Transitional justice Lustration, Secret Police Files, and Rehabilitations JUSTIN Judicial Studies Institute Masaryk University Katarína Šipulová Brno, š3 November 2021 CEE Transitions •vlád Bulgaria -Ideal totalitarian rigid regime (Zivkov, very close to USSR) -Marginalised opposition -Coup d’etat inside of the communist party -> round table talks under the communist party leadership (Petar Mladen) -Summer 1990: election, but! No pluralist democracy - Romania -Last democratizing state of CEE -Regime: combination of totalitarianism and sultanism -Ceausescu’s regime -Bloody transition -No opposition, no possibility of a negotiated transition -A lot of external pressure -Ion Illiescu CEE Transitions •vlád Romania -1. Low political institutionalization and mobilization -2. Communist party is able to preserve its influence -3. Interconnection of communist (socialism) and nationalism CEE Transitions •vlád Poland •Democratization without de-communisation •Spanish model, thick line behind the past •Regime: corrupted clientelism •Opposition relatively well organised in 1980s (Solidarity – Polish United Workers’ Party) •Martial law in 1983 •Round-table: ruptura pactada (Mazowiecki) •Jaruzelski attempts to keep the legitimacy, democratic elite is divided in how to transit -> in the end, the communist party is stabilised in the new democratic regime • •Contracted election comes as a surprise to the communist party, however, it is exhausted •New PM Mazowiecki: thick line between the present and past (worried to jeopardize the agreement reached at the round table). Also, the first country to transit – he does not want to issue a negative signal of retaliation to Moscow CEE Transitions •vlád Czechoslovakia -Harshest episode of the regime: 1950 -Different in Slovak and Czech part -250 000 people sentenced for political reasons during 1948-1989, half of those in absentia -Executions, prisons, labour camps, uranium mines - -Prague spring 1968 – socialism with a human face / Warsaw Treaty army interventions and again, purges -Jan Palach - -Charter 77 in December 1976: 239 signatories, 8 were Slovaks CEE Transitions •vlád East Germany: -The core question of unification: -What to do with the files, documents and information collected by Stasi? -Stasi: around 100 000 employees (plus secret agents plus collaborators) -The sword and the shield of the communist party -Part of the documentation destroyed in the last year of GDR Core principle: Vergangenheitsbewaeltigung - developed already after 2WW - who forgets his own past will repeat it Lustration and vetting •vlád Lustratio Most frequently used and most controversial mechanism of CEE transitions “[a] broad set of parliamentary laws that restrict members and collaborators of former repressive regimes from holding a range of public offices, state management positions, or other jobs with strong public influence (such as in the media or academia) after the collapse of the authoritarian regime” - Broader sense: also opening of secret police archives and establishment of national memory institutes -The word lustration originates from the Latin lustratio, denoting an act of sacrifice, but also of purification -cleansing of state institutions of the crimes committed by the previous regime, and the uncovering of the true scope of persecution carried out by the communist party’s repressive forces, as well as the extent of public collaboration with these forces Lustration and vetting •vlád •Vetting and screening of state institutions •Particularly important in the first phase of transition (when GOV bodies lack sufficient legitimacy and trust) • •Most radical lustration programmes: Czechoslovakia and East Germany •Accusation-based lustration •Positive confirmation leads to exclusion from public policy life •Targets mostly former higher ranked communists and secret agents •Spread of the mechanism to Bulgaria and Albaniia -> positive confirmation: loss of employment (connection with Comm Party or secret services) •Hungary and Poland: only 1994, 1997 • Strategies of Lustration Extensive differences among CEE states. •CSR, GDR, Albania = wide-reaching personnel cleansing of society •HUN, POL, Lithuania, EST = truth-seeking and memory-building •Confession = option to stay and continue political activity • •What is the positive of a confession system? Avoid the blackmailing practices Strategies of Lustration Roman David: what are the theoretical and moral objectives of lustration? Exclusive (Czechia) Inclusive (Hungary) Reconciliatory (Poland) Why do states differ? Exclusive: temporary elimination of persons accused of collaboration from public policy Inclusive: uncovering the truth about the past engagement Reconciliatory: re-integration of these people without the stigma But all aim at purification of the society of past communist legacies Strategies of