“Decommunisation”, “Lustration”, and Constitutional Continuity

Sadurski, Wojciech

doi:10.1007/978-94-017-8935-6_9

Wojciech Sadurski^2,3

1081 Accesses
1 Citations

Abstract

The “unfinished business” of having to deal with the immediate Communist past elicited somewhat varied responses in CEE. This Chapter discusses in particular two main mechanisms of transitional justice, and constitutional courts’ responses to these measures: lustration/decommunisation and the suspension of statutes of limitations in respect of politically motivated crimes. On the issue of lustration and decommunisation, the main dilemma identified here was the clash between the socially popular concept of retributive justice and the official, legal-political rationales given to the lustration and decommunisation laws, which were future-oriented, consequentiality and prudential in their nature. The Chapter surveys main approaches, starting with the rigorous approach (as in the Czech Republic), through intermediate ones (e.g. in Albania and the Baltic states) to lenient approaches (e.g. in Poland). With regard to criminal liability for political crimes committed by regime officials in the past, a fundamental line can be drawn between those constitutional systems that have adopted the narrative of a sharp break with the past – and hence, find no need to be bound by the legal commitments reflected in the statutes of limitations – and those systems that asserted continuity and insisted upon strict observance of the rule of law and respect for statutes of limitations. The distinction lies in understanding the degree of constitutional continuity with the past, and also in the institutional division of roles played by the political institutions and the constitutional courts in defining the right mix of continuity and discontinuity.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 129.00; Price excludes VAT (USA)

Softcover Book: USD 169.99; Price excludes VAT (USA)

