether a person holding certain higher public positions
worked or collaboratedwith the repressive apparatusof the communist
regime. The law defines who can/must be subjected to the examination,
who is in charge of the examination, how the lustration procedure works,
and the consequences of an eventual positive lustration. A finding of positive
lustration means the examination uncovers evidence that a person
worked for the repressive apparatus of the previous regime.
A remarkable number of studies and reports have been published since
the first lustration law was enacted in Czechoslovakia in 1991,5followed by
Lithuania in the same year, Bulgaria in 1992, Hungary in 1994,Albania in
1995, and Poland in 1997 (Kritz 1995; Constitution Watch 1992-2000).
Most of them evaluate the lustration laws from the perspective of human
rights standardsand reach very critical conclusions.For example, the Czech
lustration law was criticized by the International Labor Organization (ILO)
(Report of the Committee 1992),the ParliamentaryAssemblyof the Council
of Europe (Resolution 1096, 1996),and human rights organizations (e.g.,
Memorandum on the Applicability of International Agreements to the
2. The term has also another relevant meaning-to punh by means ofa propitiatory offering
orpurificationby sncrifice. When introducing lustration, some authors emphasize this meaning,
suggesting, e.g., “the purification of state organizations from their ‘sins’ under the
communist regimes”(Boed 1999,358).Some authors recognize the coincidence of both meanings
(Cepl 1992, 24-26).
3. The police term lustration referred to the process of inquiry directed to the statisticevidence
department to determine whether any data existed about a particular person. Such
inquiries were initiated by an operative or a leading member of the Corps of the National
Security (Zacek 2000,41). The data were gathered on individuals or groups considered inimical
to the socialist order by members or collaborators with the secret police. The files on
collaborators usually included their real as well as cover names, and a description of the way
the collaboration was launched, the information gathered, the assessment of their reliability
(which could lead to their promotion), and the reward they received. The information was
stored in files, microfiches and later in computer databases, and listed in a register of files.
Although in Czechoslovakia (and similarly in Poland) many files were destroyed, the register
of files remained untouched (Zacek 2000, 41-42).
4. In socialist Czechoslovakia, the name of the secret police was Statni bezpecnost (State
Security), or StB. In Poland, its name was Sluzba bezppieczenstwa (Security Service), or SB.
Other secret services existed in both countries (see part 2 of this article).
5. In 1990, the Czechoslovak Socialist Republic was renamed the Czech and Slovak
Federative Republic (CSFR). Since 1993, it split into two independent states, the Czech
Republic (CR) and the Slovak Republic (SR).
Lustration Laws in Action 389
Screening Law 1992). Nevertheless, these reviews were often abstract and
their authors did not pay adequate attention to the motives of lustration
laws, which stemmed from the complicated political and societal situation
in transitional countries. Recent research on the transition of totalitarian
power structures (Los and Zybertowicz 1999, 2000; Tucker 1999) indicates
that many of the criticisms against lustrations might be unwarranted, and
many critics underestimated or overlooked its legitimate aims, which can
justify a proportional encroachment of certain rights allowed by international
conventions.6
This paper evaluates the lustration laws from the perspective of their
aims. It consists of three major parts. The first part determines the motivation
for enacting lustration laws in Central and East European countries.
The identifiedlustration aimsprovide a normative frameworkfor the evaluation
of lustration laws and policies. The second part examines the lustration
laws, their scopesand procedures. The third part assesses how the identified
aims were incorporated into the laws and evaluates their impact. The final
part summarizes the lessons other emerging democraciescan learn from the
experiences of Central Europe.
This paper is based on analysis of the followingdocuments:the laws in
question,their constitutional reviews and related legal norms;parliamentary
debates, reports, and political statements; country reports, newspapers, and
magazines; and previously conducted opinion polls. Together they illustrate
the complexity of the problem, its eventual urgency, and the sociopolitical
contexts within which lustration laws were embedded. A systematicempirical
study of the working of lustration laws would be very difficult because
of the sensitivity and secrecy surrounding these processes. The presented
review of information, from various sources, points to certain plausible
mechanisms, tendencies, problems, and opinions without any claim to their
systematic, empirical ~erification.~
This article compares lustration policies in the Czech Republic and
Poland because a comparativeperspective enables us to better evaluate them
and determine the lustration law that has better fulfilled its expectations.
The Czech Republic and Poland are chosen because both countries deal
with the similar legacy of the communist regimes, but are influenced by
6. For example, art. 10 (2) of the (European) Convention for the Protection of Human
Rights and Fundamental Freedoms (4 November 1950, 213 U.N.T.S. 221) allows a proportional
limitation of the freedom of expression. Cf. arts. 8, 9, and 11.The European Court of
Human Rights usually determines whether an interference was prescribed by law, pursued
one or more defined legitimate aims, and was necessary in a democratic society to attain
them. See also supra note 16. Cf. supra note 90.
7. The author thanks one of the reviewersfor this comment. In the followingtext, several
abbreviations, which originate in Czech and Polish languages, are used to describe these resources:
CTK-Czech Press Agency, PAP-Polish Press Agency; CBOS-( Polish) Center
for Public Opinion Research; IVVM-( Czech) Institute for PubJicOpinion Research; Dz.u.(Polish)
gazette of laws; Sb.-(Czech) collection of laws; P1. US-Judgment of the Plenum
of the Czech/Czechoslovak Constitutional Court.
390 LAW AND SOCIAL INQUIRY
quite contrary political circumstances in their transition to democracy. As
a result, they have developed distinctive models of lustration laws.
Poland was the first country in the region to overthrow communism,
but the last to approvea lustration law.’ The Polish transition was negotiated
through round table talks in February, March, and April 1989.At that time,
still-confident communists conceded only semi-democraticelections, making
35% of the seats in the Sejm (the Lower Chamber; the power of the
then-established Senate was marginal) available. Although Tadeusz
Mazowieckiwas appointed the first noncommunist prime minister after the
sweeping “victory”of Solidarity in the election held in June 1989,General
Czeslaw Kiszczak remained the minister of the interior until July 1990,and
General Wojciech Jaruzelskioccupied the Polish presidency until December
1990.The cleavages among noncommunist political parties elected in 1991
did not provide majority conditions for the approval of the lustration law.
In fact, the lustration debate in 1992 led to the fall of the government of
Jan Olszewski.The Democratic Left Alliance (SLD),which was dominated
by former communists,won the 1993elections and was against lustra ti on^.^
The Polish lustration law was passed after the victory of the center-right
parties in 1997. However, it was not implemented until 1999.’’
Czechoslovakiawas one of the last countries in the region to overthrow
communism,but the firstone to enact a lustration law. Faced with unexpectedly
massivedemonstrations and the collapseof communism in neighboring
countries, the Communist Party gave up its power in November 1989.The
Velvet Revolution led to the establishment of the government of the national
understanding. Members of this political coalition were mostly nominated
by the then-formed opposition political movement, Civic Forum
(OF),although a few of them, including Prime Minister Marian Calfa, were
initially communists. The center-right factions of the Forum, which gradually
established political parties, were able to gather majority support for
the lustration bill. These parties have maintained their control over the
Parliament since then.” These conditions explain why, in contrast with
~~
8. The following discussion does not aim to provide readers with a detailed account of
the transition processes, which are discussed in other materials (e.g., Pehe 1991; Kritz 1995,
2533-68; Los 1995; Misztal 1999; Kauba 2002; Constitution Watch 1992-2002).
9. The left coalition approved an anti-lustration public employment law (act from 5 July
1996on Civil Service, Dz.U.96.89.402). Art. 28 (1) 1required seven years of relevant working
experience for senior public posts, making them available solely for old communist cadres.
10. The coalition dominated by the former communist SLD won the 2001 elections in
Poland. This led to the 2002 amendment of the lustration law, which narrowed its scope and
modified its procedure. After the Constitutional Tribunal abrogated this amendment, the
coalition pushed through the Parliament another amendment in September of the same year,
which is also expected to be challenged at the Tribunal (see note 55). This article only
evaluates the lustration policies in both countries to the end of 2001.
11. In the 1996 elections, the center-right parties initially won merely 99 of 200 seats
but they were “tolerated” by the social democrats and soon “gained”one of its deputies. They
had majority in the Parliament even during the minority government of the social democracy
(1998-2002).
Lustration Laws in Action 391
Poland, Czechoslovakia was able to approve a lustration law shortly after
the breakdown of communism.
The lengthy, unregulated, wild lustration stage in Poland (1989-99)
had a significant impact on the character of the law and the needs that it
attempted to meet. On the one hand, the period offered Poland time to
learn from the experiencesof other countries and from international criticisms
against them. On the other hand, the time gap may have given the
power networks, which the law was supposed to neutralize, an opportunity
to influence the preparation of the bill. As a result of these contrary tendencies,
the Polish lustration law has a complex procedure, narrow scope, and
minimal sanctions. This contrasts with the broader and more simplistic
Czech lustration law, which is based on the disqualification of formerpolitical
elite and security networks from leading public posts.
This brief summary highlights how the power distribution at the time
of regime changes (Zalaquett 1992),the political ideology of the ruling majority
(Los 1995, 156-61), and the situation in neighboringcountries (PionBerlin
1994, 123)12influenced the policy of dealing with the past.
I. THE AIMS OF LUSTRATIONS
The evaluation of the lustration policies is pursued via the outcome
model that determines the extent to which the policies have achieved their
formal as well as informal ends.13This model presupposes the identification
of the aims as criteria for the evaluation and requires an analysis of the
relationships between aims, which may overlap, condition, or contradict
one another. It also considers changes in the intensity of these aims over
time, the processes of their achievement, and various external factors that
determine the outcomes. In addition to the formal aims that are articulated
in legal and political materials,such as preambles to the laws, parliamentary
debates, political resolutions, and other official statements, which express
the views of political majority, the model takes into account unofficial goals,
which may be highlighted by the critics of the process.14
12. Based on the comparison of transition in Argentina, Chile, and Uruguay, Pion-Berlin
(1994, 126) concludes that this “contagion effect” has a weak to moderate influence.
13. This model expands the classic evaluation goal model (Rutman 1977) by paying
attention to the unofficial aims and to dynamic relationships among aims (Chen 1990,167-
90). A notable attempt to adopt the classic model to evaluate Czech lustrations was pursued
by Williams (1999).
14. One reviewer pointed to the perils of the evaluation: “One might imagine a weak
lustration that is shaped by powerful forces from the Communist-era regime who succeed in
largely muzzling the inquiry into the past. Such a lustration would then ‘succeed’wonderfully
if it lives up to its artificially and endogenously limited goals.” I do not share this view. The
aims, which are derived from the arguments of a political minority and, in this case, are
congruent with other research, sufficientlycomplement official/endogenous goals. Generating
these aims from the opinions of individual deputies among both supporters and opponents
also minimizes the chance of limiting the aims to those desired by powerful communist-era
forces. Although the reviewer does not suggest any alternative framework, a model that is
392 LAW AND SOCIAL INQUIRY
TABLE 1
Lustration Motives Raised in Parliamentary Debates
Czechoslovakia* Poland**
(% of the 72 deputies
who approved the motives
(Yo of 100pro-lustration
arguments that
Aim of Lustrations in their speech) included the motives)
Personnel discontinuity and 50
minimal justice
safety
lation by law
National security and public 21
Protection of rights and regu- 14
Truth revelation 14
Protection of territorial inte- 3
Trust 3
grity
16
52
not available
20
not available
not available
SOURCES:* Federal Assembly of CSFR 1991, 17th sess.; ** Los 1995, 144, 146, and 148.
Analyzing the lustration debate in the Polish Senate, Maria Los (1995,
143-54) identified three affirmative lustration discourses that reflected the
three main pro-lustration themes: historical truth, minimal justice, and state
~ecurity.’~The analysis of the lustration debate in the CzechoslovakFederal
Assembly (17th sess. 1991) has confirmed the relevance of these goals. It
also identified another three aims: “the protection of rights and the need
to regulate the process by law,” “territorial integrity,’’and “trust.”16Table 1
summarizesthe frequencies of these arguments in the Czech and Polish lustration
debates.
Historical experience may explain the differentpriorities of Czechoslovak
and Polish parliamentarians. After the breakdown of communism in
Czechoslovakia,personnel changes were demandedpartly in response to the
massivepurges conducted by the regime after 1948and 1968.These changes
symbolized the element of minimal justice (see note 15 and part 1A). In
independent of the endogenous political process would face the risk that it tests the law
against aims that are irrelevant. A pure theory-based frameworkcould perpetuate shared presumptions,
which have been, in the case of lustration, rather distorted.
15. Historical truth concerns the “need to reconstruct what really happened, the prevention
of a ‘fabrication of history,’and the moral conceptualization of responsibility” (Los 1995,
143).According to minimal justice discourse,“[l]ustration is rarely seen as capable of achieving
full-scale ‘historical’ justice . . . it simply makes places at the top inaccessible to those
who contributed to the former apparatus of coercion” (1995, 146). State security concerned
the perils of not carrying lustration out. “The perils are connected with having undisclosed
(former) collaborators in positions of authority, when their past may still hold power over
them” (1995, 148).
16. These aims fall within the legitimate aims as recognized by the European jurisprudence
(Glasenappv. Germany 1986; Lander pi. Sweden 1987; Vogt v. Germany 1995; Ahmd
v. United Kingdom 1998;cf. note 6).
Lustration Laws in Action 393
contrast, the emphasis on security motives of Polish senators reflects the
experienceof the country, whose geopoliticalposition between Russian and
German empires exposed her to numerous devastating invasions. Another
concern of Polish senatorswas related to the increase of crime during transition,
some of which was perpetrated by former security operatives, and the
dramatic increase of its media coverage, which created feelings of threat in
~ociety.‘~
Naturally, many deputies did not sign up for any of these aims brought
by lustration supporters.They had different personal experiencesin the past,
with competing political interests in the processes of transition, and thus,
followedconflicting ideologies, which mobilized or served various segments
of the electorate. They also had different perspectives on new human rights
violations and considered the attitude of the international community toward
the process differently.
It seems that the vital political interest of advocates of the lustration
law was to gain control over the state apparatus,whereas many of its opponents
sought to preserve the old networks and maximize their social capital.
Some lustration supporters tried to cover their realpolitik intentions under
the veil of morality, whereas lustration opponents considered the law immoral.The
central ideologicalbattle was to gain control over the perception
of the past:Opponentswanted to preserve a good picture of the past,conceding
a few unfortunate aberrations,whereas advocatessought value discontinuity
with the communist system. The dispute over human rights was
whether the law protected or violated human rights. For example, proponents
argued for the right of the previously disadvantaged to just remedy,
whereas opponents alleged that lustration laws violated the right to association
of formercommunist leaders. According to them, the law would cause
the international isolation of the country because of its encroachment of
human rights standards.On the other hand, advocatesargued that the international
community would not isolate the new democracy because the law
actually protected human rights.
The analysis of the Czechoslovak lustration debate shows that human
rights violationswere the most frequently used argument against lustrations,
followed by vengeance and political rivalry. This confirms fairly common
reservations against the process among scholars.”
This paper evaluatesthe lustration laws according to the five identified
aims: “personneldiscontinuity and minimal justice,”“national security and
17. “Poland’s private security sector seems to have played two decisive roles: first by
producing and increasing risks, and then by creating a new demand for market-based means
to govern those same risks” (Los 2001).
18. For example, Schwartz states that “Revenge seems to be a primary goal of much of
the lustration legislation” (quoted in Kritz 1995,1474;cf.464,469). Los describes a dystopian
discourse that claims that “the whole process of lustration [is] being used against political
opponents in ugly power struggles” (1995, 129; cf. 154-55).
394 LAW AND SOCIAL INQUIRY
TABLE 2
Major Arguments Against Lustration During Czechoslovak Parliamentary
Debate
Deputies Making this Deputies Denying
Anti-lustration Argument Argument (%) this Charge (%)
Human rights violations
Vengeance
Political rivalry
15
12.5
4
5.5
11
0
SOURCEFederal Assembly of CSFR 1991, 17th sess.
public safety,”“the protection of rights and the need for legal regulation of
the process,”and “truth revelation.” Moreover, it examineswhether and to
what extent the law constitutes vengeanceas alleged by its opponents. This
paper does not review the lustration laws from the perspective of human
rights. The allegationsof human rights violations are evaluated in a separate
paper (David 2002a).
A. Minimal Justice: Personnel Discontinuity with the Totalitarian
Apparatus
Although a legitimate parliament was established and a new govemment
appointed after the first free elections, the state apparatus remained
to a large extent unchanged. Ten months after the Velvet Revolution,
Czechoslovak President Vaclav Have1 made this announcement:
We had free elections, ...we elected a free parliament, we have a free
press, we have a democratic government. Yet . ..[tlhere still exist and
work the powerful structuresof the former regime. ...Many places are
governedby the samepeople as before.They are connected to managers
of industrial enterprises. There exist immense bureaucratic colossuses
that preclude rational economic behavior of individual enterprises and
firms. The old bureaucracy persists at all levels. (1990b)
According to a poll conducted in 1991, 50% of Czechoslovak respondents
considered the lustration act would be beneficial to personnel situations
in enterprises and state offices (IVVM 2000).
Similarly in Poland,formercommunistnomenklat~ra’~remained in con-
19. According to Los, nomeklatura is “a secret list of these important positions at all
levels of the economic and state administrations, and all other areas of institutional life,
which are formally reserved for loyal party members” (1988, 147). In its common use, this
term refers to the elite stratum formed on this basis.