Lustration Horne and Levi 1. As interparty competition increases in intensity, legislators will attempt to expand the scope and duration of lustration laws (a) unless socialist (…) parties come to power (b) unless there is evidence of popular voter rebellion toward the continuation of lustration laws 2. The greater the insulation of constitutional courts from politics (a) the less likely it is that lustration laws will be extended (b) the more likely that these laws will be declared unconstitutional or otherwise limited in scope 3. The greater the pressure from important international bodies, the more likely it is that a cross-party coalition will form to end lustration. Strategies of Lustration Nalepa: Skeletons in the closet: if post-communist anticipated losing power to anti-communist forces, under sufficiently restrictive parliamentary procedures, the post-communist could shield themselves from excessively harsh legislation by pre-emptively passing a less punitive version of lustration than the anti-communist would have. On the other hand: democratic opposition might sometimes fear the lustration Przeworski: CEE communist at the end of 1980s preferred transitions in which they could continue in their political careers opposed to where they were completely deprived of power Strategies of Lustration Roman David 2015 Retribution – Revelation - Reconciliation Exclusive: temporary elimination of persons accused of collaboration from public policy Inclsive: uncovering the truth about the past engagement Reconciliatory: re-integration of these people without the stigma But all aim at purification of the society of past communist legacies Czechoslovak lustration Generally: 1.The Federal parliament HAD the legitimacy to implement lustration RIGHT AFTER the revolution 2.The most excessive parts were removed by the Constitutional Court 3.Twice prolonged: 1995 and 2000: contrary to the Rule of Law? Avoid the blackmailing practices Czechoslovak lustration Two lustration acts 1.Large lustration Law 1991 2.Small lustration law 1992 (targeting only members of police and prison guards) 3. Reasons -Disruption of personal continuity -National security -Protection of rights -Truth revelation -Protection of territorial integrity -Public trust Avoid the blackmailing practices Czechoslovak lustration Negative list of function = protected positions (selection to these functions requires lustration certificate) Positive list of persons = who, because of his or her past activity, is required to hand in the lustration certificate -any functions requiring election, appointment to public offices, army, secret intelligence, police, Presidents’ office, Czech TV, state companies, Universities, judiciary -!!! Not the Parliament -Persons: StB, high functionnaires of Communist party, people’s militia, committee of National Front, normalization committees, any governmental executive bodies Avoid the blackmailing practices Czechoslovak lustration The mechanism: -Candidates to functions are required to hand in lustration certificate -Positive = exclusion from the list of candidates, or the termination of standing contract -Time limit: 5 years: temporary protection of the new democratic regime -, Avoid the blackmailing practices Czechoslovak Constitutional Court on Lustration (Pl. US 1/92 of 26 November 1992) A democratic state has not only the right but also the duty to assert and protect the principles upon which it is founded. Thus, it may not be inactive in respect to a situation in which the top positions at all levels of state administration… were filled … with the now unacceptable criteria of a totalitarian system. Of course, a democratic state is, at the same time, entitled to make all efforts to eliminate an unjustified preference enjoyed in the past by a favored group of citizens …where such preference was accorded exclusively on the basis of membership in a totalitarian political party… Avoid the blackmailing practices Czechoslovak Constitutional Court on Lustration (Pl. US 1/92 of 26 November 1992) Thus, even in light of the state's above-indicated convention and treaty commitments, the state cannot be denied the right to set down precisely defined requirements for persons employed in selected categories at worksites, in positions, or in activities that are significant for the protection of the democratic constitutional system, the security of the state, its economic and political interests, or the protection of state secrets, or for those persons who lack the level of loyalty toward the state which is required, or who might, in the positions they are performing, have a considerable impact on public affairs Avoid the blackmailing practices Czechoslovak Constitutional Court on Lustration (Pl. US 1/92 of 26 November 1992) Still, a couple of controversial provisions quashed down -Competences of minister