Hardcover Book: USD 169.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
On Spanish model of transition to democracy, see Michel Rosenfeld, “Constitution-Making, Identity Building, and Peaceful Transition to Democracy: Theoretical Reflections Inspired by the Spanish Example”, Cardozo Law Review 19 (1998): 1891–1920.
2.
See Jon Elster, “Coming to Terms with the Past. A Framework for the Study of Justice in the Transition to Democracy”, Arch. europ. sociol. 39 (1998): 7–48 at 14, where he defines retroactive justice as “political decisions made in the immediate aftermath of the transition and directed towards individuals on the basis of what they did or what was done to them under the earlier regime” (footnote omitted); he also makes it clear that this concept is coextensive with “transitional justice”, id. at 7.
3.
Id. at 46.
4.
Adam Michnik, “The Rebirth of Civil Society”, Public lecture at the London School of Economics, 20 October 1999, http://www.lse.ac.uk/Depts/global/Michnik89.htm
5.
Vojtech Cepl, “Ritual Sacrifices”, East Europ. Constit. Rev. 1:1 (Spring 1992): 24–26 at 25.
6.
Jirina Šiklová, “Lustration or the Czech Way of Screening”, in Martin Krygier & Adam Czarnota, The Rule of Law after Communism (Ashgate: Dartmouth 1999): 248–58 at 254–55.
7.
Eric A. Posner & Adrian Vermeule, “Transitional Justice as Ordinary Justice”, Harvard Law Review 117 (2004): 761–825 at 806.
8.
Aviezer Tucker, “Paranoids May Be Persecuted: Post-Totalitarian Retroactive Justice”, Arch. europ. sociol., 40 (1999): 56–100 at 64.
9.
Ruti G. Teitel, Transitional Justice (Oxford University Press: Oxford 2000) at 98.
10.
Šiklová, supra note 6 at 255.
11.
Jon Elster, “Retribution in the Transition to Democracy”, in Arend Soeteman (ed.), Pluralism and Law (Kluwer Academic Publishers: Dordrecht, 2001): 19–36 at 23.
12.
An analogy may be drawn to a central argument by Lee Bollinger, who warns against restraints upon racist speech in the US on the basis that such restraints may originate from wrongful motives, such as sheer psychological intolerance, or the sense of guilt for not having helped European Jews during the Holocaust, see Lee Bollinger, The Tolerant Society (Oxford University Press: Oxford 1986) at 129–30, 274–75 n. 17.
13.
Cepl, supra note 5 at 25.
14.
I cannot resist the temptation of quoting this remarkable passage, which illustrates nicely the uncertain boundaries between irrational vengeance and a more respectable sense of retribution as well as consequentialist argument: “Most supporters of lustration in post-communist universe are not very good at articulating their anxieties or grounding them in reality. This created the impression that they were looking for vengeance in western non-paranoid eyes. But their paranoia aside, persecuted they were, and though they could not articulate their fears of the nomenklatura, they had good reason to fear a class of people that survive by stealing anything that can be moved and corrupting any being with a soul”, Tucker supra note 8 at 97–98.
15.
From a statement of the Chairman of the Senate of Czech Republic on the amendment to the lustration law, quoted in the decision of the Czech Constitutional Court Pl. US 9/01 of 5 December 2001, see http://www.concourt.cz/angl–verze/doc/p-9-01.html at 5.
16.
From the Hungarian Constitutional Court Decision 60/1994 of 24 December 1994 (discussed below) in László Sólyom & Georg Brunner, Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (University of Michigan Press: Ann Arbor, 2000): 306–15 at 312.
17.
This is a summary of the petitioners’ objections provided by the Czech Constitutional Court in its Decision 19/93 of 21 December 1993, reprinted in East European Case Reporter 4 (1997): 149–174.
18.
As summarized by the Constitutional Court, id. at 152.
19.
Id. at 152.
20.
See text accompanying footnote 17 above.
21.
Id. at 155. Article 15 (2) of the Czech Charter (“freedom of scientific research”) was one of the grounds for a challenge to the Law.
22.
Id. at 155.
23.
Jiri Priban, “Moral and Political Legislation in Constitutional Justice: A Case Study of the Czech Constitutional Court”, J.E. Eur. L. 8 (2001): 15–34 at 20–21.
24.
Perhaps better translated as the Institute of National Remembrance. The Polish word “pamiec”, which features in the name of the Institute, has both of these meanings.
25.
Teitel supra note 9 at 81.
26.
Id. at 83.
27.
Bruce Ackerman, The Future of Liberal Revolution (Yale University Press: New Haven, 1992) at 71.
28.
Natalia Letki, “Lustration and Decommunisation in East-Central Europe”, Europe-Asia Studies 54 (2002): 529–52 at 539, footnote omitted.
29.