Lustration Laws in Action 395
trol in both formal and informal ways. Approximately one-quarter of them
occupied senior public posts in the mid-1990s (Wasilewski 1995,quoted in
Los and Zybertowicz 1999,285), while the majority of cadres capitalized on
their positions during the privatization process (Los and Zybertowicz 2000,
111-13). Another survey, conducted among Polish business, political, and
administrative elite in 1998,one year after the electoral defeat of the postcommunist
SLD and one year before the Polish lustration law came into
effect, confirmed that no single group could be characterized as being dominated
by former anticommunist opposition and that the thesis about the
origin of the business elite in the communist world is well founded (Wasilewski
2000, 206-7). In view of the continuing dominance of the old networks,
it was not surprisingthat in 1996,57%of Poles considered lustrations
as necessary, while 24% opposed it (CBOS 1997).
The inherited apparatus was perceived as an inimical element in the
new democracy because its positions were filled on the basis of the unfair
ideologicalcriteria of the previous regime, such as “politicalmaturity, a creative
Marxist-Leninistapproach to the solution of problems, and the determination
to consistently bring the party’s policies to life” (Cadre Orders
1984).Thus, one of the legislature’spost-1989objectiveswas to accomplish
a form of redress, to provide opportunities for those who were previously
excluded from offices because of political reasons.*’This embodied an element
of minimal justice. It was not a full-scaleor criminal justice that would
bring all of those who were responsible for communist crimes to the court.
Yet it did not perpetuate and legitimize past injustices because it denounced
the selection criteria of the past. In addition, the urgent task was to remove
nomenklatura officials and secret police officers because of their characteristics
and networks.
A totalitarian societyorganized as a military unit demandedsubmissiveness
and obedience. On the other hand, liberal democracy requires efficient
management and responsibility.” Sound political and economicreformscan
only be accomplished through the transition of peoples’ value systems. The
largely incompetent and corrupted totalitarian bureaucracy could obstruct
the implementation of governmental policies of societaltransformation. Indeed,
technical incompetence led to the removal of many cadres from the
former East German public administration (Teitel 2000, 165).
More important, lawmakerswere awareof the gross human rights violations
perpetrated by the old repressive apparatus. Therefore, they assert, key
democratic positions should not be held by “citizens previously involved
20. Accordingto DeputyJ. Schneider (1991), it was necessary “tofulfillpositiveprerequisites.
. .because those who are not affected by the act have a handicap from the past-they
did not have access to the [positions].”
21. According to Cepl and Gillis (1996, 123), “What Eastern Europe needs now is not
disciplined,obedient apparatchiki,but innovators,entrepreneurs,stubborn,free-minded,even
unmanageable people.”
396 LAW AND SOCIAL INQUIRY
in activities of the organs and organizations, which consciously suppressed
democracy and human rights” (Kopriva 1991).The deputies wanted to prevent
the abuseof power that was typical of the communistsystem in Czechoslovakia”
as well as in Poland.23
The criminal activities of the former communist nomenklatura and the
secret police members did not cease with the fall of communism. On the
contrary, their networks spanning administrative and business sector were
at the center of various illegal activities during the reform period.
[Whenever there is an extremely rapid multiplication of capital ... ,
we find, in the background, people from the former nomenklatura, including
Special Services. Their connections; access to difficult-to-obtain
information (for instance, in cases of tender bidding); expertise in
acting both on the margins of law and outside of it; the ability to infiltrate
the agencies that constitute the infrastructurefor economic activity-these
are real assets. (Zybertowicz 1993, 121,quoted in Los 1995,
151)
Breaking the old networks was an urgent task if economic reforms
were to be implemented in many Central and East European countries (e.g.,
Hum1 1991).The economic issues were the significant motivation for lustration
in Czechoslovakia, Hungary, Lithuania, and Poland “after the nomenklatura
took advantage of the absence of the rule of law and its preferred
position to steal massively and moved its gains to western banks” (Tucker
1999, 70).
The enactment of a special public employment law was necessary because
people holding important public positions usually did not want to
leave, and their dismissalswere almost impossible under the inherited communist
employment law. Unlike in Poland, where initial personnel changes
were subjected to round table negotiations, Czechoslovak “revolutionaries”
expected former members of the old regime to leave voluntarily. However,
they were soon disappointed, realizing that their policy of unconditional
forgivenesswas unrealistic and that members of the former repressive apparatus
did not want to depart their posts.
22. During the communist rule, about 250 people were judicially executed because of
political reasons and about 6-8,000 people died under unclear circumstances (e.g., shot during
attempts to escape,shot at the state border, died probably as a consequence of torture) (Stehlik
2000). The communist judiciary condemned at least a quarter million people for political
reasons (Koudelka et al. 1993).
23. Between 1945 and 1956, about 200,000people were imprisoned for political reasons;
26,000 people died in prisons, many of them political prisoners. At least 3,000 people were
judicially executed for political reasons; thousands were executed extrajudicially; between
1945 and 1948, 8,700 people were killed. Many people were shot during demonstrations,
hundreds were injured. During martial law, between 1981 and 1983 about 200 people were
killed (Kobos 1999).
Lustration Laws in Action 397
It is still officially impossible to dismiss someone because of being an
agent of StB. They know it and although in the beginning [some of
them] left, being happy that they had got a more than gentle chance
to disappearquietly,they have started to make obstructions. [The state]
cannot publicize who was lustrated positively because it would otherwise
violate a law on confidential information. . . . According to [a
high State official], “in some cases people would be sick if they knew
[the content of their files].” (Janyska 1991)24
Thus, two contradictory interpretations of the ‘Velvet Revolution”coexisted:
The new elite sought a peaceful change, and the old elite wanted
to preserve its status. Deputy Mlynarik, a Slovak historian, aptly pointed
out:
It was certainly right that we implemented the principle “we are not
like them,” that we refrained from witch-hunt, from vengeance, but
we underestimatedour rival. He interpreted the generosityand decency
in his own term and he used his unbroken and partly kept positions to
the destruction and destabilizationof our democratic efforts. (Mlynarik
1991)25
As a result, the pressurefor changes and the effortto preservethe status
quo were combined: formernomenklatura cadres mutually switched their positions
at different levels of society. This was called “the rotation of cadres’’
(Kriz 1991). Therefore, for some deputies the lustration act was essentially
a second revolution, which President Have1mentioned on 21 August 1990
(Kvasnicka 1991).Hence, the law reflected the congested political situation
following the fall of communism and the concrete activities of the former
networks in both countries. It was a response to certain defective features
of the transition rather than to the totalitarian regime; it was a response to
the present activities of the past networks. It reflected frustration of the new
elite by its nai’ve belief in the improvement of human nature and in the
methnoia of formeroppressorsonce confiningexternal factors of the regime
had disappeared.
24. Similarly, a deputy complained: “[Wle could not get rid of the head of the international
department [of the Federal Assembly], who was proved to he a [former] member of
[the communist1 intelligence and . .. [the speaker] Mr. Dubcek took him for international
visits. For example, our American counterpart alerted us that it did not contribute to the
honor of our State when such a person accompanied the speaker of the highest legislative
assembly” (Kulan 1991a).
25. Similar disappointment was expressed in the speeches of 10 deputies. For example,
according to deputy Benda, “We are on the very complicated way from the totalitarian regime
to democracy. . . .The way IS not irreversible and it is far from its accomplishment. In this
situation we cannot afford that representatives who without any doubt participated in crimes
of the communist party . . . will continue their conspiracy against the democratic regime.
. . . We gave them the opportunity [to leave], there was more or less a silence about these
things within the first year after November [1989] and the results are catastrophic and we
can see them everywhere around us” (1991a).
398 LAW AND SOCIAL INQUIRY
B. The Protection of Rights and the Need for Legal Regulation of
the Process
While some parts of the transitional societiesremained untouched, arbitrary
lustrations were carried out almost without any rules in other parts.
In Poland, “specializedlists [of secret collaborators] for different professional
groups have been prepared in a totally uncontrolled fashion” (Los 1995,
131). In Czechoslovakia, people working in different state bodies were lustrated
arbitrarilyand often without their consent. For example,the Minister
of Foreign AffairsJiri Dienstbier ordered “all the [ministry]employees,from
car drivers up to the Minister to be lustrated in September [1990]”(Janyska
1991).26In 1990,Petr Uhl, the then head of the CzechoslovakPress Agency,
forced 23 positively lustrated secret police agents to leave their posts: “I
sharpened the situation, I literally blackmailed them. Either they leave voluntarily
and nobody will know anything, or we will call a meeting in their
departments and I will confront them [about their past]’’ (Necas 1990).”
Such arbitrarinessviolates the principle of the rule of law that prohibits the
discretion of power (Dicey 1959, 188)and would not be possible under the
Czech lustration act. In order to avoid such a witch-hunt, a law would have
to prescribe what parts of the repressive apparatus and which democratic
positions are subjected to lustrations. It was considered necessary to authorize
a body responsible for lustrations, to set the lustration procedure, and
to ensure its judicial review in order to protect lustrated persons (statement
of eight opposition groups 1991, quoted in Zacek 2000, 48-49).
The law was also supposed to calm down the tempestuous political
situation (Fisera 1991) caused by mutual denunciation of competing politicians.
A number of lustration scandals were reported in each of the Central
European countries before the law was enacted. In Slovakia, one “political
leader, Jan Carnogursky, has accused another, Vladimir Meciar, of cooperating
with the secret police, and [. . . ] Meciar has accused Carnogursky
of the same thing” (Michnik and Have1 1993). In Czechoslovakia, the
Czech Prime Minister Petr Pithart forced a member of his government,
Minister of Environment Bedrich Moldan, to resign since he was registered
in the secret police records as a candidate of secret collaboration (Blazek
1991).
Unregulated lustrations virtually destabilized the government in Poland.
On 28 May 1992, Sejm passed a resolution that obliged the minister
of the interior to reveal the names of members of Parliament and high state
officials who collaborated with secret services during the period of 1944-
90 (Kauba 2002). Pursuant to the resolution, the then Minister of the Inte~
~~
26. “Among all diplomats, it was found 50 [secret] agents, among them six ambassadors”
27. P. Uhl later led a group of 99 deputies to challenge the lustration act at the Constitu(Janyska
1991).
tional Court (PI. US 1/92) and became one of the strongest opponents of lustrations.
Lustration Laws in Action 399
rior Antoni Macierewiczdelivereda list of 64names of collaborators,mostly
fromthe formerdemocraticopposition,to the Sejm (Bachmann 1996).After
severalhours of heated debate, the chamber passed a vote of no confidence
against the government of Jan Olszewski. In 1996, in another grand-scale
scandal in Poland, President Lech Walesa accused the then Prime Minister
JozefOleksy of collaboration with the Soviet KGB and the Russian intelligence,
and his allegations subsequently led to Oleksy’sresignation (Misztal
1999, 42; Kublik, Popek, and Szulc 1996).
If Meciar, Moldan, and Oleksy had contact with the secret services,
some questionsremained unanswered.What was the nature of the contacts?
Were they personally involved in secret activities?Were they only considered
suitable candidates to be recruited for secret collaboration? The term
collaborationcan be ambiguous. Intellectuals often mention V. Havel’s attitude
on this point: “[wle are all-though naturally to differing extentsresponsible
for the operation of the totalitarian machinery. None of us is
just its victim. We are all also its co-creators” (Have1 1990a). Although
there might be a continuum on the scale of responsibility between victims
and perpetrators, it does not mean that value judgments cannot be made.
Every continuum has its extremes. This implies, for instance, that victims
should be compensated and perpetrators punished.*’It is certainly possible,
although not easy, to distinguishsystematiccollaboration from passive nonresistance
(Gebethner 2000).29Since the question is essentialto the process
of transformation, it was needed to reach consensus on the legal definition
of collaboration, guilt, and responsibility.
The experience of the studied countries shows that addressing these
problemscan hardly be avoided.The prohibition of lustra ti on^^^ could eliminate
the discretion of power, but this prohibition could also deepen unsubstantiated
gossip and false accusations, leaving people without a chance to
defend themselves. As the former Polish President Lech Walesa (1997)
stated a “human being is defenselessagainst defamation. . . .The defamed
person doesnot have any chance to clear himself from suspicions.”Unfortunately,
such denunciations gradually spread into local politics. In his open
letter to the prime minister, one man described his experience this way:
28. Relativization,as in “weare all guilty,”is close to the infamousstatement that Jews
were responsiblefor the holocaust (Ross, quoted in Los 1995, 143).
29. For example, Czechoslovakshad difficulty judging the “gray”categoryof “candidates
of secret collaboration,”which included Minister Moldan. The category was later included
ip the lustration law but it was subsequently invalidated by the Constitutional Court (Pl.
US 1/92; see also note 44). The definition of collaboration was also a problem in Poland,
where it was substantially narrowed in both 2002 amendments (see notes 10 and 55).
30. In Czechoslovakia,lustrations were repeatedly prohibited, then permitted, required
by one state branch and refused by another (Cf. Jicin 1990;Janyska 1990). In Poland, the
government of Waldemar Pawlak responded to the instability following the publication of
the “Macierewicz’sblacklist”in the sameway as the Czechoslovakone. After the appointment
of Andrzej Milczanowski as minister of the interior, access to secret files was forbidden(Bachmann
1996).
400 LAW AND SOCIAL INQUIRY
I was a cofounderof [the local branch ofl the Civil Forum and I became
its spokesman. It was perhaps the reason why the chairpersonof a cooperative
[where I worked] ...and other. ..[membersof the Communist
Party] started to gossip that I was an agent and a confidant of the StB.
I launched a suit. ...I was asked to prove that I was not a collaborator
of the StB. . . . [However] I cannot be lustrated because lustrations
were prohibited by the [Federal] Government. (Jelinek 1991, 7)
The new political elite faced the dilemma: Not carrying lustrations out
may solve some problems but deepen others. The continuing scandals in
Poland indicated that the problem of collaboration would not disappear. In
total, at least three Polish prime ministers, including Oleksy, Cimoszewicz,
and Buzek, and two presidents, Lech Walesa and Aleksander Kwasniewski,
were publicly denounced. The issue will come back, until it is resolved, said
Vice-premier Janusz Tomaszewski (Olszewski 1996),one of those who was
later accused of collaboration. As a German commentator pointed out, East
Germany “chose a horror ending-lustrations, opening files. . . . Poland
chose a horror without an end and therefore the secretpolice fileswill create
fear for many years” (Bachmann 2000).
C. The Protection of National Security and Public Safety
Concerns about the protection of newly gained democracyand the irreversibility
of transition had domestic and international dimensions. At the
domestic level, the danger was related to the subversive activities of the
formerpower elite. On 28 November 1989,one day after the general strike,
which was the peak of the Velvet Revolution, the head of the then Czechoslovak
StB,General Alojz Lorenz, issued instructions for a conspiracy in the
new situation, titled “on the activities of counter-intelligence to solve the
social crisis by the use of political means,” which included tasks such as
the following:
To target actively the misinformation of the enemy, to discredit the
most radical representativesof these structuresin the eyesof the public,
to make deeper ideological,personal,and action cleavagesamong these
groups. To gain immediately a quality agency power in the mass media
...for the benefit of the Communist Party of Czechoslovakia. (Directive
no. CB 002040/003-89, 1989,quoted in Bacinsky 1991)
It seems that the activities of many former secret policemen complied
with the instructions. The old security staff remained in control of the
Czechoslovak Ministry of the Interior (Hromadko 1990, 3), and they had
unlimited access to the secret files for a few weeks after the Velvet Revolution
(J.S. 1990, 2; Report of the Parliamentary Commission 1991). Subse-
Lustration Laws in Action 401
quently, ignored by new government members, they destroyed some files
(Spumy 1990,3).It was also suspected that they copied some files for their
futureuse, carried out wild lustrationsof democraticpoliticians (Zacek 2000,
43-46), and utilized their positions at the Ministry of the Interior to influence
key security appointments. The rotation of the nomenklatura cadres
had also its parallel in the security sphere:
In March 1990 . . . new personnel changes were launched in Slovakia.
...Unfortunately, in somecases [officeswere staffed]with former
StBemployees. ...A former head of the Central Control and Revision
Commission [of the Slovak Communist Party]was appointed the chief
of the Kosice’s [police branch]. . . . A regional deputy of the StB in
Kosice . . . was appointed the chief of a district [police branch] in
Michalovce by [the Slovak] Minister [of the Interior] Meciar. (Kulan
1991b)
Although one can only speculate about their objectives, the activities
of former networks posed a threat to democratictransition in both countries.
They did not confine themselves to the security sector but spanned public
administration, public media and state enterprises.About 262 secret agents
kept or gained positions in the Czechoslovak media (Mlynar 1992, 3). For
instance, in 1990 “the newspaper Narodna obroda was founded, which was
subsidized by the Slovak government. Its dominant person was Igor Cibula,
previously an officer of the StB with a special training for misinformation,
[later]the head of the [public] Slovak Press Agency” (Kulan 1991b).
Thus, Stefan Bacinsky (1991), the then director of the Czechoslovak
new security service, summarized: “networksthat destabilizeall the spheres
of our public life are everywhere.On the television, on the radio, in printed
media, in the public administration and the self-government,in enterprises
and also trade unions.” While debating a disqualification of these people
from senior public offices, Mr. Bacinsky added that they “certainlyhave the
right to go with us to build the democratic society. But I am convinced that
they should not lead us.”