of inferior to exclude some people from lustration -To exclude unknown collaborators (written proof) -Inserted requirement of a fair trial (access to a judicial review) Avoid the blackmailing practices Czech Constitutional Court on Lustration Lustration II (Pl. ÚS 9/01 of 5 May 2001) Determination of the degree of development of democracy in a particular state is a social and political question, not a constitutional law question. Thus, the Constitutional Court is not able to review the claim of “culmination” or, on the contrary “non-culmination” of the democratic process by the means which it has at its disposal. However, it can, in some agreement with the petitioners, confirm that the public interest resting in the state’s needs during the period of transition from totalitarianism to democracy have declined in intensity and urgency since 1992. Avoid the blackmailing practices Czech Constitutional Court on Lustration -A democratic state, AND NOT ONLY IN TRANSITIONAL PERIOD, can tie the entry into public services to specific prerequisites, particularly political loyalty -Loyalty must be interpreted by two methods. It covers the level of loyalty of each individual active in public services, and level of loyalty of the public services as a whole -Not only whether these are loyal, but whether they appear as loyal to the public. Doubts would undermine public confidence in the democratic regime -The CCC… considers the closer connection of persons with the totalitarian regime and its repressive components to still be a relevant circumstance which can cast doubt on political loyalty and damage the trustworthiness of the public services of a democratic state and also threaten such a state and its establishment Avoid the blackmailing practices Lustration and vetting •vlád Criticism: -International institutions -Infringement of fundamental rights (passive voting rights, principles of democratic regimes) -Incomplete documentation of Communist Secret Police -Prohibition of discrimination -Right to a fair trial -Unclear effect on democratization Strategies of Lustration Jan Kavan case – a witch hunt? Poland The first country to transit from communism and last to enact lustration First proposal already in 1992 – thick line after the past Act of 11 April 1997: elimination of positively lustrated persons for 10 years New, harsher amendment of 2007: quashed down eventually by Constitutional Tribunal ECtHR and Lustration Castells v Spain The first case only in 2004, Sidabras a Džiautas v Lithuania -Collaborants with KGB -Excluded from public and private sector functions -ECtHR: such a construction interferes with the protection of private life and establishes discrimination -The legislation came too late , ECtHR and Lustration Zdanoka v Latvia -Free elections -The candidacy to Parliament impossible due to participation on the communist party activities after 13 January 1991 -Legitimate as a protection of democracy, but needs to be temporary - Turek v Slovakia -The length of proceedings, the fair trial -The lustrated person needs to have an access to the file, even if this is classified as top secret - Matyek v Poland -Lustration can be reviewed as a criminal measure under Article 6 -MP denies collaboration with secret services. Polish courts argue a “lustration lie” and forbid him to candidate for a function for 10 years , ECtHR and Lustration Core principles -1. Lustration certificate can interfere in the private life -2. The private and public sector needs to be differentiated -3. Late legislation impacts how court reviews the proportionality of the measure -4. Access to elected function vs removal from a function -5. Right to a fair trial -6. Other procedural safeguards - , ECtHR and TJ generally Access to Secret Files and National Memory Institutes •vlád -Why alternative justice? - -Legal v political justice -Internal (domestic) -Retribution v restoration -Individual criminal liability v reconciliation -Restrictions: blackmailing of politicians, manipulation Meaning of Truth in TJ •vlád -Right of victims to know the truth -Official acknowledgment: part of the regime reform -Establishes new RoL -Conditions prosecutions and other reparatory programmes -Insight into question why violence happened -Hannah Arendt: nature of totalitarian regimes and their domination over our lives -It is only through generating such understanding that the horrors of the past can effectively be prevented from occurring again. Knowledge and understanding are the most powerful deterrents against conflict and war (SL TRC) -Restrictions: blackmailing of politicians, manipulation Meaning of Truth in TJ •vlád Commission of inquiry Court proceedings Truth commissions Historical commissions - goals, methodologies, mandates, tools -Restrictions: blackmailing of politicians, manipulation Meaning of Truth in TJ •vlád Court