In addition, it has been claimed (not inaccurately) that Western ideas about decommunisation have been partly shaped by the selectiveness and bias of Westerners’ contacts with the new élites in post-communist states: “the Western visitors come for a short time, stay only in Prague or Budapest and talk with a few English speaking intellectuals with dissident background. The kind of locals that visitors are likely to interview are likely to be eager to contribute to the integration of their country in Europe”, Tucker supra note 8 at 75. There is therefore an element of self-perpetuation of the views hostile to decommunisation: opinions in CEE are partly shaped by Western attitudes, which, in turn, are partly shaped by selectively sampled informers in CEE.
30.
Id. at 73.
31.
Resolution of the Parliamentary Assembly of Council of Europe no. 1096 of 27 June 1996 on measures to dismantle the heritage of former communist totalitarian systems, http://stars.coe.fr/Main.asp?link=http%3A%2F%2Fstars.coe.fr%2FDocuments%2FAdoptedText%2Fta96%2FERES1096.htm. For a working document, referred to in the Resolution, entitled “Measures to dismantle the heritage of former communist totalitarian systems”, Doc. 7568 of 3 June 1996 see http://stars.coe.fr/Main.asp?link=http%3A%2F%2Fstars.coe.fr%2FDocuments%2FWorkingDocs%2FDoc96%2FEDOC7568.htm
32.
Paragraph 11 of the Resolution 1096, supra note 31.
33.
Id., paragraph 12.
34.
Id. paragraph 12, see also Doc. 7568, supra note 31, paragraph 16.
35.
Teitel, supra note 9 at 164.
36.
Elster, supra note 2 at 14.
37.
The German legal solution was occasionally referred to, with approval, by CEE Constitutional Courts when scrutinising lustration and decommunisation measures in their own countries; see, for example, Constitutional Court of Lithuania, Decision of 4 March 1999, http://www.lrkt.lt/1999/n9a0304a.htm, Part 2 of Court’s decision; Constitutional Court of Czech Republic, Decision 19/93 of 21 December 1993, in East European Case Reporter 4 (1997): 149–174 at 174 n. 1.
38.
Glaring exceptions to this general rule are provided by many former member states of the USSR (though not the Baltic ones), including Russia itself, in which neither “lustration” or “decommunisation” ever occurred – less, however, by virtue of a principled, consensual decision to adopt this form of reconciliation, and more “by default”, see Elster supra note 2 at 18.
39.
Noel Calhoun, “The Ideological Dilemma of Lustration in Poland”, East European Politics and Societies 16 (2002): 494–520 at 495.
40.
Aleks Szczerbiak, “Dealing with the Communist Past or the Politics of the Present? Lustration in Post-Communist Poland”, Europe-Asia Studies 54 (2002): 553–72 at 570, emphasis added.
41.
Cepl supra note 5 at 24.
42.
Act No. 451/1991 Sb. of 4th October 1991.
43.
Helga A. Welsh, “Dealing with the Communist Past: Central and East European Experiences after 1990”, Europe-Asia Studies 48 (1996): 413–428 at 415.
44.
“Constitution Watch: Czech Republic”, East Europ. Constit. Rev. 4:4 (Fall 1995): 8–10 at 9.
45.
Act no. 422/2000.
46.
Act no. 279/1992 provided for lustration of candidates for work in the police.
47.
Act no. 147/2001.
48.
Constitutional Court of the Czech and Slovak Federal Republic Decision No. 1/92 of 26 November 1992, see http://www.concourt.cz/angl_ver/decisions/doc/p-1-92.html
49.
Id. at 7.
50.
Id. at 8.
51.
Id. at 8.
52.
See, similarly, Teitel supra note 9 at 165–66.
53.
Decision 1/92, supra note 48 at 9.
54.
Id. at 10.
55.
Id. at 9.
56.
Id. at 9.
57.
Decision 9/01 of 5 December 2001, see http://www.concourt.cz/angl–verze/doc/p-9-01.html
58.
Id. at 3.
59.
Id. at 15–16.
60.
Id. at 18.
61.
Id. at 18.
62.
Id. at 19.
63.
“Constitution Watch: Albania”, East Europ. Constit. Rev. 5:1 (Winter 1996): 2–3.
64.
For a detailed discussion of this decision see Kathleen Imholz, “A Landmark Constitutional Court decision in Albania”, East Europ. Constit. Rev. 2:3 (Summer 1993): 23–5.
65.
The statute “On the Assessment of the USSR Committee of State Security (NKVD, NKGB, MGB, KGB) and Present Activities of the Regular Employees of This Organisation” of 16 July 1998.
66.
Decision of 4 March 1999, http://www.lrkt.lt/1999/n9a0304a.htm. I discuss this decision also in Chap. 10, pp. 404–405.
67.
Id., Section 5 of the Court’s decision.
68.
Id., Section 5.2 of the Court’s decision.
69.
In the first elections after the fall of the Zhivkov rule, held in June 1990, the post-Communist Bulgarian Socialist Party (BSP) won a solid majority in the Grand National Assembly; after the collapse of the BSP government in September 1990, a coalition led by both the BSP and the liberal-democratic Union of Democratic Forces (UDF) was formed.
70.