The situation in Poland was very similar to that in Czechoslovakia,
however, with one remarkable difference: It lasted almost 10 years. Former
members of the security services who were trained in covert activities, infiltration,
bribing, misinformation, blackmail, threats, and so on remained
connected to all levels of power within the postcommunist state; they operated
on an informal basis as networks or, formally,as private security agencies
(Los and Zybertowicz 1999, 284). Many of them found employment in
the police and in the Office for the Protection of State (UOP) (Los 1995,
122-23). They were associatedwith many unfortunate decisionsof the state
organs (see, e.g., Los and Zybertowicz 2000, 179-84). The experience of
both countries suggestedthat mere structural changes that were not accom-
402 LAW AND SOCIAL INQUIRY
panied by a special personnel policy were inefficient and allowed the old
networks to permeate new democratic institutions (seeLos and Zybertowicz
2000, 219).
The old networks may not have necessarilybeen the active element of
subversion.The legislaturesof both countries also sought to avoid blackmail
against public officials that could spread during the transition. Those who,
as membersor collaboratorsof the secretpolice,had informedon their fellow
citizenswere very vulnerable in this respect. Also vulnerableto blackmailing
were those who may have been involved in as yet unreported criminal activities
of the secret police and communist nomenklatura that were typical in
regimes lacking the rule of law. According to the Czechoslovak Parliamentary
Commission of 17 November (1991), the “only way to prevent blackmail,
the continued activity of StB collaborators, and a series of political
scandals that could surface at crucial moments is to clear the government
and legislative bodies of these collaborators.” Similarly, the then Federal
Vice-Minister of the Interior, Jan Rum1 (1990),suggestively asked:
[I]f the KGB has the [copies of Czechoslovak secret police] files, it can
blackmail whenever it wants. Can anyone who can be blackmailed be
a representative at any level?There is a parallel here with the situation
in Czechoslovakia after the war. Lists of Gestapo collaborators were
given to the communistpolice. Hence, it was the beginning of its enormous
power, which depended also on blackmail.
The probability that the KGB possessed copies of the files from East
Bloc countries was quite high. Soviet “advisors”were traditionally present
at the Czechoslovakas well as Polish Ministry of the Interior (Kaplan 1999,
25-26; Groblewski 1999;Andrew and Mitrokhin 2000).31However, secret
materials could be in possession of various people because many documents
went missing.32For example, a few days after the semi-democraticelections
in Poland in 1989, General Henryk Dankowski issued an order to locate
the files of those members of Parliament who had previously been secret
collaborators in a new cataloguecalled “Zbior560”; sinceJanuary 1990,the
catalogue has been “missing” (Woyciechowski 1997).
The affiliation with the repressive apparatus was used as a means to
blackmail, for example, by the Slovak leader Vladimir Meciar. He several
times publicly mentioned that he had just found the secret police’s files of
31. “[Sovietadvisors]worked in all of the Soviet bloc countries. .. . In Czechoslovakia,
all of the important findings and investigation protocols were translated into Russian and
sent to Moscow. The Moscow center sent instructions, recommendations and .. .questions
to the main advisor at the Ministry in Prague” (Kaplan 1999,25-26).
32. For example, there was a “cleaning”of secret archives at the Polish Ministry of the
Interior, which took place until 1991 (Grocki 1992, 23, quoted in Los 1995, 136).
Lustration Laws in Action 403
various people on his table (Mlynarik 1991;Kulan 1991b).33He then used
the materials in a successfulbid to become the head of the ruling movement
in Slovakia,Public Against Violence (VPN),and eventually the prime minister
of Czechoslovakia’s Slovak Republic in June 1990 (Naegele 1999).
Internationally, the experience of the Soviet imperialist politics in
Central Europe was still alive. Soviets invaded Hungary in 1956 and
Czechoslovakia in 1968, and they threatened to intervene in Poland at the
beginning of the 1980s. The Czechoslovak lustration act was passed six
weeks after the attempted 1991 coup d’etat in the USSR that resurrected
the activitiesof former collaboratorsin Czechoslovakia (Kulan 1991b).34At
that time, also, 300,000Soviet troops were still deployed in the territory of
former East Germany (Spurny 1991).35
Today Russia still perceives Central Europe as a sphere of its power
interests,and the potential threat of Russiahas not vanished,although there
is no actual danger of another invasion. Russia repeatedly made verbal
threats to Central European countries that sought to join NATO (see, e.g.,
Czech Republic in NATO 1999). According to the Czech Security and
InformationService(BIS),Russian informationserviceswere alwaysconsidered
an important tool of Russian foreign policy. “Thepolicy was characterized
by its effort for preserving Russian influence in most countries of the
former USSR and the Warsaw Pact. . . .They have sought to gain or to
keep economic influence”(Cinnost zpravodajskych sluzeb SNS 1998-99).
Central European countries were conscious of the election of the former
East-Germany-based KGB officer Vladimir Putin as Russian President in
March 2000 (Vladimir Putin Bio 2002).
Nevertheless, former Soviet satellites were not merely passive victims
in the international arena. They, especially Czechoslovakia, provided military
support to many terrorist regimes and organizations in the past.36The
international contacts of the old networks may provide terrorists with relatively
easy access to weapons, technology of their production, intelligence,
money laundering, and hence, constitute security risk at the international
level.
These security concerns reveal that lustration laws may not be merely
33. A possible explanation of these mysterious findings might be the fact that after his
appointment as the first non-communist Slovak Minister of Interior in January 1990,Meciar
led a night-time police raid of the secret police archives, allegedly taking his own file and
the files of his political rivals (Naegele 1999).
34. This concern was expressed in the speeches of four deputies.
35. According to the then Czechoslovak Vice-Minister of the Interior, Jan Ruml, “We
knew that Soviet troops explored [Czechoslovak]border with theformer East Germany. There
was [also]a concentration of the Soviet border forces at [Czechoslovak]border with the USSR,
which can mean whatever” (Spurny 1991).
36. Communist “Czechoslovakia was one of the largest arms producers and dealers in
the world . .. [and] a principal arms supplier to areas of Cold War conflict, including Iraq,
Ethiopia, Syria, Sudan, Algeria, India, and Vietnam. The Czechs were also a favored supplier
to numerous terrorist organizations” (Jordan 2002, citation omitted).
404 LAW AND SOCIAL INQUIRY
short-term transitional provisions designed to stabilizenew democracy. Although
domestic security risks have been declining, they have not entirely
vanished. Internationally, NATO membership has changed the security
concerns in Central European countries. The present problem is preventing
the old networks from having access to classified NATO materials and to
continuing arms trade.
D, Disclosure of the Truth about the Past
Learning the truth about the past seems to be a powerful idea in many
transitional demo~racies.~~People desire to know the information that was
not accessible to them under the regime, which kept a monopoly on truth
and used censorship,misinformationand the secretpolice. Immediatelyafter
the fall of communism,people could learn a good deal about human rights
violations, border killings, torture, and concentration camps. Many victims
shared their personal stories in newspapers, on television and radio. However,
materials that were collected about them and their relatives by former
cadresand securityorgansremained secret.The interest in learning the truth
led to the requirement to open the archives and publicize the list of those
who had gathered information and reported about them.
However, new Czechoslovakand Polish governmentsprohibited access
to the secret police archives, and meetings of relevant inquiry commissions
were also closed (Jelinek 1991; Bachmann 1996). On the perpetuation of
the secrecy, a journalist who then became the Czechoslovak vice-minister
of the interior wrote: “The silence regarding the [secret]archives points at
one unclear suspicion: somebody is hiding somebody. ... But it’s better to
know and to forgive than to live in doubts. ... [I]f we want to start again
in a differentway, we must know above all the truth about us” (Rum11990).
Unveiling the truth was one of the most important motivations of many
politicians since the beginning of the transition in both countries. A group
of the Czechoslovakfederal deputiesproposed to open the secret police files
and publicize the list of the secret police collaborators in “a civilized way”
(Necas 1990;Leko 1991).Even the Polish President Aleksander Kwasniewski,
a former communist, wanted the lustration law to provide for free access
for all citizens to their secret files (Misztal 1999,44; see generally Los 1995,
143).
Seeking the truth was closely related to the right to information
~ ~~~ ~ ~ ~ ~
37. This quest for truth in other transitional countries often includes a search for truth
about human rights violations-for instance,knowing the truth about disappearances, torture,
border killings, and so on, which is often pursued through some form of truth commission.
Although the goals here overlap, lustration laws serve to narrow the search for truth. Truth
commissions often include victim-centered approaches to the truth, while lustration is clearly
a perpetrator-centered approach (C.Roederer’s comment to the original version of the paper;
cf. David 2002b).
Lustration Laws in Action 405
(Romaszewski 1991, quoted in Los 1995, 127). It included not only the
information about oneself but also about the candidates in elections. Some
supporters of the lustration process in both countries held a liberal view on
that matter:
[I]f a candidate runs for public office, his eventual voter has the full
right to know all relevant facts about the candidate, and I also consider
a relevant fact the informationwhether he was, or was not a collaborator
of StB,whether he has a criminal record, or whether he suffersfrom
unrecoverable diseases. On the other hand, it is the free will of voters
whether they will elect such a candidate. (Zeman 1991)
Anybody who runs for a high office has to be prepared for the
lustration process and for the questions about his own past. There are
no legal limitations that a [secretpolice] agent cannot become a president.
I think, though, it will not happen. (Olszewski 1995)
To a certain extent, revealing the truth was a precondition of establishing
democracy in the transitional countries. It could help people gain confidence
in political candidates, regain trust in public institutions, disclaim
rumors and gossip, and ease the tight atmosphere in society.
E. Retaliation
Certain retaliatory tendencies are perhaps natural and emotionally
driven responses to the representativesof any collapsed totalitarian regime.
However, in comparisonwith the postwar waves of street justice, retributive
laws, wild trials, and ethnic cleansing in some European countries, revenge
took more subtle forms after the fall of communism in Czechoslovakia and
Poland (Huyse 1995;cf. Novick 1968;Deak, Gross, and Judt 2000). People
desired the former oppressorsto leave public life, and the new political elite
discovered the potential of lustrations to pursue this objective. Dismissals
of representatives of the former regime raised concerns among journalists,
who warned against new human rights violation based on the postwar experience
and McCarthyism (Battiata 1991;Laber 1992;Rosenberg 1995).
Popularjustice may not have been pursued for severalreasons: the long
duration of the communist system, its domesticcharacter (Huyse 1995, 71),
the wide continuum between perpetrators and victims, and the fact that
many of its executors themselves became its victims, all of which precluded
easy identification of the adversaries. Another reason might be the declining,
although still omnipresent, brutality of communist regimes in Central
Europe,3*which contrasted with an extremely violent end of the World War
38. The case of Poland, which experienced a brutal martial law in the beginning of the
1980s,only partially fits this profile.
406 LAW AND SOCIAL INQUIRY
11. The political wisdom of the first leaders was another factor: The Czech
Velvet revolutionaries,aware of the postwar waves of retribution in Czechoslovakia,
sought to neutralize popular desires for revenge with the slogan
“we are not like them.” Likewise, the Polish Solidarity leaders, faced with
the then-still-powerfulcommunistclique,drew “athick line after the
Although a large part of the population might have initially embraced the
desire for vengeance, vengeance has gradually become an exclusive agenda
of political radicalism.The decline of this tendency over time indicates that
the Czech lustration law, approved less than two years after the fall of communism,
might have strongerretributive motives than the Polish one, which
was passed in 1997.
Indeed, the allegations of institutionalized retaliation and its denial
were brought by 17 deputies in the Czechoslovak lustration debate. Deputy
Rynda (1991), for instance, called it “legal violence,” Deputy Ransdorf
(1991) labeled it “inquisition and McCarthyism,” and Deputy J. Cemy
(1991) saw it as “a proxy for the inability to prosecute communist crimes.”
Some deputies argued that the bill constituted a collective guilt and caused
unjust punishment (Samalik 1991). Advocates of lustrationsdismissedthese
concerns. According to Deputy Farkas (1991), a reporter on the lustration
law for the Chamber of the People (one of the housesof Parliament), “during
the debate of the bill in the [parliamentary]committees, deputies of some
political groupsdeliberatelybrought in an impressionof the criminal character
of the proposed norm.” Another deputy, Jana Petrova (1991), argued
that the bill’s sole concern was employment law relationships.This tension
was highlighted by Deputy Kroupa (1991): “[Oln the one hand, many of
us are motivated by the spirit of vengeance against representatives of the
old regime, and on the other hand, there is hysterical fear of the spirit of
vengeance.”
F. The Dynamic of Lustration Aims
A few general conclusions concerning changes in the intensity of the
aims, their backward- and forward-lookingcharacter, and their relationships
can be traced from the above elaboration. The urgency of the lustration
motives are largely affectedby the length of the unregulatedperiod, particularly
in Poland; some motives declined in intensity, while others changed
their character or intensified. Demands for personnel changes graduallyde-
39. The attitude of many leaders was also bound by their previous political agenda. Many
of them, at least nominally, fought for human rights instead of against communism. This also
reflected the presence of international human rights standards after the fall of communism,
which were still in a prenatal stage after the war. The agenda of the postwar leadership was
de-Nazification and retribution in many countries, although many of the then leaders also
wanted to prevent spontaneous vengeance (Novick 1968,61).
Lustration Laws in Action 407
creased, with few exceptions, when they were connected with other issues
brought by media or competing politicians. The focus shifted from general
demands for the disqualification of members of the repressive apparatus as
a group toward the dismissal of specificindividuals. Also, security concerns
have changed from the “defense of democracy” to the “fulfillment of the
obligations toward new allies’’ in NATO. Societal demands for truth remained
unchanged. Even in 2001, people were still demanding that the
government dismantle the secrecy of the totalitarian police (CTK 2001e).
Popular retributive desires faded over time, although they were still embraced
by certain segmentsof society.These findings indicate that the need
for lustrations does not merely occur during the transitional period, on
which they may have a substantial impact.40They are also a response to
the long-term needs of societies with totalitarian experience that have to
transform their political culture, come to terms with their past, and secure
a reliable state apparatus in the pursuit of democracy.
The analysis of the relationship of the lustration motives to the past
provides insights that may change the perception of the laws as backwardlooking
instrumentsof transitional justice. With the exception of the retaliation
motive,forward-lookingmotives prevail in the processesof transition.
The need for personnel discontinuity, for example, is not merely a response
to the past; rather, it is a response to the continuing activities of the old
networks during transition. Similarly,the demand for truth revelation is not
self-servingbut has an important forward-looking dimension of helping to
establish trust in society. The need to protect people from the arbitrariness
of unregulated stage is clearly a response to the defectivefeatures of transition.
These findings contrast with international commentators’perception
of the process as backward-lookingand retroactive (e.g., Report of the ILO
Committee 1992, 7T 79).
To analyze lustration outcomes, one must examine the complex relationships
between the aims of lustration. “Personnel discontinuity” and
“truth revelation” are not only aims in themselves, which are connected to
the right to remedy and the right to information. They are also parallel
means that facilitate the pursuit of other legitimate and illegitimate aims.
Personnel changes enable an actual discontinuity with the past, while truth
revelation facilitates value discontinuity. The deeper the discontinuity implemented
either by dismissalsor truth revelations, the more securityneeds
are satisfied,the more institutionalized retaliation is pursued, and the less
space is left for defamation and the arbitrarinessof power. These relationships
are not absolute; they are inherently limited. For instance, the widening
of personnelchanges and truth revelation may reduce securityrisks only
~
40. The approval of the lustration law and other laws that dealt with the past was used
as an indicator of the relative success of reforms in the Czech Republic during the initial
years of transition (Cepl and Gillis 1996).
408 LAW AND SOCIAL INQUIRY
when there are professionalreplacementsfor the vacant positions,and when
the information about the activities of the intelligence does not endanger
the safety of its agents.
11. LUSTRATION LAWS
Every lustration law contains substantive and procedural parts. The
substantive part determines what positions in the new democratic system
cannot be automatically filled by the members of the totalitarian repressive
apparatus. Every lustration law, therefore, contains two lists of positions:
One is backward-lookingand one is forward-looking;the firstconcerns posts
in the past power hierarchy and the latter defines democratic posts.
The CzechLustrationAct is based on the principle of personnel discontinuity
with the past, while the Polish one emphasizes value discontinuity
through truth revelation. The Polish Lustration Act reflects the changing
characters of the aims over time. Adopted eight years after the breakdown
of communism, it was almost impossible to justify personnel discontinuity
with the past.
A. The Czech Lustration Act
The first lustration law was approved in Czechoslovakia on 4 October
1991 as Act no. 451/1991 Sb.,”l which “prescribescertain prerequisites for
the exercise of certain positions filled by election, appointment, or assignment
in State organs and organizations of CSFR,CR and SR’for the period
of five years.42Among the 300 federal deputies, 148 voted for the act, 31
against it, and 22 abstained.43President Have1 signed the act despite his
reservations (Report of the ILO Committee 1992, TIT 32-42). Pursuant to
the petition of 99 deputies, the Constitutional Court of CSFR abrogated
___
41. The original version is available in English (cf. Kritz 1995, 3:312).
42. In addition to that, the Czech National Council enacted a minor lustration law on
28 April 1992. It is Act no. 279/1992 Sb., which concerns members of the police and members
of the prison guard of the Czech Republic. This supplementary act is not examined in this
paper. Its forward-looking provisions widen the scope of the law in a very minor way and its
backward-looking provisions are almost identical to Act 451/1991 Sb.
43. The bill was approved by the deputies of the Civic Democratic Party (ODS),the
Christian Democratic Movement (KDH), the Christian Democratic Union (KDU-CSL), the
Public Against Violence (VPN), the Civic Democratic Alliance (ODA), the Movement for
Self-government Democracy I (HSDI), the Christian Democratic Party and the Liberal Democratic
Party (KDS and LDS), the Hungarian Christian Democratic Movement (MKDH),
some deputies of the Slovak National Party (SNS), the Association of Social Democrats
(ASD), and the club of independent deputies. The clubs of the Civil Movement (OH),HSD
11, the Movement for Democratic Slovakia (HZDS), the Social Democratic Party (CSSD),
some deputies of the SNS, two members of the KDU-CSL, and the CP did not vote for the
bill (abstained, voted against, did not vote, or refused to be present during voting) (Federal
Assembly of CSFR 1991).