proceedings: legal approach, determine the culpability of perpetrators, aim: establishment of punishment. TRCs: much broader inquiry, provide narrative of the abuses during certain historical period. Typically, they have mandate to establish an authoritative and historically accurate record of the past Historical commission: address events of the past affecting specific ethnic, racial, other groups. They are not part of political transitions, might not even deal with current issues Tasks of TRCs •vlád •Historical account of the past •Overcome communal and official denial of the atrocity •Identify victims •Certify whether applicants qualify as victims to obtain reparations •Identify the architects of the past violence •Restore dignity to victims, promote psychological healing •End and prevent violence •Legitimate and promote the stability of the new regime •Educate the population • forge the basis for a democratic political order that respects and protects R •Recommend ways to deter future violations and atrocities •Determine eligibility of applicants for amnesty -Restrictions: blackmailing of politicians, manipulation Tasks of TRCs •vlád •Limitations •What is the truth / confirmation of beliefs about the past •How to find objective truth •Do we really want to establish the truth? • •How to reconcile the truth with the lack of prosecutions? • •The truth is so commonly used that it seems to be a transparent notion, clear to all who are involved or interested in redressing past abuses, but ‘truth’, like ‘justice’ and ‘reconciliation’ is an elusive concept that defies rigid definitions (Parleviet 1998) • •Cultures vary in how they approach and value truth telling -SL: many factors discouraged those testifying at the hearing from telling the truth. Special circumstances of particular district where the hearing was held, confusion between the TRC and SCSL Access to Secret Files and National Memory Institutes •vlád - -Truth and reconciliation committees -Temporary mandate -Financing? (GOV, PARL, UN, NGOs) -Independence -Investigation Access to Secret Files and National Memory Institutes •vlád -East Germany (1990), Hungary (1994), Estonia (1995), the Czech Republic (1996), Bulgaria, Poland (1997), Romania (1999), Slovakia (2002), Lithuania (2006), and Latvia (2007). - -In combination with lustration shifts closer to retributive measures -Access to individual files vs access to all files -Reason for restrictions? -Access for historians? De-communisation memory institutes •vlád -Trustworthiness and reliability -Aim of documentation they collect: control of society -Incomplete -Politicization -The only independent institute: Gauck’s committee in GDR -Limited power of government -The file is not enough to lead to prosecution/punishment -Act allowing the access of individuals to their own files Access to Secret Files and National Memory Institutes •vlád -Access is administered by specialized state agencies: national memory institutes -To collect, research, and provide information on past crimes -More common for ruptura pactada form of transition -Compared to TRC, they have more often a repressive character/function -Biggest issue: millions of files in GER, ROM, CR – lost or shredded, rest unreliable, with communist secret agents deliberately fabricating the stories. -Negotiated transition East Germany •vlád -Joachim Gauck, federal commissioner for Stasi files -Knowledge and power of individual citizens -Truth instead of vindication -Right to access one’s files, instigation of criminal prosecution, uncovering the collaborators -Compared to the rest of CEE, quite reliable -Most ppl agreed that files should be available to the government agencies for criminal investigations. More difficult question: to what extent should files be available to ordinary citizens, researchers, press -Big influence: experience with Nazi period and mistakes in addressing it -Historical understanding of the GDR. Also, allowing the citizens to comprehend their past, truth about the invasiveness into their lives -Destroying the files – equivalent to construvting the new east German society on a lie -Plus fear of former Stasi employees capitilizing on what would be their unique past access to the file -But: widespread opining might lead to rifts in society -Positives: prof of discrimination, claim for rehabilitation and compensation -Possibility ot prove one’s innocence -The degree of extraordinary survaillence under Modrow and de Maiziere -1989 revolution: stasi – focus of political attack, fears – and alarm by black clouds of smoke rising from the inner courtyards of Stasi complexes. Citizens committees egan to occupy Stasi offices around the GDR in late 1989 -15 January 1990 culmination- demonstrators bursted into central Stasi eadquarters in Berlin. Many now believe this was intentionally prooked y Stasi