Decision 60/1994 (X11.24) of 22 December 1994, reprinted in East European Case Reporter of Constitutional Law 2 (1995): 159–193; excerpts in Sólyom & Brunner, supra note 16 at 306–15. The references below are to the excerpts in the latter volume.
71.
“[T]he Constitutional Court must consider the transition as a historical fact”, id. at 312.
72.
Law LXII/1996. For a political background see Gábor Halmai & Kim Lane Scheppele, “Living Well Is the Best Revenge: The Hungarian Approach to Judging the Past”, in A. James McAdams (ed), Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997): 155–84 at 176–77.
73.
Sejm [The lower chamber of Polish parliament] Resolution of 28 May 1992, described in Andrzej S. Walicki “Transitional Justice and the Political Struggles of Post-communist Poland” in McAdams, supra note 72: 185–238 at 197–98; see also Wiktor Osiatynski, “Agent Walesa?”, East Europ. Constit. Rev. 1:2 (Summer 1992): 28–30; Calhoun, supra note 39 at 503–505.
74.
Decision U. 6/92 of 19 June 1992; Polish text on file with the author, p. 6.
75.
Decision W. 5/94 of 14 July 1993, http://www.trybunal.gov.pl/OTK/teksty/otkpdf/1993/W_05_93.pdf
76.
Judgment K. 3/98 of 24 June 1998, translation in East European Case Reporter of Constitutional Law 6 (1999) 130–211. The ex-ante review was initiated by the President.
77.
Id. at 201–2 (Rymarz, J., dissenting), and at 203–11 (Zdyb, J., dissenting).
78.
Id. at 190.
79.
Decision K. 39/97 of 10 November 1998, O.T.K. (1998), Item No. 26 at 491–557.
80.
Id. at 633–41.
81.
Decision K. 39/97, OTK at 525.
82.
Id. at 518–19.
83.
Decision P. 3/00 of 14 June 2000, http://www.trybunal.gov.pl/OTK/teksty/otkpdf/2000/p_03_00.pdf
84.
Id. at 11.
85.
For example, a draft law proposed by a centrist party Freedom Union in April 2001, see Jolanta Kroner, “Precyzyjniej, z domniemaniem niewinnosci, bez donosu poselskiego”, Rzeczpospolita (Warsaw) 9 April 2001 at C1.
86.
Decision K 11/02 of 19 June 2002, http://www.trybunal.gov.pl/OTK/teksty/otkpdf/2002/K_11_02.pdf
87.
Id. at 3.
88.
See id. at 30–34 (Mazurkiewicz, J., dissenting).
89.
Id. at 34–40 (Safjan, C.J., dissenting); similarly id. at 40–42 (StĊpieĔ, J., dissenting).
90.
Judgment K 2/07 of 11 May 2007, for an extended English summary see http://trybunal.gov.pl/en/case-list/judicial-decisions/art/5898-lustracja/ (last accessed 20 January 2014).
91.
Part III.1.7.2 of the Judgment.
92.
Part III.2.4.
93.
Part III.2.5.
94.
Part III.2.5.
95.
Part III.10.2.2.
96.
Part III.10.2.2.
97.
Judgment K 6/09 of 24 February 2010.
98.
Part 4.4 of the judgment K 6/09.
99.
Part 6.6.
100.
Part 8.9.
101.
Part 10.7.
102.
Part 12.
103.
Decision 8/92 of 27 July 1992, discussed in Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (University of Chicago Press: Chicago, 2000) at 188–89.
104.
Decision 11/92 of 29 July 1992.
105.
Interview with Professor Neno Nenovsky, former Justice of the Constitutional Court of Bulgaria (in 1991–94), Sofia 10 May 2001. He was one of the dissenting judges in this case.
106.
Which is not to say that it was found constitutional. The Bulgarian Constitutional Court takes decisions by majority; in this particular case, six judges voted to uphold the law, five to strike it down, and one abstained. There was therefore not a sufficient majority (of seven) to strike down the law but neither was the law explicitly confirmed as constitutional.
107.
Decision 1/93 of 11 February 1993, see “Constitution Watch: Bulgaria”, East Europ. Constit. Rev. 2:1 (Winter 1993): 2–3 at 3.
108.
Rumyana Kolarova, “Bulgaria: A Self-Restricting Court”, East Europ. Constit. Rev. 2:2 (Spring 1993): 48–50 at 50.
109.
“National Assembly Repasses Act Reversing ‘Panev Law’”, BBC Summary of World Broadcasts, 25 March 1995 (available in LEXIS-NEXIS).
110.
“Constitution Watch: Bulgaria”, East Europ. Constit. Rev. 6:4 (Fall 1997): 6–10 at 8.
111.
Decision no 14/1997 of 22 September 1997.
112.
Annual Report 1999, International Helsinki Federation for Human Rights, at http://www.ihf-hr.org/reports/ar99/ar99bul.htm
113.
Decision no. 02/99 of 21 January 1999, summarised in Bull. Const. Case-Law 1999 (1): 28–29, BUL-1999-1-002.
114.
“Constitution Watch: Bulgaria”, East Europ. Constit. Rev. 8:1/2 (Winter/Spring 1999): 5–7 at 7.
115.
Decision No. 42/2008 of 24 March 2010.
116.
See CODICES Precis at http://www.codices.coe.int
117.
Decision 19/93 of 21 December 1993, reprinted as “Judgment of the Constitutional Court of the Czech Republic”, Parker Sch. J.E. Eur. L. 1 (1994): 363–91; see also comment by Herman Schwartz, “The Czech Constitutional Court Decision on the Illegitimacy of the Communist Regime”, Parker Sch. J.E. Eur. L. 1 (1994): 392–8. See also the same translation in East European Case Reporter 4 (1997): 149–174. The references below are to the latter source.