Lustration Laws in Action 409
severalprovisionsbut upheld the act in its substance on 26 November 1992
(Pl. US 1/92).44
The act has not been applied in Slovakia since the split of the federation
(ExplanatoryMemorandum 1996, n.ll), and it formally lost its effect
there by the end of 1996 (Fisher 1997).Nevertheless, it was twice extended
in the Czech Republic: on 27 September 1995 as Act 254/1995 Sb. and on
25 October 2000 as Act 422/2000 Sb. The second extension is not limited.
In both cases, President Havel tried to veto the but both vetoes
were overruled by the Chamber. In 2000, more than 36% of Czechs supported
the extension of the act, and 33% were against it ( I W M 2000).
On 5 December 2001, pursuant to the petition of a group of deputies, the
Constitutional Court of the CzechRepublic upheld the act and its extension
(Pi. US 9/01).46
The lustration act procedure can be broken down into the following
steps: An individual, who holds, applies, or stands for a position specified
by the act, is required to submit both a certificate issued by the Ministry of
the Interior about her work for, or collaboration with, the secret police, and
an affidavitthat she did not belong to other groups specified in the act (00
4 [l] and 4 [3]). If an individual belongs to any group specified in the act,
the organization is required to terminate her employmentcontract or transfer
her to a position that is not specified by the act (§ 18 (2); cf. §§ 15,
16). The publication of the certificate is impermissible without the written
consent of the citizen (8 19).47
The act applies to elected, appointed, and assigned positions48in the
state administration, and high-ranking officers in the army and the Ministry
of Defense,the Securityand Information Service,the police, and the Corps
44. In addition to other provisions, the court also annulled 5 2 (1) (c) of the lustration
act (the candidates for secret collaboration). Unlike other categories, the records kept on
this categorywere unreliablefor the purposes of the act. For example, the collaboration with
people in this category may have been in initial stages, and they may not have been fully
aware of that fact.
45. According to presidential spokespersonL. Spacek,“Mr.President explained his step
saying that he did not sign the laws in 1995 either because he did not want to justify the
five-year period of waiting for the bills on civil service.” Spacek said, adding that for this
reason President “Havel would not allow another five-year waiting period” (CTK 2000b).
46. The court abrogated some provisions of the minor lustration law that had not been
previously reviewed.
47. Any person can object to the termination of her employment at a second-levelregional
court instead of the first-level district court (§ 18 [2]) and appeal the decision at the
High Court (Act no. 99/1963 Sb., 5 10 [2]).According to the SupremeCourt (Decisionno.
6:273, 1992), the truthfulnessof the certificate issued by the Ministry can be challenged on
the basis of civil procedures (Act no. 99/1963Sb., 0 247). Other legal protection in this area
is guaranteed by the civil code’s protection of the personhood clauses (Act no. 40/1964 Sb.,
$9 11-16). Thereafter a person can submit a constitutional complaint, if her rights are encroached
(Act no. 182/1993 Sb., § 72 [I] [a]).
48. The act concerns only senior positions in the listed organizations, and it does not
affect employees therein. Some deputiesoriginallyproposed widening the scopeof the lawe.g.,
by replacing the word positions with the word employment (Farkas 1991).
410 LAW AND SOCIAL INQUIRY
of the Castle Police. It includes seniorpositions in the officesof the constitutional
organs (the offices that support the presidency, the Chambers, the
government, the Constitutional Court, and the SupremeCourt), the public
media, and the management of enterpriseswhere the majorityshareholder is
the state. The requirements also concern academicofficialsin management
positions; the posts of judges, assessors,prosecutors, investigators,state notaries,
and some security-sensitiveconcession-based trades.49Every individual
older than 18years of age is entitled to apply to the Ministry of the Interior
for the issue of a lustration certificate ($ 8 [l]).The certificate and affidavit
are not required for citizens born after 1 December 1971 (Act no. 422/2000
Sb., Q 1).
Backward lookingprovisionsconcern those parts of the repressive apparatus
that are proclaimed incompatible with the above-specifiedpositions
in state organs and organization^.^' It includes membersof the State Security
(StB),its collaboratorsat the specifiedlevels,some higher Communist Party
official^,^' the political management of the Corpsof National Security,members
of the People’s Militias,52members of the purge committee^,^^ and
students, scholars, or visitors at the specified Soviet KGB and other political-security
universities between 1948 and 1989.
B. The Polish Lustration Act
The Polish Sejm adopted the lustration bill in April 1997. Among its
460 members, 214 voted in its favor, 162 against, and 16 abstained (Misztal
1999, 44). The Polish senate approved the bill in May 1997. Among 100
senators, 47 voted for it while 33 voted against it.54President Kwasniewski
49. It concerns trades in the area of development, production, repair, and trade with
firearms, weapons, and ammunitions,etc. (see Act no. 455/1991 Sb., 8 27 [2]and app. no. 3).
50. Two sections of the lustration act that concern the repressive apparatus: $3 2 and
3. The latter is only a modification of the former. The following discussion focuses on the
more important section 2 of the act.
51. It includes the top echelons of the Communist Party with the exemption of those
who held these positions during the period between 1 January 1968 and 1 May 1969. The
reason for this exception is that since the selection of Alexander Dubcek as the secretary
general, the CP tried to launch social and political reforms of the totalitarian system,which
might have led to the abandonment of authoritarian ways of governance and to the building
of “socialismwith a human face.” This attempt was halted by the military intervention of
the Warsaw Pact armies on 21 August 1968.
52. The People’s Militiaswere paramilitaryunits of the Communist Party, which helped
to facilitate the communist takeover in 1948 and conducted various repressive tasks during
the communist regime (Bilek and Pilat 1995).
53. These purge committees were established ad hoc after the communist takeover in
1948 and after the Soviet invasion into Czechoslovakia in 1968 in order to facilitate broad
arbitrary exclusions of hundreds of thousands of people from their posts for political reasons
(see PI. US 1/92).
54. The bill was supported mainly by the Solidarity Election Action (AWS), the Freedom
Union (UW),and the Polish Peasant Party (PSL). Opposition to the bill came mainly
Lustration Laws in Action 411
(former member of the ex-communist SLD) signed the bill in June 1997,
although he later requested the Constitutional Tribunal to abrogate some
of its provisions (Constitutional Watch: Poland 1997a). The act “on the
revealingof work or service in State securityorgans or of collaboration with
them between 1944 and 1990 by persons holding public positions” (Polish
Lustration Act) came into force on 3 August 1997 (Constitutional Watch:
Poland 199713)and was several times amended.55On 21 October 1998,the
Constitutional Tribunal upheld the act (Sygn. K. 24/98). However, in a
subsequent decision of 10 November 1998, it found two of its provisions
unconstitutional (Sygn. K. 39/97). In 1999, 56% of Poles supported
lustrations, while 31% were against them (CBOS 1999).
The main feature of the Polish lustration act is verification of affidavits
submitted by persons who apply for positions specified by the act as to
whether they worked or collaboratedwith securityservicesof the communist
regime (arts. 2,3, 4, and 7).The substance of these affidavits, if they reveal
collaboration, is officiallypublished in “Monitor Polski” (the Polish Monitor),
the government gazette (art. 11).
The act establishesa special lustration prosecutor, the spokespersonof
the public interest (RIP) (art. 17),and authorizes the Warsaw Court of Appeal
as the lustration court (art. 1).It sets a special judicial procedure that
is directly connected to the regular criminal law (art. 19).56The process can
be initiated by the RIP at the court, and a memberof Parliamentcan propose
its initiation (art. 18).57
The court decides whether the affidavit is true or false, or orders a suspension
of the case. The lustrated person is in the position of an accused
according to criminal law (art. 20) and she can appeal the judgment (art.
23 [21). The results of the lustration are published in the Polish Monitor
(art. 22 141).A falseaffidavitis sanctioned by the loss of moral qualification
for 10years, which implies the loss of the right of access to any public positions
for that duration (art. 30).
Publicpositions affectedby the act’sforward-lookingprovisionsinclude
the highest constitutional officials, namely the president of the republic;
deputies and senators; and persons assigned, elected, or appointed by the
~~ ~~
from the DemocraticLeft Alliance (SLD), which is led by the ex-communist Social Democratic
Party (SDRP) (Constitution Watch: Poland 1997a).
55. See Dz.u.99.42.428, Dz.u.99.57.618, Dz.u.99.62.681, Dz.u.99.63.701, Dz.u.00.43.488,
Dz.u.00.50.600. In 2002, the coalition dominated by formercommunistsnarrowed the lustration
law (see Dz.u.02.14.128).This change is not examined in this paper (see alsosupra note
10).Center-right deputies asked the Constitutional Tribunal for their review (PAP 2002a).
56. If a procedure is not regulated by the act, it is regulated by the Code of Criminal
Procedures.
57. The procedure can also be launched at the request of a publicly active person who
was publiclydenounced of workingor collaboratingwith securityorgans (arts. 8 and 18a [3]).
It can also be launched at the request of a person who demandsa decisionthat she was forced
to such collaboration (art. 18a [4]).
412 LAW AND SOCIAL INQUIRY
president and other constitutional organs.The provisions also include senior
public officials,judges, prosecutors, and advocates and those who occupy
leading positions in public media (art. 3).
The backward-looking provisions of the Polish lustration act concern
positions held in the several security organs between 1944 and 1990, such
as the Ministry of Public Security,the Committee for Public SecurityAffairs,
and their subordinated units; and the Security Service (secret police), army
intelligence, army counterintelligence, and other services of the military
forces. The lustration act also covers civil and military organs and the institutions
of foreign states that engage in tasks similar to the aforementioned
organs (art. 2).58
111. THE EVALUATION OF THE LUSTRATION POLICIES
This part evaluates the extent to which the application of the laws has
fulfilledthe expectations and comparesthe impact of the laws in both societies.
It analyzesthe legal lustration stage in the Czech Republic (1991-2001)
and in Poland (1999-2001),59and it also examinesthe post-lustration situation
in Slovakia, where several negative features of the unregulated stage
had been reestablished during the rule of Vladimir Meciar (1994-98).
A. Minimal Justice: Personnel Discontinuity with the Totalitarian
Apparatus
The Polish lustration act substantiallydiffers from the Czech one with
respect to discontinuity. In the Czech Republic, a positive lustration means
that a person is not eligible for a position in the new democratic regime,
which leads directly to her disqualification. In Poland, lustration serves as
a means of verifying the truthfulnessof an affidavit submittedby a candidate
for a specifiedoffice declaringwhether she worked for the repressive apparatus
of the former regime. This process can lead to the conviction that a
person is dishonest, and as a consequence, she can be barred from a position
in the democratic government for 10years. The Polish lustration law actually
divides high public officials into three groups: those who did not work
or collaborate with the past security organs, those who did so but revealed
the fact, and those who failed to confess their past. Only the third group
could be dismissed. Thus, in Poland, the requirement of discontinuity with
58. The Polish police state of the 1980sis analyzed in Los and Zybertowicz (1999,263-
59. Although the Polish lustration act was approved in 1997,the process only started
68).
1January 1999 because of the lack of political will to establish lustration institutions.
Lustration Laws in Action 413
the past regime is met only conditionally, whereas in the Czech Republic,
it is satisfied directly.
In reality, however,both acts partially converge in respect to this aim.
In the CzechRepublic,the Act is sometimesavoided by an informal “authorization.”
It means that a person who is not eligible for a specified position
because she does not meet the lustration criteria is authorized temporarily
to hold a position. A few such cases were related to key privatization institutions.60According
to lawyer Petr Toman, the former spokesmanof the Parliamentary
Committee of 17 November, “entrusting people with exercising
some leading [positions]was the way of circumventing the screening law”
(2000c).
In Poland, after submitting an affidavit revealing collaboration with
the communist repressive apparatus, those involved are in some cases dismissed,
or there is pressure for their dismissal (PAP 2002b). For example,
on 2 March 1999, after publication of the first list of affidavits revealing
collaboration with security forces, Hanna Suchocka (UW), then minister
of justice, “reacted swiftly, demoting two district procurators who had acknowledged
their collaboration. At the same time, she recommended that
the presidents of courts dismiss those judges whose names had been published
[as secret collaborators]”(Constitutional Watch: Poland 1999).Some
anti-lustration-oriented Polish media interpreted it as a “punishment for
truth” (Paradowska 1999a), whereas some pro-lustration media considered
the lack of discontinuity as the main shortcoming of the process (Woyciechowski
1997).
The Czech lustration act would meet the criterion of discontinuity in
leading positions if it were properly enforced.The Polish lustration act does
not formallypreclude such discontinuity because the disclosure of the truth
about one’s past can be a reason for dismissal. However, these dismissals
seem to occur only rarely, highlighted and criticized by the media. Consequently,
discontinuity with the past in Poland, attributable to the lustration
law, cannot be substantiated.
In the Czech Republic, the scale of discontinuity, represented by the
number of people who left their posts after the law was enacted, is difficult
to estimate.There are no comprehensivestatisticsconcerningthe application
of the lustration act. By November 1992, 168,928lustration certificateshad
60. For instance, the section of the National Property Fund (FNM) that was responsible
for exacting claims was led by the alleged former secret police officer Milan Plevka. The
FNM spokeswoman said that Plevka was only entrusted with leading the section and was not
appointed as its director (CTK2000~).This was not the first scandal in the FNM, one of
the key institutions in the privatization process. In 1999,journalists found that its chairperson,
Jan Stiess, had been using a false lustration certificate (Navara and Baroch 2001). In another
case related to privatization, D. Triska, allegedly a secret collaborator, “held” a position of
federal vice-minister of finance under Vaclav Klaus (ODS).Triska was considered a founding
father of the voucher privatization, which largely favored high communist cadres; he was
later dismissed (Hejl 2002).
414 LAW AND SOCIAL INQUIRY
been issued, among which 11,363were positive (PI. US 1/92).6l According
to information provided by the Ministry of the Interior in March 2001, approximately
345,000lustrationcertificates,among them around 3% positive,
had been issued since the law took effect (Sulc 2001). According to a poll
conducted in the Czech Republic in 2000,32% of respondents thought that
the lustration law was beneficial to democracy,while 27% held the opposite
view; 29% thought that it was beneficial to the personnel situation in enterprises
and offices, while 30% held the opposite opinion (IVVM 2000).62
Besides their different means of pursuing discontinuity with the past,
the scopeof the laws determine their capacity to reach this aim. Both lustration
laws are quite narrowly drawn. In the vertical dimension, they do not
concern the entire public service. They only apply to leading positions in
the administration, although they concern all membersof the justice system.
At the horizontal level, neither of these acts regulates the economic sector.
This means that members of the former repressive apparatuscan run “their”
businesses in many areas.63Unfortunately, their enterpriseswere often associated
with word tunneling, which reflected mismanagement, nontransparency,
fraud, and bankruptcy. For example, in the Czech Republic, former
secretpolice agent VaclavJunek,who was allegedly involved in an industrial
espionage in the French chemical industry, became the general manager of
the Chemapol Group; and former nomeklaturu cadre, Lubomir Soudek, became
the generalmanager of Skoda Plzen. The enterprisesmanaged by them
were almost bankrupted (Spurny and Kontra 1998; cf. Sykorova 2000).
Moreover, Soudek tried to supply weapons to the regimes under the U.N.
embargo (Spurny and Kontra 1998).
In Poland, even if the lustration law concerned the business sphere, it
61. This number did not includethe abrogatedcategory (c).However,it did include many
election candidates, those who applied for the certificate because of their own interest, and
members of organizationsthat conditioned their membershipon negative lustrations, such as
the Confederationof Political Prisoners (Drobny2000).Since “legal”lustrationswere launched
in 1991,the number also covered certificates issued for the Slovak part of the CSFR. On the
other hand, many of those who had “certain contacts”with the secret police might have been
deterred from applying for a listed position and, therefore, be also affected by the law.
62. The question of whether the law was beneficial to the personnel situation in enterprises
and offices is disputable,since the act does not concern enterprisesand the public may
not be aware of that fact. The Czech lustration act only concerns the management of state
enterprisesand some security-sensitiveconcession-basedtrades. Public demand for lustration
in the private sphere would be very hard to defend. See below.
63. According to a survey conducted from 1992to 1996,membership in the communist
elite is the most significant variablefor predicting membership in the new business elite (Mateju
and Rehakova 1997,quoted in Tucker 1999).These data offer three interpretations.First,
the lustration law is unsuccessful in providing discontinuity with the past because it does not
affect the business sphere. This was expected by the public but was legally unjustifiable and
thereforewas omitted from the law. Second, the requirementof discontinuitywas met because
the formernomenklaturaleft the state administrationand entered the privatesector.The explanation
for their success could be their human capital and management skills,none of which,
however,was associatedwith the profile of communistcadres.Third, the requirementof discontinuity
was met only partially. Cadres who left the state administrationhave nonethelesskept
their contacts with those who stayed. Their social capital explains their business success.
Lustration Laws in Action 415
was enacted too late to prevent old cadres from taking advantage of their
socialcapital during the massive privatizationprocess.“ In the “capital conversion
process,” former nomenklatura transformed political capital for economic
capital, which it later utilized to regain political power; security
networks played a vital role in this process, providing intelligence, international
contact, skills and protection (Los and Zyberetowicz 2000, 20).