itself, as a diversionary tactic. It led to a creation of Citizens Committee Normannenstrasse – sought to assure that the Stasi was actually being dissolved -Round tables: stasi files should be ssealed off from access. Major issue during the round table talks -Aiziere government of 1990: praise the work of citizens, but announced that now the gov’s commission would fuide the dissolution of Stasi. -Tension -Parliament therefore formed its won committee chaired by Joachim Gauck, pastor from Rostock and PM Das Leben der Anderen •vlád -1984, Stasi Gerd Wiesler is ordered to spy on the playwright Georg Dreyman, famous for his Communist views and international recognition - - -Negotiated transition Bulgaria •vlád -Panev’s Act -Anti-communist legislation as a break against reformed communist elites -12/1992: lustration -Negotiated transition Hungary •vlád -Ministry of Justice -Documents pre-1956 events -House of Terror House of Terror Museum - CulturalHeritageOnline.com -Negotiated transition Romania •vlád -No lustration until 2007 -Most progressive part of TJ: access to documents -National council for the study of Securitate archives -Questionable authenticity -Too many procedural issues -Negotiated transition Poland •vlád -Instytut Pamieci Narodowej 1998 -Investigates Nazi and communist crimes -Access of public to secret documents -First publicly accessible files: 2000/2001 -Leak of information in 2005: journalist Bronislaw Wildstein -is a former Polish dissident, a journalist, freelance author and, from 11 May 2006 to 28 February 2007, was the chief executive officer of Telewizja Polska (Polish state-owned television). Wildstein rose to nationwide prominence in Poland in January and February 2005, after he smuggled files on informers and victims of the former communist secret police (Służba Bezpieczeństwa) from the Institute of National Remembrance (IPN) and distributed them to fellow journalists.^[1] The files are commonly referred to as "Wildstein's list“ In his books and essays, Wildstein has strongly argued for a thorough review of the communist past not only of politicians, but of all of Polish society. However, a comprehensive vetting of public figures regarding contacts with the oppressive former communist apparatus has, after delays, been carried out only to a limited extent and with rather inconsequential results. Ever since the fall of communism, the question of vetting (lustracja) has been a bone of contention among political camps that emerged from the former anticommunist opposition. One side – prominently represented by Adam Michnik and his Gazeta Wyborcza, the country's largest daily – calls for a comprehensive reconciliation between former operatives and opponents of the Polish People's Republic by symbolically drawing a "thick line" (gruba kreska) demarcating the communist period from the present period, without seeking retribution. Opponents of this approach criticize it as too propitiatory and call for a morally rigorous approach, with thorough vetting of all persons in leading positions in politics, business, and the media who were born before 1972. In the vetting controversy, Wildstein has denounced the "thick-line" proposal and has uncompromisingly advocated for screening, even at the expense of social peace. Wildstein has helped uncover a prominent secret-police informer: Lesław Maleszka, a journalist with the anti-vetting liberal daily, Gazeta Wyborcza, and a former schoolmate and close friend of Wildstein's who had reported on the oppositional Student Solidarity Committee (see above) which he had co-founded with Wildstein. Maleszka has been implicated in the mysterious death of Stanisław Pyjas. In early 2005, the vetting debate reached a peak after Wildstein had abstracted an inventory of the files stored at the Institute for National Remembrance (IPN) which also manages the files of the former secret police, colloquially known as teczki in Polish. The list contained nothing but the names of roughly 240,000 persons on which such a file exists. Wildstein burned this inventory to CD-ROMs and took it to the offices of his employer, the daily Rzeczpospolita, from where he distributed it among colleagues. Soon afterwards, the list was made available on several anonymous websites, which soon attracted a lot of traffic. Until then, access to files for the general public had been restricted. Public debate began when Rzeczpospolita's rival, the anti-vetting Gazeta Wyborcza reported that Wildstein had copied and distributed the inventory. One cause for irritation was the fact that the list contained only names of persons with no information on whether they were informers or victims; not to mention the fact that the practice of totalitarian regimes often renders it difficult or impossible to distinguish collaborators from victims. Czechia •vlád -Úřad dokumentace a výzkumu (Úřad pro dokumentaci a vyšetřování činnosti StB) -More than 280thousand individuals convicted under communist regime -234 executions -300 deaths in prisons -176 shot at borders -88 electric current (torture) -300 thousand persecutions (work, study) -Negotiated transition Czechia •vlád -Úřad dokumentace a výzkumu (Úřad pro dokumentaci a vyšetřování činnosti StB) -Originally part of the Ministery of interior, investigates mostly members of secret police (StB) -„None of us here needs the criminal trials, especially not with people at the verge of their lives. What we all do need, however, is the history to document and publish.