118.
Id. at 157.
119.
Id. at 158.
120.
Id. at 157.
121.
Id. at 160.
122.
For a similar criticism of this aspect of the Court’s decision by a scholar otherwise supportive of the Court’s jurisprudence, see Priban, supra note 23 at 28.
123.
Decision 19/93, supra note 117 at 163.
124.
Id. at 163.
125.
Id. at 166–69.
126.
Law of 4 November 1991 on the “Right to Prosecute Serious Criminal Offences Committed Between December 21 1944 and May2 1990 That Had Not Been Prosecuted For Political Reasons” published in Journal of Constitutional Law in Eastern and Central Europe 1(1994): 129–157.
127.
Constitutional Court decision no. 11/1992 of 5 March 1992, reproduced in Sólyom & Brunner, supra note 16 at 214–18.
128.
Id. at 219.
129.
Id. at 221.
130.
Halmai and Scheppele, supra note 72 at 164–165.
131.
Decisions 41/1993 (VI.30) Abh and 42/1993 (VI.30)Abh.
132.
Decision 53/1993 (X.13) Abh.
133.
David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton University Press: Princeton 2010), pp. 141–42, emphasis in the original.
134.
Stephen J. Schulhofer, comments in the symposium “Dilemmas of Justice”, East Europ. Constit. Rev. 1:2 (Summer 1992): 17–22 at 18.
135.
Id. at 18.
136.
Decision 11/1992 of 5 March 1992 reproduced in Sólyom & Brunner, supra note 16 at 223.
137.
See id, especially at 221–22.
138.
Posner & Vermeule, supra note 7 at 797.
139.
See, e.g., Spencer Zifcak, “Hungary’s Remarkable, Radical, Constitutional Court”, Journal of Const. Law in Eastern and Central Europe 3 (1996): 1–56 at 6–9.
140.
Ruti Teitel, “Paradoxes in the Revolution of the Rule of Law”, Yale Journal of International Law 19 (1994): 239–47 at 244–45.
141.
Id. at 246.
142.
Michel Rosenfeld, comments in the symposium “Dilemmas of Justice”, supra note 134 at 20.
143.
1 May 1990 marks the date of the first session of democratically elected Parliament.
144.
Art. 3 of the Fourth Amendment of 11 March 2013; for a good discussion see “Amicus Brief for the Venice Commission on the Fourth Amendment to the Fundamental Law of Hungary” ed. by Gabor Halmai and Kim Lane Scheppele (April 2013), available at http://halmaigabor.hu/dok/437_Amicus_Brief_on_the_Fourth_Amendment4.pdf (last accessed 18 January 2014).
145.
It is estimated that only a few hundred Czechs lost their jobs due to lustration, and that around 5 % of the members of parliament were forced to resign, see Tucker supra note 8 at 84.
146.
As Adam Czarnota and Piotr Hofmanski observe, “The attempt to make a legal break with the past … taken together with the simultaneous recognition of the continuity of the state, and with that [sic] the continuity of the system of law, amounts to an attempt to square a circle”, Adam Czarnota & Piotr Hofmanski, “Can we do Justice to the Past?”, in Krygier & Czarnota, supra note 6: 197–211 at 199.
147.
Carlos Santiago Nino, Radical Evil on Trial (Yale University Press: New Haven, 1996) at 120.
148.
Posner & Vermeule, supra note 7 at 795.
149.
For an account, see Carlos H. Acuña & Catalina Smulovitz, “Guarding the Guardians in Argentina: Some Lessons about the Risks and Benefits of Empowering the Courts”, in McAdams, supra note 7:93–122 at 102.
150.
Teitel, supra note 9 at 14.
151.
Constitutional Court decision of 5 March 1992, no. 11/1992, see supra notes 127–129 and the accompanying text.
152.
See, e.g., the decision of Constitutional Tribunal K.7/90 of 22 August 1990 (upholding the constitutionality of the law that deprived ex-high officials of the Communist Party of their high pensions, based on the argument that their early retirement law was unjust in the first place); see similarly decision U.6/93 of 12 April 1994 (a decision by the Minister of Industry discontinuing the right to free electricity of employees of the energy industry, held constitutional because the right to free energy violated equality before the law).

Author information

Authors and Affiliations

University of Sydney, Sydney, Australia
Wojciech Sadurski
University of Warsaw, Warsaw, Poland
Wojciech Sadurski

Authors

Wojciech Sadurski
View author publications
You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Sadurski, W. (2014). “Decommunisation”, “Lustration”, and Constitutional Continuity. In: Rights Before Courts. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-8935-6_9

Download citation

DOI: https://doi.org/10.1007/978-94-017-8935-6_9
Published: 21 April 2014
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-017-8934-9
Online ISBN: 978-94-017-8935-6
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)

Publish with us

Policies and ethics