The approval of the lustration law in the Czech Republic and the absences
of lustration in Poland might be one of the factors that explains
different patterns of the grand-scale corruption, by which many nomenklatura
cadres legalized their informal ownership of huge enterprises. While the
“capitalconversion process”took place during all the transformation period
in Poland, the “tunneling” of the Czech economy became only apparent in
the midst of the 1990s.It seems that the Czech lustration law had been fairly
effective in decreasing the influence of old cadres on politics and economic
transformation within a few years of its enactment. The law made keeping
or deploying their people in crucial decision-makingpositions in the privatization
process difficult. The business class of nomenklatura cadres could no
longer rely on their connections to the Communist Party (KSCM), whose
political influence also diminished due to their repeated electoral defeats
and political is0lation.6~Thus, the old power networks had to find other
ways to pursue their objectives: They exercised their influence over parties
that were committed to pursuing privatization via liberal provisions on financing
of political parties.@
Although both lustration laws have been found quite narrow in their
scopes, they substantially differ in their backward-looking aspects. Unlike
the Czech lustration law, the Polish one does not include high communist
echelons as possible initiators of human rights violations. It includes only
members of and collaborators with the secret police and other security
64. See, e.g., the FOZZ scandal, the BIG scandal (Losand Zybertowicz 2000, 165, 173).
65. The minimal discontinuity with its Czechoslovak predecessoris probably the main
reason why the Czech Communist Party (KSCM) remains in political isolation. Until 2002,
none of its members has ever been elected to a leadingpost of the Czech Parliament. President
Have1 never invited KSCM to political consultations, as he did the other parties. And at
the party congressheld 14-16 March 1997in Bohumin,even its ideologicallyclosestpotential
ally, the Czech SocialDemocraticParty, approveda statement of noncooperation with KSCM
at the central level.
66. The then version of Act no. 424/1991 Sb., on political parties, enables unlimited
sponsorship of parties without any sanction for eventual false sponsorship.The center-right
parties of the then-govemment coalition, especially ODS and ODA, received millions of
Czech crowns (CZK) as gifts from official or fake sponsors.However, the “sponsorships”that
accompanied the privatizationprocess were not limited to the past cadres. For example,one
of the main sponsorsof the ODS was former tennis player Milan Srejber, who co-privatized
an iron-industryenterprise in Trinec. In another case, a company that belonged to Agroplast,
which smuggled jet bombers (MiG-21s) to North Korea, let the ODS use its helicopter in
electoral campaigns (Kmenta 2000b). Later, the government of Social Democrats (1998-
2002), backed by ODs, deepened special relations with old nomenklatura “experts”(Jordan
2002b).
416 LAW AND SOCIAL INQUIRY
branches.67In Poland, even some lustration opponents criticize the lack of
de-communization, which is actually a request for the widening of the law
(Paradowska 199913). Nevertheless, the number of affected communist uppurutchiks
is almost insignificant in the Czech Republic.68
Despite the narrow composition of both laws, to my knowledge, in
neither country did the old totalitarian networks in the state commit serious
human rights violations after the laws were enacted. However, the institutions
of the criminal justice system are appallingly inactive in the prosecution
of communistcrimes.Given the scaleof gross human rights violation^,^^
the trials of their perpetrators are rare in both the Czech Republic?’ and
P01and.~’
Abuses of state power were restored in Slovakia after its lustration
policy was dropped. The Slovak Information Service (SIS) allegedly employed
a large number of former secret police agents, including its first deputy,
Jaroslav Svechota (Butora 1999). The SIS was involved in several
serious incidents that violated essential democratic principles. It placed
under surveillance the then-opposition parties and politicians; monitored
churches, trade unions, and journalists critical of Vladimir Meciar’sgovernment;
organized a kidnappingof the son of the then SlovakPresidentMichal
Kovac Jr. (Radio Prague 1999~);sabotaged public meetings; and blew up
the cars of journalists. These illegal activities were carried out by a secret
52nd department that was under the direct command of Mr. Svechota
(Nemecek 1999).
In this case, the abuses of power are associated with former secret policemen.
One cannot claim that these abuses are consequencesof their presence.
One can merely claim that had the Czechoslovak lustration law
remained valid in Slovakia, Mr. Svechota and others might not be allowed
to work at the SIS. If the power abuseswere politicallymotivated, and some
commentators indeed suggest a link with the PM Meciar, then the political
elite would have to find different ways to intimidate its opponents.72
67. This is the reason why lustration is distinguished from de-communizaation in Poland,
while the term lustration also includes partial de-communization in the Czech Republic.
68. For instance, the categoryof Party secretariesat the district level is one of the widest.
The Czech Republic consisted of 72 districts before 1989. The total number of the former
Party apparatchiks affected might be several hundreds.
69. See supra notes 22 and 23.
70. By 1 November 2001, nine people were condemned, among them five received suspended
sentences in the Czech Republic (Prehledpri$udu 2001).
71. In Poland, there has been “only one major trial of persons responsible for Stalinist
crimes. . ..[It] resulted in convictions . ..for all twelve defendants, former functionariesof
the Ministry of Public Security. . . . [One of them] received a suspended sentence” (Los and
Zybertowicz 2000, 186).The reason for these results in Poland might be “[p]oliticalmanipulation,
as well as the intimidation of judges, prosecutorsand witnesses,[which]have been welldocumented”
(2000, 187).
72. Had the law been in force, Meciar himself might not have been eligible to hold the
appointed post of the prime minister, depending on the category of his alleged collaboration
with the secret police (Naegele 1999).
Lustration Laws in Action 41’7
B. The Protection of Rights and the Need for Legal Regulation of
the Process
Both lustration laws provide individuals with the opportunity to defend
themselves from defamation and rumors of collaboration with the former
secretpolice. In the CzechRepublic, anyone can request a lustration certificate,
and in Poland, a defamed person can require the decision of the lustration
court. Nobody can be lustrated without previous consent, and in both
countries anyone can challenge the decision at the court.
The lustration laws had a different impact on public life in the Czech
Republic than that it had in Poland, while the absence of the law to a large
extent influenced politics in Slovakia. In Poland, after three years of the
process, it is difficult to determine whether it fulfilled the expectation of
calming the tense political atmosphere or deepened the political crisis. On
the one hand, the law offered a way out of political tensions and mutual
mistrust. For example, after the lustration act was passed, Deputy T.
Karwowski publicly accused Prime Minister Jerzy Buzek of collaboration.
Buzek responded by asking the Spokesperson of the Public Interest, Judge
Nizienski, to examine his affidavit first. Nizienski agreed and announced
that he had found no groundsfor requesting the lustration court to examine
the Prime Minister’s affidavit (Constitution Watch: Poland 1999).
On the other hand, every single step of the Polish lustration process
is interpreted as a political scandal, and much of the criticism seems to be
negatively biased. Some journalists reach disavowal conclusions about persons
concerned before the lustration process ends or even at its very initiation.
The provision that every member of Parliament may propose an
initiation of the verification of affidavits submitted by people holding state
officesis considereda tool of political struggle (Paradowska1999b),although
without the provision, politicians would continue to denounce their rivals
at their press conferences. A proposal to initiate the lustration process is
considered a dirty orchestrated accusation (Michnik 1999), and a decision
of the lustration court is treated as final although pending an appeal (Paradowska
2001). The lustration of candidates for high state offices, namely
the presence of the presidentialcandidates at the lustration court, was interpreted
as their discrediting(Baczynski2000) despite the fact that both Lech
Walesa and Aleksander Kwasniewskihad a chance to clear themselvesfrom
suspicion.They would not have this chance without the law and the regular
lustration process. Moreover, a reprint of the officially published names of
those who revealed their collaboration in one newspaper is portrayed as a
scandal by other newspapers (Check0 1999). The question is, How could
people exercise control over public officials without knowing their pasts?
According to the mrio legis of the lustration law, the public was supposed
to give its compromisedleadersa second chance in exchangefor truth. Thus,
the criticism in fact insists on the second chance without truth revelation.
418 LAW AND SOCIAL INQUIRY
The contaminated lustration discourse might be a result of the long
pre-lustration period when the theme was used quite arbitrarily to discredit
political opponents. The situation may settle as time passes. Such optimism
was manifested in the first lustration decision of the Polish Constitutional
Tribunal:
In the present political life, we can observe ...allegationsof politicians
regarding the fact of collaboration of particular persons with security
organs as well as questioning the truthfulness of already submitted affidavits.
This is a very bad habit. [However] looking from this point of
view . . . the carriage of the lustration proceeding . . . will without
doubt contribute to the recovery of the situation.” (Sygn. K. 24/98,
part 3.3)
Obviously, there will always be people, journalists, and “politicians on
the right as well as on the left who would never be persuaded even by the
decisions of the Lustration Court” (Gottesman 1999).However, this should
not surpriseanybody.Some people will never be convinced by the decisions
taken at any level of any judicial system. Moreover, certain mistrust is logically
needed as the precondition of trust. In democracy, people cannot uncritically
accept an authority as in a monarchy or a church.
The poisonous atmosphere that surrounds the lustration process also
originates in the lack of wide social consensus on the definition and causes
of collaboration. Any legal definition has an inherently dichotomous character,
dividing a continuum of possibilities according to those that conform
with the definition and those that do not. The definition of collaboration,
for example, transfers the complexity of human nature, with all its weaknesses
and ambiguities, and here exposed to the extreme situations of totalitarianism,
to binary categories of truth versus lie, and collaboration versus
not collaboration. Many intellectuals, including former dissidents such as
Adam Michnik in Poland or Petr Uhl in the Czech Republic, recognized
these difficulties,stood by former oppressors, and became opponents of the
process. However, such approach, which blames the system rather the individual
for the act of collaboration, deprives individuals of their humanity,
their capacity to be responsible for their acts. If the human agency was absent
in former communist regimes, the democratic transformation could
never occur. In a way, this inclination to blame the system may arise in
response to any legal provisions that regulate social relations, especially
those of penal law. However, the fact that a murderermay in fact be a victim
of society because she is unemployed and had a difficultchildhood does not
lead to the abolition of criminal sanctions. Ofcourse, lustration processes
do have borderline cases, such as those of Jan Kavan in the Czech Republic
and MarianJurczykin Poland (Rzeczpospolita,3 October 2002).But neither
do borderline criminal cases lead to the abandonment of penal code.
Lustration Laws in Action 419
In Slovakia, mutual accusations have continued even in the postMeciar
era (RadioPraguel999d),and there has been no mechanismfor their
resolution since the lustration policy was abandoned. Notwithstanding, lustration
does not seem to be an issue on the present Slovakpolitical agenda.73
For the second round of the 1999presidential elections, Slovaks chose two
candidates,Rudolf S c h ~ s t e r ~ ~and Vladimir Meciar (Naegele 1999).The two
might fall within the scope of the Czechoslovak lustration act if it was applied
and, in addition, if it concerned popularly elected offices.75
In the Czech Republic, the lustration act has substantially helped reduce
political tensions although scandals typical of the pre-lustration stage
are still reported. The main problem is that the act has not entirely stopped
the leaking of materials, executed often on a selective basis, which has led
to other political scandals.For instance, before the 1992 Czechoslovakparliamentary
elections, an incomplete list of secret police collaborators was
published (Cibulka 1992). The same list was appended and reprinted in
1999 (Cibulka 1999) and is now available online. Leaked materials sometimes
directly target certain individuals. For example, unauthorized materials
about prominent Czech politician Jan Kavan are often published (e.g.,
a recent book of the Kavan’s secret police file) (Vachalovskyand Bok 2000;
cf. Goldsmith 2000; Remias 2000).
President Havel condemned
the leakage, pointing out that the materials were not reliable and
caused“immeasurablenumber of human tragedies’’(Michnik 1993).Despite
the condemnation, Havel himself did not expressmuch of his trust in Kavan
when he hesitated to appoint him the minister in the social democratic
government after the 1998parliamentaryelections (Perglerand Kubik 1998;
cf. CTK 2002).
There are severalpossibleexplanationsfor the leakage.The reason that
attracts the media is usually the past of a person who holds a high public
office. In the Kavan case, it was his high position as the minister of foreign
affairs(1998-2002) and the president of the UN General Assembly (2002-
3); the evidence procedure that led a court to a conclusion that he was not
The leaked information may not be
73. While this paper was being revised for print, the Slovak newspaper Sme (21 October
2002) identified nine members of the newly elected Parliament, including the minister of
foreign affairs, as alleged collaborators with the secret police. The chairman of the Slovak
Confederation of Political Prisoners, L. Pittner, expressed hope that the lustration issue would
be reopened after Slovakia receives an invitation to join NATO. Nevertheless, the alleged
collaborators mostly belonged to the “graycaFegoryc,”which was abrogated by the Czechoslovak
Constitutional Court in 1991 (see PI. US 1/92).
74. In 1992,Schuster had to leave the post of the Czechoslovak ambassador to Canada
as a consequence of the lustration act (Sedlak 2001).
75. Cf. supra note 48 and 72.
76. Some politicians and government officials, including Marian Gula, the head of the
Slovak Office for the Investigation and Prosecution of Communist Crimes and former head
of the same office in the Czech Republic, confirmed that Cibulka’s lists are correct. The
problem is that the lists include also category c, which was abrogated from the lustration law.
.
420 LAW AND SOCIAL INQUIRY
a conscious collaborator despite his allegedly frequent meetings with the
secret police members, one of which was broadcast on a Czech private TV;
his 1996Senate campaign, in which two former secret police members participated;
and his profile as a “convicted liar” by a court of justice (Spurny
1998; Larsen 1998; Pecina 1998;CTK 1998;Tucker 1999, 85-87).
Information leakage may also reflect the narrow scope of the law. The
public and even some state officials still consider that some exponents of
the previous regime should be included in the law in order to prevent them
from getting influential positions such as in the business sector (Spurny and
Kontra 1998) and media77or from being honored by state awards.l*The
leakage might be a result of the belated enactment of the law. For a few
months following the breakdown of communism, many people, including
former secret policemen, had access to secret police files, and “conditions
at the [Czechoslovak]ministry [of the interior] were such that nearly everyone
was able to walk away with StB documents” (Report of Parliamentary
Commission of 17 November 1991).
The prevention of information leakage could be supported by other
acts, such as the Protection of the ClassifiedData Act, the Freedom of Information
Act, or the protection of personality clauses of the criminal law and
the civil code. In any case,both lustration lawsauthorizecertain state organs
to keep control over the classified documents. Consequently, senior state
officialsshould be held accountable if the leakage comes from their institu-
tion.
C. The Protection of the National Security and Public Safety
Both lustration acts seek to safeguarddemocracy, though they differ in
the means to achieve this aim. In the Czech Republic, the threat to democracy
is reduced by removing some members of the totalitarian machinery
from leading positions. In Poland, a revelation of past collaboration is officially
published that gives the public an opportunity to control the steps
77. Both lustration laws include only leading positions in public media. Although the
Czech lustration act enablesholders of media licensesto require lustration of certain specified
posts therein, this is a mere option that doesnot preclude,for example,former misinformation
specialists from working in the media. Thus, in 1992, the Federal Security and Information
Service delivered a list of names of 262 journalists to the Czech Prime Minister Petr Pithart.
These individualsallegedlyhad been agents of StBand were said to have destabilizedsociety
after 1989 with biased information. Pithart in turn handed the list to the Czech National
Council, and shortly after, it was published (Mlynar 1992).
78. In October 1998, a prestigiousCzech award was to be given to the former Mayor of
Vienna, Mr. Helmut Zilk. However, after information stating that Mr. Zilk had allegedly
collaborated with the Czechoslovak communist intelligence was passed to the office of the
Czech president, the invitation to Zilk was canceled. After a few weeks of international scandal,
Mr. Zilk received an apology from President Have1 (CTK and ZAH 1998; HOP et al.
1998;cf. Plavec 1999).
Lustration Laws in Action 421
taken by these officials, while a false affidavit leads to their removal from
public office.
However, if they do not hold prescribed leading positions,former members
of repressive apparatusare not subjected to the lustration process. Neither
of the lustration acts requires the removal of these people from their
employment in central state institutions. Sinceboth lustration actsonly affect
high-ranking positions in security departments, and given that the secret
services of communist countries were subordinated to the KGB and that
Russian security services still perform activities in the territory of Central
Europe, the question is whether their narrow scopes are sufficient for the
new member states of The Polish lustration law is even more lenient
than the Czech one in the employment of former agents in the new
security organs. As a result, 8%of the Polish police officers and two-thirds
of the employees of the Office for the Protection of the State (UOP) were .
former SB operatives in the late 1990s (Los and Zybertowicz 2000, 132,
based on various resources). The rest of them largely worked for private
security and detective companies, which employ approximately 100,000
people (Los and Zybertowicz 1999, 284, based on data from 1994).
New democracies also have a commonproblem with law enforcement.
For example, in 2001, the Czech Minister of the Interior, Stanislav Gross,
announced that negative lustration certificates were illegally issued to many
former members of the army intelligence (CTK 2001a).This resulted in the
checking of 150,000issued lustration certificates. It was found that 117 illegal
certificateshad been issued mostly in 1992as a result of “incorrectanalysis”of
documents (CTKZ O O ~ C ) . ~ ~Czech press reported that NATO officials
were unsettled by the scandal (CTK 2001b).
The Czech lustration law was unable to stop suspicious arm trade. At
the official level, economic slowdown and increasing unemployment at the
end of the 1990sforced the social-democraticgovernment to implement a
more lenient licensing policy. The Ministry of Foreign Affairs, headed by
Jan Kavan, for example, agreed with the arms export to Sri Lanka and Iran.