“ (general prosecutor Šetina) -Created in 1995, tasked to address all petitions on politically motivated crimes and initiate criminal prosecutions of respective people -Negotiated transition Czechia •vlád -In 2008, 192 prosecuted in 98 criminal cases, 30 sentences, 8 conditional sentences -Documentation and criminal investigation, should lead to individual criminal accountability - -In 2002: public access to archives established -In 2007: Ústav pro studium totalitních režimů -Studies period of 2 ww and communist regime -Completely independent, took over UDV, however, without the obligation to instigate criminal prosecutions - -Negotiated transition Posun z B do A: fragmentace stranického nebo institucionálního systému, vyžaduje flexibilní ústavy Posun z D do C: federalismus, stabilizace režimu, důvěryhodnost Posun z D do A: tranzice, změna režimu Clash between TJ and HR Transitional Justice introduces a different logic of punishment and reparation, often at odds with general conceptions of HR and international HR commitments Lustration: passive voting rights, employment rights Access to secret police files: right to privacy Condemnation of political parties: deformation of the free political competition Reparations: arbitrary infringement on property rights. Who is to solve these conflicts? Newly established constitutional courts Role of courts in transitions •vlád Why are elites wiling to constrain their power? Why are constitutional courts different in terms of independence, jurisdiction, competences and effectiveness? Symbolic role (Hirschl, Schwartz) •Separation of powers •Rechtstaat •Written catalogues of HR •Agents of change • • •Ramseyer •A mean to conclude longeterm contracts of political parties and their voters •If a high probability of future independent parliamentary elections •If a low probability that current government easily wins next independent parliamentary elections Ginsburg – insurance theory (democratization might lead to a loss of power + CC is a guaranty for minorities’ rights) Veto player theories Constitutional court No constitutional court Democracy A B Non-democracy C D Posun z B do A: fragmentace stranického nebo institucionálního systému, vyžaduje flexibilní ústavy Posun z D do C: federalismus, stabilizace režimu, důvěryhodnost Posun z D do A: tranzice, změna režimu How and when CCs emerge? B to A: fragmentation of party or institutional system, change of flexible Constitution needed (France, Belgium) D to C: federalism, stabilization of regime, trust (Poland) D to A: transition, change of regime C to A: path dependency Z B do A: příkladem je Francie a Belgie: V BLG vzniká ÚS jako prostředek vypořádání se se zvyšování federalismu, ve Francii je to zbraň proti parlamentu a reformám V. republiky – až mnohem později se mění na soud. Posun z D do C: Polsko – snaha komunistů zmírnit napětí. YUG: vyjednávání mezi jednotlivými úrovněmi vlády. Teoreticky existuje i možnost posunu z B do C, ale nepotvrzuje se. Pak ještě C do A: zděděný soud. TJ. hypotézy jsou následovné: 1.Nedemokratický režim zavede US při společenském laku. 2.Při změně z ND na D se zavede US – je to výhodné pro nové i staré elity 3.Při změně z D bez Soudu na ND – nezavede se soud 4.D: US jako důsledek institucionální nebo stranické fragmentace Constitutional court No constitutional court Democracy A B Non-democracy C D Posun z B do A: fragmentace stranického nebo institucionálního systému, vyžaduje flexibilní ústavy Posun z D do C: federalismus, stabilizace režimu, důvěryhodnost Posun z D do A: tranzice, změna režimu How and when CCs emerge? A to B and C to D: difficult because of path dependency A to D: Ginsburg: phases C to B: ? Constitutional Court Transitional Justice Jurisprudence Less Transitional Justice Posun z B do A: fragmentace stranického nebo institucionálního systému, vyžaduje flexibilní ústavy Posun z D do C: federalismus, stabilizace režimu, důvěryhodnost Posun z D do A: tranzice, změna režimu Constitutinal courts in TJ processes Human rights Scope of Transitional Justice 2.0 Scope of Transitional Justice Constitutional Court Executive & Legislation Thank you for your attention Katarína Šipulová katarina.sipulova@law.muni.cz Masaryk University