At the unofficial level, some companies had been supplying countries like
Algeria, Libya, Iran, and North Korea for a number of years (Jordan 2002a;
Kmenta 2000a; Stroehlein 1998).
In a way, it is a tradition. The Czech Republic has very good relations
from the past with these countries. [It]has a number of receivablesfrom
the communist era there. It is still trying to have them repaid. Czech
79. However, lustration law is not the only law that regulates security screening. Czech
NATO officials are subjected to security checks conducted by the National Security Ofice
(NBU) pursuant to Act no. 148/1998Sb.
80. Eight of their holders worked at the Ministry of Defense; according to the minister,
all of them would be dismissed. One of them worked at the Ministry of the Interior, and 23
worked in the state administration.
422 LAW AND SOCIAL INQUIRY
businessmen have really “special” relations with local politicians and
authorities. Because of its risky nature, any deal with such a country,
both legal and illegal, increases the value of the bid. The amount of
money involved is able to shut the eyes of politicians, officials or businessmen
in Pragueoverproblem that may arise. (Kmenta 2000a,quoted
in Jordan 2002a).
The lustration law was hardly enforced in Slovakia before 1993, it was
entirely inactive after 1993,and it formally expired in 1996. In 1994-98, a
semi-democraticregime81was established,backed by the Slovak Information
Service (Naegele 1997b) and politically supported by Russia (Naegele
1997a). In addition to the abuses of power (see part 3A), former secret policemen
working in the SIS performed activities to prevent the Czech Republic
and Hungary from joining NATO. Based on the Slovak Mitro’s
parliamentary report, Radio Prague reported that “SIScarried out two plans
to achieve this aim in the Czech Republic. ‘OperationNeutron’ and ‘Operation
Dezo’ sought to activate neo-Nazi groups and provoke racially motivated,
mostly anti-Roma incidents in order to discredit Prague” (Radio
Prague 1999a). The work of the SIS in Hungary was also oriented to the
supply of arms to organized crime and some actions toward the disputed
Gabcikovo-Nagymarosdam (Radio Prague 199913).These reasons might explain
why Slovakia was temporarily suspended from the EU enlargement
negotiations, and unlike the Czech Republic, Poland and Hungary, it did
not become a member of NATO in 1999,82which is considered a vital national
security interest of the Central European countries.
The lustration laws, even if properly enforced, can only solve some of
the security problems. The security risks that originated in the past also
require additional legislation to regulate private security companies, access
to classified materials, export and proliferation of weapons, and so on.
D. The Disclosure of the Truth about the Past
Before the law was enacted, critics of lustrations often relativized the
truth that could come from secret police archivesand from secret policemen
themselves. In 1994,a prominent Polish journalist and a critic of lustrations,
81. For the characteristics of the situation in Slovakia, see US. Department of State,
County Reports 1996-99.
82. This does not establish a link between the existence of the lustration law and NATO
membership. Indeed, Poland would be the first falsifier of this hypothesis. It merely shows
that the subversive activities of the former security networks can reach an intensity that may
raise international concern. Besides, there were other reasons to exclude Slovakia from the
EU/NATO expansion, such as its approval of the language law, which violated the rights of
the Hungarian minority; the government’s manipulation of the referendum on NATO accession;
the government’s failure to comply with the decisions of the Constitutional Court; and
so on.
Lustration Laws in Action 423
Adam Michnik, wrote, “The truth must be revealed. But is it always a superior
value? Are the archives reliable? Could we uncritically trust reports
written by agents of Stasi?Is their testimony sufficient to condemn other
people?”(quoted in Bachmann 2000).In 2000, Michnik demandedthe right
of the public to know who had manipulated and falsified documents in the
case of Lech Walesa, who was accused of being a former security service
collaborator (Michnik 2000).
The lustration process seems to end many doubts that material about
politicians might be manipulated or falsified. Both lustration laws provide
citizens with an opportunity to clean their names in the courtroom. It is
the judge who, based on the law of evidence, evaluates the reliability of
secret materials and given testimonie~.~~The value of truth is obviously mutually
conditioned by other values, such as the right to privacy. However,
it is judicially recognized that those who run or hold high offices should
expect a higher interest in their personality than other citizens (Lingens v.
Austria 1986).
With regard to truth revelation, the two laws differ substantially. This
requirement is formally satisfiedby the Polish lustration act. A person holding
a public office is obliged to submit an affidavit about her past work,
service, or collaboration with the security organs. This affidavit is officially
published in its relevant parts. According to the Spokesperson of Public
Interest (RIP), the obligation concerns about 25,000 public officials. By the
end of 2001, 6,689 affidavits had been analyzed; among them, 85 led to
the initiation of the lustration process. This means that the RIP has found
sufficientevidence that 85 people submitted untrue affidavits, which led to
judicial examination by the lustration court. By 2001, the lustration court
of appeals decided that 18 people had submitted untrue affidavits, among
them, 4 were members of Parliament, 2 were high State officials, and
12 were advocates. Positive affidavits that revealed collaboration with
former security services were submitted by 315 people (Wyciug z i n f m j i
o dzialalnosci Rzecmiku 2002).
However, the Polish Monitor publishes only the essence of the affidavits,
making the already confined perpetrator-centered truth revelation even
narrower. The public can learn whether a state official collaborated with
the security organs but not the nature of the collaboration, its motives, or
whether it harmed anybody. People are asked to give a second chance to
collaborators in exchangefor a very limited and partial truth. Consequently,
contrary to the expectations, Poles are deprived of an opportunity to utilize
the potential of lustration to come to terms with their past.
There is no such potential in the Czech lustration act, which protects
a lustratedperson fromrevealing any data concerning her collaborationwith
83. Although the Czech lustration process is primarily administrative, those who receive
a positive lustration certificate may challenge its truthfulness at the court. See supra note 47.
424 LAW AND SOCIAL INQUIRY
the secret police. The entire lustration process is kept secret; the lustration
certificate is delivered to the person concerned and cannot be published
without her consent. Thus, a positively lustrated person has to leave her
position without any public knowledge of her collaboration. The dilemma
of the truth versus the protection of the personality of former informershas
been solved for the benefit of the latter.
The reason for this difference originatesfrom the beginning of the lustration
process. The Czechoslovak government, which prepared the lustration
bill, took a radical stand in protecting those who collaborated with the
previous regime, at the expense of truth. It proposed a provision to the bill
that prohibits the publication of the names of collaborators.Offenders may
have faced up to three years of imprisonment. Several deputies responded
critically to the pro~ision.’~The provision has not been approved, but the
spirit of incriminating any public revelation of collaboratorspersists. It concerns
mainly journalists who are charged with illegal manipulation of personal
data.85
Despite its truth-centered approach, the superiority of people’s privacy
is also acknowledged in the application of the Polish lustration act. The
Spokesperson first verifies positive affidavits. Among the 315 positive affidavits
submitted by the end of 2001, 165 were found to be unwarranted.
Thus, only 150 of them were published in the Polish Monitor (Wyciag 7
informacjio d&lalnosci Rsecmiku 2002).Besides,the hearing at the lustration
court might be closed to the public if a lustrated person requires so. It is
quite unusual, however, since the power to decide the closure of the courtroom
usually resides with the judge. Still, the processes may remain closed
to the public in both countries.
Access to the secret archives also remains limited in both countries.
Although in the Czech Republic, the Act on the Access to Files Created
by Activity of the Former State Security (Act no. 140/1996 Sb.) allows
everyone to gain access to her file, the names of the informers are blackened.s6Currently,
a Senate legislation initiative is pending that demands
unlimited access of the public to the archives (CTK 2OOld).8’ According
84. For example, Deputy Benda (1991a, 1991b) pointed out that if he named a person
who oppressed him and his family for ten years, he himself, instead of the secret agent, would
go to jail for three years. If, however, Benda’s information were untrue, he would be charged
by a different act and go to jail for up to one year.
85. “According to the investigator, [a reporter of the magazine Tyden, Rebeka Krizunoua]
committed the crime by publishing in her article ‘Lies of a High State Official’ a copy of a
protocol from the registry of files of former State Security (StB), which listed the former
chairperson of the National Property Fund (FNM), Jan Stiess, as a collaborator of the secret
police” (CTK 2000a).
86. This might be sufficient to identify the informer from the context of the file, if she
is otherwise known. For example, the former East German opposition activist Vera:Wallenberger
learned that the agent with the cover name “Donald,” whose real name was blacked
out and who had been informing on her and caused her imprisonment, was her husband
Knud (CNN 2002).
87. The bill has been approved in 2002 as Act 107/2002 Sb.
Lustration Laws in Action 425
to a poll conducted by TNS Factum in 2001, 52% Czechs supported the
bill, while about one-fifthof them were against it (CTK2001e).About 55%
of Poles thought that they shouldhave access to their files,and 22% believed
that access should be provided only for those publicly accused, according
to the CBOS poll conducted in January 1999 (Karpinski 1999).
The requirement to know the information about political candidates
is only incorporated into the Polish lustration act, although the affidavit of
a parliamentarycandidate regarding her past relationships with the former
repressive apparatus is publicized after her eventual election>*The Czech
lustration act does not enable the public to know officiallywhether a candidate
or a member of Parliament worked or collaborated with the repressive
apparatus. Nevertheless, based on 8 21 (2) of the act, political parties may
require lustration of their candidates. Some parties use the provision regularly
while others do not require lustration. Thus, the act does not preclude
voters from being represented by secret policemen, their collaborators, or
former totalitarian official^.'^
E. Retaliation
There is no evidence to support the allegation that the lustration laws
institutionalizeretaliation. They are not based on the logic of criminal law,
which implies certain punishment for all of its trespassers. If the legislators
sought to institutionalize retaliation, they would have enacted sanctions
against all members of the repressive apparatus.According to Vojtech Cepl,
Justiceof the Czech Constitutional Court, “if revenge had been our motivation,
there are more effective ways of going about it that inflict a far greater
sanction than symbolic acts of condemnation, lustration, and restitution”
(Cepl 1997).
The Czech lustration law does not sanction every member of the past
repressiveapparatus. Instead, it is primarilyforwardlookingsince it concerns
only access to senior public posts in state institutions (see part 2F, above;
cf. Teitel 2000, 150). Thus, the law and those that followed its model can
be called “semi-retributive.”They are not retributive because they do not
sanction membership in the repressive apparatus,unless these members seek
to hold senior public posts in the new democracy. This feature distinguishes
them from the retributive postwar legislation in Europe?’
88. The lustration process of presidential candidates is launched before elections.
89. Several current members of the Czech Parliament were allegedly secret police employees
or collaborators(e.g.,Deputy V. Filip, Deputy V. Exner), according to the exhibition
of Pode Bal group (2000), named Malik urui: Galerie etablovane mnklatury (Little as Holes:
The Gallery of the Established Nomenklatura). The title of the exhibition allows another
interpretation: Mali kurvi (Little Assholes).
90. For a comparative overview of purge legislation, see Novick 1968, 209-14; Kritz 2:
1-201, 3:291-436. The need for special legislation was the common feature of justice after
the war (Novick 1968,209) as well as after communism.However, these measures differ from
426 LAW AND SOCIAL INQUIRY
There is no evidence of retribution in the Polish lustration law either
(cf. art. 18b). The law does not impose sanctions on members of the past
repressive apparatus. It, however, does sanction dishonesty about membership.
It can be called “semi-reconciliatory,”then, because it resembles the
South African truth and reconciliation process. In Poland, accessof collaborators
to leading public offices is exchanged for truth, as amnesty for perpetrators
has been exchanged for truth in South Africa. Poland’s law is not
reconciliatory because it does not provide a wider forum for the country to
come to terms with its past (David 2002b).
At the same time, the lack of a viable sanction that prevents former
security cadres from leading the country can cause popular doubts about the
Polish LustrationAct. Towhat extent will people trust institutions occupied
by those who have revealed their collaboration?This law may paradoxically
produce certain countereffects by increasing the level of dissatisfaction in
society. However, empiricalevidence shows that it doesnot have these consequences.
According to a poll conducted in 2000,52% of Poles considered
lustration of presidential candidates necessary; 72% of them said it was necessary
to know the past of candidates, and 10%stated that lustration proves
the trustworthiness of a candidate (AutorzyRzeczpospolitej 2000). One interpretation
of these results may suggest that supporters of lustrations are
interested in the disclosure of truth generally rather than in the outcome
of the lustration process-that is, whether a candidate collaborated with
the formersecurityservices.These resultsrehabilitate the imageof lustration
supporterswho may trust a person who worked for the secret service once he
or she has revealed this fact, and they thereforecan no longer be portrayed as
a vengeful mass, hungry for popular justice. The findingsshow that the majority
of lustration supporters might be willing to give their discredited leaders
a second chance as assumed by the law.
IV. EXCESSIVE PROVISIONS
Although it seems that lustration laws are quite narrowly drawn, some
of their provisions may still be too excessive.In order to determine whether
the substantive provisions of both laws follow at least one of the lustration
aims, the substantive provisions should be tested against these aims.
The Polish lustration act concerns the highest constitutional officials,
one another in their scopes and purposes. The postwar laws were largely retroactive. They
imposed harsh punishments, ranging from the death penalty to civic disqualification for all
collaborators, including not only members of Nazi or Fascist groups but also their sympathizers
(1968, 209-11). The lustration laws, in contrast, only limit the access of secret policemen
and the top echelons of the Communist Party (the CP leaders are not included in the Polish
lustration law) to high public posts, a right that is not included in the U.S. Bill of Rights
and that was deliberately omitted from the European Convention (Ghenapp w. Germany
1986, ¶ 48).
Lustration Laws in Action 427
leading public officials,members of the justice system, and the management
and supervisory boards of the public media. Inclusion of these positions is
needed to establishtrust in the impartialityof stateorgansand organizations,
and they have decisive impact on the protection of national security. The
Polish lustration law, which is narrower than the Czech one, satisfies this
test. The Czech lustration act specifies comparable positions in the state
administration,the judiciary,the publicmedia, and the management of state
companies, which can be similarly justified by the requirements of trust,
impartiality, and national security. High-rank positions in the army, the
police, the informationservice,the castle police, and somesecurity-sensitive
concession-based trades are justifiable by security reasons.
The Czech lustration law also covers leading academic posts such as
the rectors of universities and the heads of departments.The reason for their
inclusion might be the reform of tertiary education, largely contaminated
by ideologistsof Marxist-Leninistpr~paganda.~~These positionscan temporarily
be covered by the aim of discontinuity with the past, which includes
the need for wider societal reforms. However, there is no pressing reason
that can justify the incorporation of this category after the reform is accomplished.Ten
yearsof the lustration processoffers a chance for reexamination
of this provision (00 1[31and 1111Idl).
V. CONCLUSION
This paper exploresthe potential of two lustration lawsfor neutralizing
the influenceof old power networks in the processof transition from authoritarian
rules in the Czech Republic and Poland. Based on an analysis of parliamentary
debates, it identifies several lustration goals, which are used as
a normative framework for evaluating the lustration policies. The capacity
of the laws to achieve the aims, and the extent to which the laws satisfied
the aims are summarizedin table 3. Table 4 then lists somefactorsthat have
influenced the performance of the laws.
The comparison of the unregulated lustration stage (Czechoslovakia
1989-91, Poland 1989-98, and Slovakia since 1993) with the situation
when the law was in force (Czechoslovakia/CzechRepublic since 1991/
1993,and Poland since 1999) indicates that lustration laws may contribute
to the consolidation of emerging democracy. Activities of former political
and security networks during the absence of the law were associated with
illegal activities, such as blackmail, subversive and criminal activities, mutual
accusations, political scandals, and the abuse of power. The situation
in Slovakia has shown that if the law is only enacted for a short period of
time, or improperlyenforced,it cannot adequatelyprevent subversion.After
~ ~~ ~ -
91. This was the main reason for the approval of the Bulgarian “Panev Law” (1992).
428 LAW AND SOCIAL INQUIRY
TABLE 3
Evaluation of Czech and Polish Lustration Policies
Czech Lustration Policy Polish Lustration Policy
(1991-2001) (1999-2OO1)
Abstract Abstract
Aim Review* Real Impact Review* Real Impact
Personnel
discontinuity
with the past
End of the unregulated
stage
National security
and public
safety
Disclosure of
the truth
about the past
Retaliation
Achieved in a
narrow
scope.**
Achieved
Achieved in a
narrow
scope.**
Unachieved
Avoided;semi-
retributive
character.
Approximately
12,000positive
lustration
certificates issued.***
Positively
lustrated
persons sometimes
not dis-
missed.
Number of scandals
decreased;
occasional
leakingof information
about
collaborators.
No seriousabuses
of power or
human rights’
violations re-
ported.
Granted by other
laws.
No incidents of
street justice
reported.
Achieved on a
very limited
scale.$
Achieved
Achieved in a
narrow
scope.**
Achieved in a
narrow
scope.**
Avoided;semi-
reconciliatory
charac-
ter.
18 false affidavits
found within
three initial
years. People
who revealed
their collaboration
sometimes
removed.
Positive results of
the lustration
process overshadowed
by
its denuncia-
tion.
No serious abuses
of power or human
rights violation
reported.
Former security
servicesmembers
still employed
in the
state apparatus.
6,689 lustration
affidavits of
25,000 public
officials verified
by the end
of 2001; the essence
of 150
positive affidavits
pub-
lished.$$
Public might be
willing to give
a second
chance.
NOTES:*These columns summarize the capacity of the laws to achieve the aims. **The law
mainly affects leading positions in the public administration and armed services. ***See part 3A
and note 63. $The law divides high public officials into three groups: those who did not work or
collaboratewith the past securityorgans, those who did so but revealed the fact, and those who fail
to confess their past. Only the third group can be removed. $$Wrciag z informacii o d$&dnosci
Rzecmika 2002.
Lustration Laws in Action 429
TABLE 4
Factors Influencing Lustration Policies
Pattern of
Factors Influence Czech Lustrations Polish Lustrations
Main features of
the laws
Relationship
among aims
(also see part
1F)
Scope of the laws
Timing of the
launch of the
process
Role of media
Role of leaders
Role of political
parties
A means of discon-
tinuity.
The realization of
one aim may preclude
the fulfillment
of other
aims.
The scope affects
the realization of
aims.
The delay of the
process changes
the intensity
and nature of
the problems
and the chance
of their solu-
tions.
Acts as watchdog
of the process.
Leaders exert both
informal influence
and formal
influence,via exercise
of presidential
powers.
Lustration is generally
supported by
center-right par-
ties.
Actual personnel
discontinuity
E.g., positively lustrated
person
loses her office
but keeps her
“integrity”because
the process
is secret.
It concerns only
leading posts.
Approved in 1991.
Criticizes the poor
law enforcement;
engages in
unauthorized
publication of
materials.
Ambiguous attitudes
of President
Havel.
Parliament dominated
by centerright
parties.
Potential value dis-
continuity
E.g., a person who
reveals her collaboration
is exposed
to public
scrutiny but
keeps her office.
It concerns only
leading posts. It
does not concern
CP officials
and new security
organs.
Approved in 1997;
launched in
1999.
Presents a biased
criticism of the
process (see part
3B).
Ambiguous attitudes
of Presidents
Walesa
and Kwasniew-
ski.
After its 2001 electoral
victory, the
coalition led by
the largely excommunist
SLD
circumscribed
the law in 2002.
NOTE:The performanceof the laws may be affected by severalother factorsbesides those listed
here, such as law enforcement, which is quite poor in transitional countries (see, e.g., informal
authorization,part 3A; incorrect analysis of data, part 3C;and licensingof weapons trade, part 3C),
and allocation of resources that may affect the speed of the process, especially in Poland.
430 LAW AND SOCIAL INQUIRY
Slovakiadropped its lustration policy,formersecretpolice members working
in and leading its information service perpetrated several serious political
and criminal incidents in its territory as well as in neighboring countries.
This was perhaps one reason why Slovakia, unlike other countries in the
region, could not join NATO in 1999 and was temporarily suspended from
the first wave of the EU enlargement. The example of the long absence of
any form of lustration in Poland may lead to a post-communistmafia capitalism,
which provides international organized crime with new opportunities
for money laundering, tax evasion,easy access to cheap military equipment,
and so on (see Los and Zybertowicz2000,209). This suggeststhe importance
of lustrations for the transition to democracy and market economy in general,
and the reform of the state administration and security in particular.
One may argue that many of these problems are caused by political
circumstances and/or may naturally vanish as time passes. “What would
have happened in the Czech Republic if lustration hadn’t passed?Perhaps
we would be in the same position, merely as a result of the passage of
time. . . . [Allthough it may well be untrue[,] one can imagine that the
blackmailersused up all the easilyblackmailable targets in the firstfew years,
and that the problem would have fizzled-outof its own accord even in the
absence of any legal reform.”92
The answerto this counterfactualquestion can be found in the comparative
sections of the paper. The activities of former political and security
networkscontinued to exist in 1990-91, two years within which Czechoslovakia
established a liberal democracy; between 1993 and 2001, the Czech
Republic was a liberal democracy, and the activities of former political and
security networks were scarcely reported. The problem was also found in
Poland in 1991-99, a period when it had a liberalgovernment; and Slovakia
had a semi-liberaldemocracy when the criminal activities were reported on
a large scale in 1994-98. We can conclude that the problem does not depend
on the form of government, since in both semi-liberaland liberal democracies
the criminal activities were reported. Yet, they may intensify in
a semi-liberalregime. The problems also do not depend on time. They did
not vanish within two years of transition in Czechoslovakiaand within ten
years of transition in Poland. The question of whether they would vanish
afterwardslor in other countries is beyond the scope of the paper.93
92. One reviewer’s comment on the paper.
93. Hungary, which enacted a fairly gentle version of the lustration law, experienced a
political scandal with collaborators at the government level 13 years after the breakdown of
communism (Ecmmist 2002). In postwar France, “Historical quarrels have been politically
important [. . . 1, but only when they have been the vehicle for contemporary struggles”
(Novick 1968, 190).
One may argue that there is a natural time factor-e.g., let’s wait until these people
die/retire. This, however, reflects a static way of thinking that ignores the fact that these
networks may change their nature, expand, or become a core for other types of organized
crime or illegal activities.
Lustration Laws in Action 431
The lustration law is certainly not sufficientnor an all-mighty law for
neutralization of old power networks and for democratic consolidation.
However, it may contribute to the pursuit of these aims, especiallyafter the
mere structuralchangesproved to be rather inefficient (Losand Zybertowicz
2000,219).Many problems cannot be solved by legal means alone, as crime
cannot be entirely uprooted by criminal law. There should also be other
laws that would remedy the identified mischief, such as conflict-of-interest
laws, a freedom of information act, an act on classified materials, a law on
the financingof political parties, and the regulation of private securitycompanies,
capital markets,privatization,weapons trade, and soon. More important,
the public should at least be aware of the past of those who legislate,
enforce, and apply these laws.
The comparison of the Czech and Polish lustration policies suggests
the relative success of the former within a few years following its approval.
This success may be a result of several factors. The Czech policy might be
more efficient in removing the old networks from their posts in comparison
to the Polish policy, which only facilitated discontinuity with the past conditionally.
Moreover, unlike the Polish lustration policy, which concerns
only secret policemen and their informers, the Czech policy removed also
the old communist nomenklatura. Finally, it may have been too late for Poland
to start this process, which took place a full 10 years after the breakdown
of communism.
Later, however, the significanceof the Czech lustration law decreased
as nomenklatura cadres adapted to its existence and created new networks
that enabled them to profit from the privatization process and weapons
trade. Nevertheless,the circumvention of the lustration law indicatesa good
direction. The international community should consider the promotion of
fair lustration (without excessive provisions and with proper enforcement)
in the same way it requires and encourages free elections.
With respect to recommendinga lustration model, the Polish lustration
act, regulated by criminal justice procedures, is certainly more developed,
and its concept of a second chance may be politically more acceptable in
divided countriesthan the Czech one. The Polish semi-reconciliatorymodel
has the potential to facilitate value discontinuity with the past and can be
applied alongwith a truth commission,which allowsthe narrow perpetratorcentered
character of the lustration truth to be widened. It can also contribute
to the unification of a divided country. The model, however, requires
the country to have human and material resources to carry it out. On the
other hand, the Czech semi-retributivelustration model, which is regulated
by administrative procedures, although eventually subjected to judicial review,
is more efficient in fulfilling its expectations and less demanding as
to its realization-for instance, in countries where a new elite wins the
power but inherits an administration that is loyal to the previous undemocratic
regime.
432 LAW AND SOCIAL INQUIRY
REFERENCES
Andrew, Christopher, and VasiliMitrokhin. 2000. The Sword and the Shield:TheMibokhin
Autorzy Rzeczpospolitej. 2000. Prezydent nie sklamal (President Did Not Lie). RzecQosBachmann,
Klaus. 1996. Cien pastora Gaucka nad Polska (The Shadow of the Pastor
Archive and the Secret History of the KGB. New York: Basic Books.
polita, 11 August.
Gauck Over Poland). R7eczpospolita, 23 January.
. 2000. Strach bez konca (Fear without an End). Rwczpospolita, 6 May.
Bacinsky,Stefan. 1991,Speech to Federal Assembly. In Federal Assembly of CSFR 1991
Baczynski, Jerzy. 2000. Alek i Bolek (Cover Names “Alek” and “Bolek”). Polityka
Battiata, Mary. 1991. East Europe, Hunts for Reds. Washington Post, 18 December.
Benda, Vaclav. 1991a. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017061/119.htm].
. 1991b. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[sO17076/119.htm].
Bilek,Jiri and Vladimir Pilat. 1995.Factory,Workers’and People’sMilitias in Czechoslovakia.
Historie a uojenstwi 44(3):79-106.
Blazek,Bohuslav. 1991.Afera Pithart versus Moldan (The Scandal of Pithart versus Moldan).
Respekt, 21 January, 8.
Boed, Roman. 1999. An Evaluation of the Legality and Efficacy of Lustration as a Tool
of Transitional Justice. ColumbiaJournal of Transnationalh w 37 (2):357-402.
Butora, Daniel. 1999.Proc jen neutekli ...(Why Did not They Run Away. ..). Respekt,
8 February, 15.
Cadre Orders of the Central Committee of the Czechoslovak Communist Party. 1984.
File no. UV 057/84. Quoted in P1. U S 1/92 (see list of statutes and cases, below).
CBOS. 1997.Lustracja-Problem spoleczny czy gra polityczna (Lustration-A Common
Problem or a Political Game). Komunikat No. 1708, 14 January.
. 1999. Oceny procesu lustracyjnego (Evaluations of the Lustration Process),
Komunikat No. 2206, 11 October.
Cepl, Vojtech. 1992.Ritual Sacrifices: Lustration in CSFR. East European Constitutional
Review 1(1):24-26.
. 1997. The Transformation of Hearts and Minds in Eastern Europe. The Cato
Journal 17(2). Available at http://www.cato.org/pubs/joumal/cj17n2-7.html.
Cepl, Vojtech, and Mark Gillis. 1996. Making Amends after Communism. Journal of
Democracy 7(4):118-24.
Cemy, Jiri. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[sol70741119.html.
Checko, Aleksander. 1999. Wymieta Rzeczpospolita (Crumpled Up “Rzeczpospolita”).
Polityka (19).
Chen, Huey-Tsyh. 1990. Theory Driven Ewaluations.Newbury Park, Calif.: Sage.
Cibulka, Petr. 1992.Kompletniseznamy spolupracovnikuStB 1-111. (The Complete Lists
of the Secret Police Collaborators). Rude krawo: Necenwrovanenowiny (13-15).
. 1999. Cibulkowy sewmy spolupmovnikuStB (Cibulka’s Lists of StB Collaborators).
Olomouc, Czech Republic: Votobia.
Cinnost zpravodajskychsluzeb SNS na uzemi Ceske republiky, in Vyrocni zprawa BIS CR
7arok 1998a I999 (Activitiesof the Information Servicesof the CIS in the Territory
of the Czech Republic: The Annual Report of the BIS CR for 1998/99). 1998-99.
Available at http://www.bis.cz/vz99/vrl0-2.html.
[s017077/119.htm].
(32).
Lustration Laws in Action 433
Constitution Watch. 1992-2002. East European constitutionalReview (quarterlycountry
Constitution Watch: Poland. 1997a. East European Constitutional Review 6(2-3).
reports).
. 1997b.East European Constitutional Review 6(4).
. 1999. East European Constitutional Review 8(3).
CNN. 2002. Cold War-Episode Scripts: Spies. Available at http://www.cnn.com/
SPECIALS/cold.~ar/episodes/21/script.html, visited on 29 October.
CTK. 1998. Kavan tvrdi, ze nevedel o clenech StB v CSSD (Kavan Insists He Did Not
Know About the [Former]Members of StB in the Social Democracy).Mlada fronta
Dnes, 7 September.
.2000a. Dalsi novinarka celi kvuli clanku trestnimu stihani. (Another Journalist
Faces Criminal Charges because of Writing). MIada fronta Dnes, 12 October.
.2000b. Havel Declines to Sign Amendments to ScreeningLaws. Czech Happenings,16
November.
.2000c. Former StB Officer Heads a FNM Department-Tyden. Czech Happenings,18
November.
. 2001a. Hundred StB Agents Received Negative Screening-Gross. Czech
Happenings,1June.
.2001b. NATO Lacks Info on Czech ScreeningAffair, Says It May Be Problem.
Czech Happenings, 5 June.
.2001c. Vnitro prislo celkemna 117 neopravnenychlustracnich osvedceni(Ministry
of the Interior Discovered 117 Unlawful Lustration Certificates).Ceske noviny,
2 August.
.2001d. Bill on StBFiles Declassification Could Succeed in Chamber.CzechHappenings,
9 August.
. 2001e. S uplnym odtajnenim svazku StB souhlasi polovina lidi (Half of the
Population Agrees with Full Declassification of StB Files), Ceske noviny, 23 Sep-
tember.
.2002. Havel Asks Kavan to Resign over Attempted Murder of Journalist[by His
Former Close Aide]. Czech Happenings, 23 July.
CTK and ZAH. 1998. Byvaly starosta Vidne Zilk nedostane rad TGM (Former Mayor
of Vienna Will Not Get TGM Award). Mlada fronta Dnes, 24 October.
Czech Republic in NATO: Czech, Poland, Hungary to join NATO March 12. 1999.
Radio Prague,15 February. Archives available at http://www.radio.cz/english.
David, Roman. 2002a. Transitional Injustice?The Czech Lustrationv. the Right to Expression.
Typescript, on the file with author.
. 2002b. In Exchange for Truth The Polish Lustration and the South African
Amnesty Process. Paper presented at the joint annual meeting of the Law and Society
Association and Canadian LSA, Vancouver, British Columbia.
Deak, Istvan,JanT. Gross, and Tuny Judt, eds. 2000. The Politicsof Retributionin Europe:
World War I! and its Aftermath. Princeton, N.J.: Princeton University Press.
Dicey, Albert V. 1959. Introduction to the Study of the Law of the Constitution. 10th ed.
London: MacMillan.
Drobny,Stanislav.2000. Author’sinterviewwith the head of the Confederationof Political
Prisoners in the Czech Republic, 21 January.
Economist. 2002. Hungary’s Ex-Spook Politicians. Economist, 17 August.
Explanatory Memorandum. 1996. In Report on Measures to Dismantle the Heritage of
Former Communist Totalitarian Systems. Committee on Legal Affairs and Human
Rights of the Parliamentary Assembly of the Council of Europe. Rapporteur: Mr
Severin. Doc. 7568, 3 June.
Farkas, Marian. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017060/119.htrn].
434 LAW AND SOCIAL INQUIRY
Federal Assembly of CSFR. 1991. 17th sess. Available at http://www.psp.cz/eknih/
1990fs/slsn/stenprot/O17schuz/.
Fisera, Ivan. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017060/119.htm].
Fisher, Sharon. 1997.Slovakia’sLustrationLaw no Longer in Effect. OMRI Daily Digest,
3 January.
Gebethner, Stanislaw. 2000. Author’s interview with Professor Gebethner, Department
of Political Science, Warsaw University, 25 January.
Goldsmith, Clara. 2000. Controversial Kavan Book Published. Radio Prague, 16 May.
Available at http://www.radio.cz/english/cur-affrs/16-5-00.phtml.
Gottesman, Knysztof. 1999.Lustracjaoficjalnaidzika (TheWild and OfficialLustration).
Rzeczpospolita, 17 April.
Groblewski,Kazimierz. 1999.Rosjanie mieli dostepdo wielu informacjio agenturze(Russianshad
Access to Much Informationabout the Networkof Informers).Rzeczpospolita,
24 March.
Grocki, Michal. 1992. Konfidenci sa wsrd m (Confidants Are among Us). Warsaw,
Poland: Editions Spotkania.
Havel, Vaclav. 1990a.New Year’sAddress to the Nation, 1January.Availableat http://
www.hrad.cz/president/Havel/speeches/index-uk.html.
. 1990b.Vyroci okupace Ceskoslovenskavojsky Varsavskehopaktu (Anniversary
of the Occupation of Czechoslovakia by the Warsaw Pact Armies). Available at
http:/ /www.hrad.cz/president/Havel/speeches/.
Hejl, Lubos J. 2002. Proc opravdu nemusite, Vaclave Klausi (You Do Not Really Have
To, Vaclav Klaus). Mlada fronta Dnes, 1 June.
HOP et al. 1998. Zilk zalobu podavat nebude (Zilk Will Not Sue). MIada fronta Dnes,
10 December.
Hromadko, Oldrich. 1990. Krach jedne koncepce (A Failure of One Conception).
Respekt, 4 April, 3.
Huml, Ondrej. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[sol7063/119.htm].
Huyse, Luc. 1995. Justice after Transition: On the Choices Successor Elites Make in
Dealing with the Past. Law and Social Inquiry 20(1):51-70.
IWM. 2000. Verejnost k lustracnimu zakonu (The Public Reaction to the Lustration
Act), 19 May.
Janyska, Petr. 1990. Komunalni volby (Local Elections). Respekt, 14 November, 5.
. 1991.Agenti a nova diplomacie (Agents and the New Diplomacy).Respekt, 19
Jelinek, Jaroslav. 1991. Jak se branit narceni (How to Defend Oneself from Gossip),
Jicin, R. 1990.Jeste k lustracim (Still about Lustrations).Respekt, 14 November, 3.
Jordan, JeffreyM. 2002a. Patronage and Corruption in the Czech Republic. Part 1. East
European Perspectives4 (4). Available at http://www.rferl.org/eepreport /2002/02/4-
200202.html.
.2002b. Patronage and Corruption in the Czech Republic. Part 2. East European
Perspectives4(51,Availableathttp://www.rferl.org/eepreport/2002/03/5-060302.html.
Kaplan, Karel. 1999. Nebezpecna bezpecnost: Statni be@ecnost 1948-56 (The Dangerous
Security: State Security in 1948-56). Bmo, Czech Republic: Doplnek.
Karpinski,Jakub. 1999. Pamiec o przeszlosci: lustracja (The Memory about the Past: Lustration).
Rzeczpospolita, 6 March.
Kauba, Krzysztof. 2002. Powolanie Rzecznika Interesu Publicznego (Assignment of the
Spokespersonof the Public Interest). Available at http://www.rzecznikip.gov.pl, visited
on 29 October.
August, 8.
Respekt, 3 January, 7.
Lustration Laws in Action 435
Kmenta,Jaroslav. 2000a. Kontrola vyvozu do rizikovych statu selhava (The Regulations
of Export to Risk States Fails). Mlada fronta Dnes, 28 February.
.2000b. Agroplast: obvineny se vratil (Agroplast:the Accused Returned). Mlada
fronta Dnes, 21 June.
Kobos, Andrzej M. 1999. Terror Komunistyczny v Polsce (Communist Terror in
Poland). Zwoje 6(19). Available at http://www.math.ualberta.ca/-amk/zwoje19/
textllp.htm.
Kopriva,Tomas. 1991.Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017070/119.htm].
Koudelka,Frantisek,Karel Kaplan,Frantisek Gebauer, R. Vyhnalek. 1993.Soudniperzekwe
politick powahy w Ceskoslowensku v letech 1948-1989: Statisticke udaje (Judicial
Persecutions of a Political Character in Czechoslovakra1948-1989: Statistic Overview).
Prague: Ustav pro Soudobe Dejiny.
Kritz, Neil J. ed. 1995.TransitionalJustice: How EmergingDemocracies Reckon with Former
Regimes. 3 vols. Washington, D.C.: US. Institute of Peace.
Kriz, Erich. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017066/119.htm].
Kroupa, Daniel. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017069/119.htm].
Kublik, Agnieszka, Jaroslaw Popek, and Robert Szulc. 1996. Co to sie porobilo (What
Happened, Interview with Lech Walesa). Gazeta Wyborcza, 2 February.
Kulan, Peter. 1991a. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017059/119.htm].
. 1991b. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017076/119.htm].
Kvasnicka, Ladislav. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR
1991 [sol7064119.html.
Laber, Jeri. 1992. Witch Hunt in Prague. New York Review of Books, 23 April, 5.
Larsen,Ross. 1998.The Trials,Trials,and More Trials of Jan Kavan. Prague Post, 22 July.
Law and Social Inquiry. 1995. SpecialIssue: Law and Lustration:Righting the Wrongs of
Leko, Istvan. 1991. Tyden ve FS (Last Week in Parliament). Respekt, 27 May, 4.
Lewis, T. Charlton, and Charles Short. 1879. A Latin Dictionary. Oxford, England:
Los, Maria. 1988. Communist Ideology, Law, and Crime. New York: St. Martin Press.
the Past. Law and Social Inquiry 20( 1):7-273.
Clarendon Press.
. 1995.Lustration and Truth Claims: Unfinished Revolutions in Central Europe.
Law and Socd Inquiry 20(1):117-62.
.2001. Post-CommunistCrimeTalk and the Commercializationof Security. Paper
presented at the joint annual meeting of the Law and Society Association and the
Research Committee for the Sociologyof Law, Budapest.
Los, Maria, and Andrzej Zybertowicz. 1999. Is Revolution a Solution?In The Ruk oflaw
After Communism, ed. Martin Krygier and Adam Czarnota, 261-307. Aldershot,
England: Dartmouth.
.2000. Priwati7jng the Police State:The Case of Poland. New York: St Martin’sPress.
Mateju, Petr, and Blanka Rehakova. 1997.Turning Left or ClassRealignment.East EuroMemorandum
on the Applicability of International Agreements to the Screening Law.
Michnik, Adam. 1993. Rozmowa z Vaclavem Havlem (Interview with Vaclav Havel).
. 1999. Lustracja blotem sie toczy (Lustration Mud). Gazeta Wyborcza, 23 Depean
Politics and Societies 11507-41.
1992. In Kritz 1995,3:335-45.
Gazeta Wyborcza, 17 July.
cember.
436 LAW AND SOCIAL INQUIRY
. 2000. 210 lustracji-odpowiedz na list premiera Jerzego Buzka (The Evil of
Lustrations: The Response to the Letter of the Prime Minister Jeny Buzek). Gazeta
Wyborcza, 14 September.
Michnik, Adam, and Vaclav Havel. 1993. Confronting the Past: Justice or Revenge?
Journal of Democracy 4(1):20-27.
Misztal, BarbaraA. 1999. How Not to Deal with the Past: Lustration in Poland. Archives
Europeennesde Sociologie 40(1):31-55.
Mlynar, Vladimir. 1992.Umely problem (Artificial Problem). Respekr, 11 May, 3.
Mlynarik, Jan. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017062/119.htm].
Naegele, Jolyon. 1997a. Slovakia:Ties To Moscow Strengthen; Relations With Brussels
Strained. RFE/RL, 22 May. Availableat http://www.rferl.org/nca/features/1997/05/
F.RU.970522150226.html.
. 1997b. Slovakia: Intelligence Service Reverts to Communist-Era Practices.
RFEIRL, 29 May. Available at http://www.rferl.org/nca/features/l997/05/F.RU.
970529133316.html.
. 1999. Slovakia: Three Prominent Personalities Seek Presidential Position.
RFE/RL, 13 April. Available at http://www.rferl.org/nca/features/1999/04/F.RU.
990413131009.html.
Navara, Ludek, and Pave1 Baroch. 2001. Zakon proti minulosti: Ani PO deseti letech
nesplnil lustracni zakon to, co se od nej ocekavalo (Lawagainst the Past: Lustration
Law Has not Fulfilled Expectations even after Ten Years). Mlada fronta Dnes, 4
October.
Necas, Vladimir. 1990. “Samuraj,”“Rudolf’a “Reporter”(Cover Names “Samurai,”“Rudolf,”
and “Reporter”).Respekt, 12 December, 8.
Nemecek, Tomas. 1999.Falesny Svycara pet kulometu (AFalse Swissand Five MachineGuns).
Respekt, 22 February, 15.
Novick, Peter. 1968. The Resistance Versus Vichy: The Purge of Collaborators in Liberated
France. New York: Columbia University Press.
Olszewski, Jan. 1995. Interviewed in Pawel Reszka and Marcin D. Zdort, Lustracja jak
bumerang (Lustration as a Boomerang).Rzeczpospolita, 29 July.
Olszewski,Krzysztof. 1996.Lustracjacorazpopularniejsza(LustrationMore and More Popular),
Rzeczpospolita, 16 November.
PAP. 2002a. Ustawa lustracyjna trafila do Trybunalu Konstytucyjnego (Lustration Law
Arrives at the Constitutional Tribunal). Driennik Internetoq PAP, 5 March.
.2002b. Pis: Projekt Dezyderatu ws. Odwolania Wiatra (Law and Solidarity:The
Projectof Desideratumfor the Dismissalof [thePolish-EUNegotiator]S.Wiatr [who
revealed his collaboration]). Driennik Internetowy PAP, 3 September.
.2002c. Kwasniewski: Podpisze nowelizacjeustawy lustracyjnej (President Kwasniewski:
I Will Sign the Amendment to the Lustration Law). Dziennik lntemtowy
PAP, 9 Oct.
Paradowska,Janina. 1999a. Prawda ukarana (PenalizedTruth). Polityka (11).
.199913Loteria teczkowa (Lottery of Files). Polityka (20).
.2001. Czysta sympatia (Clear Sympathy). Pofityka (9).
Pecina, Tomas. 1998.Jan Kavan: Lhal jsem a jsem na to hrdy (JanKavan: I Lied and 1
Am Proud of It). Briuke listy,28 July. Available at http://www.britskelisty.cz/9807/
19980728d.html.
Pehe, Jiri. 1991. Parliament Passes Controversial Law on Vetting Officials. Report on
Eartern Europe, 25 October. Available at http://www.pehe.cz/Clanky/25Octo-
her1991RFERL.pdf.
Pergler,Jan, and Jiri Kubik. 1998. Grulich a Kavan se Hradu prilis nezamlouvaji (Office
of PresidentIs Not Too Keen about Grulich and Kavan). Mladafronta Dnes, 11July.
Lustration Laws in Action 437
Petrova, Jana. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
[s017078/119.htm].
Pion-Berlin, David. 1994. To Prosecute or to Pardon? Human Rights Decisions in the
Latin American Southern Cone. H u m n Rights Quarterly 16(1):105:30.
Plavec, Michal. 1999.Radnice vyznamenalamuze, ktery je podezrely ze spolupraces StB
(A Town Hall Awarded a Man Who Is Suspected of Collaboration with the Secret
Police). Mlada fronta Dnes, 9 March.
Pode Bal. 2000. Malik urvi: Galerie etablovane nomenklatury (Little as Holes: The Gallery
of the Established Nomenklatura) [Mali kurvi (Little Assholes)]. Available at
http://www.iregion.cz/galerie/malikurvi/maLur.html.
Prehled pripadu vysetrovanych Policii CR Uradem pro vysetrovani zlocinu komunismu.
. . . (An Overview of Cases Investigated by the Office for Investigation and
Prosecutionof the Crimesof Communism). 2001. Available at http://www.mvcr.cz/
policie/udv/prehledl.html,as visited on 5 December.
Radio Prague. 1999a. Former Slovak Intelligence Chief Sought to Hinder Czech Accession
to NATO. Radio Prague E-News, 16 February.
. 1999b. Slovakia to Apologize to Czechs?Radio Prague E-News, 18 February.
.1999c.Former SlovakCounter-Intelligence Chief Monitored KovacJr.’sAbduc.
1999d. Slovak Minister’sAlleged Collaboration with StB under scrutiny. Radio
Ransdorf, Miloslav. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR
Remias, Ivan. 2000. Kavan under Fire. The Prague Post, 24 May.
Report of the Committee Set Up to Examine the Representations Made by the Trade
Union Associationof Bohemia,Moravia,and Slovakiaand by the Czech and Slovak
Confederationof TradeUnions under Art. 24 of the ILO Constitution allegingNonobservance
by the CSFR of the Discrimination (Employment and Occupation)
Convention 1958 (No.lll). 1992. (Report of the ILO Committee). ILO Official
Bulktin 75 (Supp. 1, series B).
Report of Parliamentary Commission of November 17. 1991.Reprinted in Kritz 1995,3:
307-11.
Resolution 1096on Measures to Dismantlethe Heritageof Former Communist Totalitarian
Systems. 1996. ParliamentaryAssembly of the Council of Europe. Doc. 1096.
Available at http://assembly.coe.int/Main.asp?link=http%3A%2F%2Fassembly.
coe.int%2FDocuments%2FAdoptedText%2Fta96%2FERES1096.htm.
tion. Radio Prague E-News, 19 February.
Prague E-News, 5 March.
1991 [s017066/119.htm].
Romaszewski,Zbigniew. 1991. Polish Senate 153, 190. Quoted in Los 1995, 127.
Rosenberg,Tina. 1995.The Haunted Land: FacingEurope’s Ghosts after Communism. New
Ruml, Jan. 1990. Kdo koho kryje?(Who Hides Whom?). Respekt, 18 April, 3.
Rutman, Leonard ed. 1977. Evduution Research Methodology: A Basic Guide. London:
Rynda, Ivan. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
S.,J. 1990.Ti frajeri se dnes smeji (These Arrogant Guys are LaughingToday). Respekt,
Rzeczpospolita. 2002. Najszczesliwszy dzien Mariana Jurczyka (The Happiest Day of
Samalik, Frantisek. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR
Schneider, Jiri. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
York: Random House.
Sage.
[s017076/119.htm].
4 April, 2.
Mariana Jurczyk).Rzeceospolita, 3 October.
1991 [SO17069/119.html.
[s017073/119.htm].
438 LAW AND SOCIAL INQUIRY
Schwartz,Herman. 1994. Lustrationin Eastem Europe. Parker SchoolJoudof East European
Law l(2). Reprinted in Kritz 1995, 1461-83.
Sedlak, Gabriel. 2001. Lustracie v postkomunistickych krajinach (Lustrations in PostCommunist
Countries), RFEIRL. Availableat http://www.rferl.org/bd/sl/slovak/sl-
ascii/archiv/000814.html~kotva5.
Spumy, Jaroslav. 1990. Sef (The Boss). Respekt, 27 June, 3.
.1991.Konec moralni politiky (The End of the Moral Politics). Respekt, 26 August,
5.
. 1998. Kavan, Grulich, Doucha: Tri esa s pestrou minulosti (Kavan, Grulich,
Doucha: Three Aces with a Colorful Past). Respekt, 20 July, 4.
Spumy, Jaroslav,and Martin Kontra. 1998. Manazeri Czech Made: Jak novi kapitaliste
uspesne privatizovalia neuspesnehospodarili (The Czech-MadeManagers: How Did
the New CapitalistsSuccessfully Privatizebut Unsuccessfully Manage?).Respekt, 13
July, 9.
Stehlik, Otto. 2000. Author’s interview with head of the Archive of the Confederation
of Political Prisoners, 18January.
Stroehlein, Andrew. 1998. Prague, Algiers, Brussels. Britske listy, 9 Mar. Available at
http://www.britskelisty.cz/9803/19980309d.html#03.
Sulc, Ales. 2001. Information on Issued CertificatesAccording to the Lustration Laws.
Letter to author from the head of the Security Department, the Ministry of the
Interior of the Czech Republic, C.j.: BO-83/PL-2001,1 March.
Sykorova,Jasna. 2000. Martin Roman’s ToughestChallenge. The Prague Post, 5 January.
Teitel, Ruti G. 2000. TransitionalJustice. Oxford, England: Oxford University Press.
Tucker,Avizier. 1999.ParanoidsMay Be Persecuted:Post-totalitarianRetroactiveJustice.
Archives Europeennes de Sociologie 40(1):56-100.
US. Department of State. 1996-99. The Slovak Republic Country Report on Human
Rights Practices for 1995-98.
Vachalovsky, Premysl, and John Bok. 2000. Kato: Pribeh opravdoveho cloveka (Cover
Name “Kato:” A Story of a Genuine Person). Olomouc, Czechoslovakia: J. W.
Hill.
Vladimir Putin Bio. 2002. ABC News. Available at http://abcnews.go.com/reference/
bios/putin.html, 29 October.
Walesa, Lech. 1997. Lustracja czy gabinet luster (Lustration or a Cabinet of Mirrors).
Poland Outlook. Available at http://www.masterpage.com.pl/outlook/walesa
14.html.
Wasilewski,Jacek. 1995.The Formingof the New Elite:How Much Nomenklatura is Left?
Polish Sociological Review (2), quoted in Los and Zybertowicz 1999, 285.
.2000. Polish Post-TransitionalElite. In Second Generationof Democratic Elites in
Centraland EasternEurope, ed. Janina Frentzel-Zagorska andJacekWasilewski,197-
205. Warsaw: Institute of Political Studies, Polish Academy of Science.
Williams,Kieran. 1999.A Scorecard for Czech Lustration.Cenrral Europe Review 1(19),
1 November. Available at http://www.ce-review.org/99/19/williams19.html.
Woyciechowski,Piotr. 1997.To nie jest lustracja (This Is not a Lustration). Rrec@spolita,
11 April.
Wyciag z informacjio dzialalnosciRzecznika Interesu Publicznego in 2001. (Extractfrom
Information on the Activity of the RIP in 2001). 2002. Available at http://
www.rzecznikip.gov.pl/.
Zacek, Pavel. 2000. Boje o minulost (Strugglesfor the Past). Bmo, Czech Republic:Barrister
and Principal.
Zalaquett, Jose. 1992. Balancing Ethical Imperatives and Political Constraints: The Dilemma
of New DemocraciesConfronting Past Human Rights Violations. Hustings
Law Journal43:1425-38.
Lustration Laws in Action 439
Zeman, Milos. 1991. Speech to Federal Assembly. In Federal Assembly of CSFR 1991
Zybertowicz,Andrzej. 1993.W Uscisku TajnychSlusb (Inthe Embrace of Secret Services).
[s017067/119.htm].
Komorow, Poland: Antyk.
STATUTES AND CASES
Act from 5 July 1996on Civil Service, Dz.U.96.89.402 (Poland).
Act from 11 April 1997,on the revealing of work or service in state security organs or
of collaborationwith them between 1944and 1990by persons holding public positions
(Polish Lustration Act) in the version of amendments Dz.u.99.42.428,
Dz.u.99.57.618, Dz.u.99.62.681, Dz.u.99.63.701, Dz.u.00.43.488, Dz.u.00.50.600.
Act no. 451/1991 Sb., which prescribes certain prerequisitesfor the exercise of certain
positionsfilled by election, appointment, or assignmentin state organs and organizations
of CSFR, CR, and SR (Czech LustrationAct).
Ahmed v. United Kingdom, 29 Eur. H.R. Rep. 1 (1998).
Glasempp v. Germuny, 9 Eur. H.R. Rep. 25 (1986).
Leande~v. Sweden, 9 Eur. H.R. Rep. 433 (1987).
Lingens v. Austria, 8 Eur. H.R. Rep. 407 (1986)
P1. US 1/92. 1992. Judgment of the Constitutional Court of the CSFR, 26 November.
PI. U S 9/01.2001. Judgmentof the Constitutional Court of CR. 5 December. Available
Sygn. K. 24/98. 1998.Judgment of the Polish Constitutional Tribunal, 21 October.
Sygn. K. 39/97. 1998. Judgment of the Polish Constitutional Tribunal, 10 November.
Vogt v. Germany, 21 Eur. H.R. Rep. 205 (1995).
Available at http://www.concourt.cz/angLver/decisions/doc/p-1-92.html.
at http://~~~.~on~0~rt.cz/angLverze/doc/p-9-01.html.