Transitional Injustice? Criteria for Conformity of Lustration to the Right to Political Expression

Click to increase image sizeClick to decrease image size Notes I am grateful to Susanne Y. P. Choi, Andrew Rens and Christopher Roederer for their valuable comments, to the University of the Witwatersrand and the South African National Research Foundation for their support and to the RSS, Prague, for financing my fieldwork in the Czech Republic, Poland, Slovakia and Slovenia, which was part of grant No: 1636/245/1998. See generally Neil J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington, DC, United States Institute of Peace, 1995); J. A. McAdams (ed.), Transitional Justice and the Rule of Law in New Democracies (Notre Dame, IN, University of Notre Dame Press, 1996); Ruti G. Teitel, Transitional Justice (Oxford, OUP, 2000); 'Law and Lustration: Righting the Wrongs of the Past,' Law & Social Inquiry (special issue), 20, 1, 1995, pp. 7–273. (All these publications also offer an insight into the problems of lustration.) For the origin of the word 'lustrace' see R. David, 'Lustration Laws in Action: The Motives and Evaluation of Lustration Policies in the Czech Republic and Poland,' Law & Social Inquiry, 28, 2, 2003, pp. 387–388. See generally 'Constitution Watch', East European Constitutional Review, quarterly country reports, 1992–2003; Kritz (ed.), Transitional Justice. The term and the dynamic of 'capital conversion process' are described by Maria Loś & Andrzej Zybertowicz, Privatizing the Police State: The Case of Poland (London, Macmillan and New York, St Martin's Press, 2000). For the activities of these networks see David, 'Lustration Laws in Action'; A. Tucker, 'Paranoids may be Prosecuted: Post‐totalitarian Retroactive Justice', Archives Europeennes de Sociologie, XL, 56, 1999. See N. Letki, 'Lustration and Democratisation in East‐Central Europe', Europe‐Asia Studies, 54, 4, 2002, p. 529; V. Cepl & M. Gillis, 'Making Amends after Communism', Journal of Democracy, 7, 4, 1996, pp. 118, 122–124 (stating that 'without rehabilitation, lustration, and restitution, there will be no transformation'); David, 'Lustration Laws in Action'. Personnel changes in public administration seem to be vital for democratic consolidation elsewhere. Cf. Radio Prague News, 19 March 1999, 'Here in Prague, the visiting Chilean President Eduardo Frei stressed the need to thoroughly cleanse state and government institutions of people implicated with former totalitarian regimes. The Chilean president … took a lively interest in the Czech legislation that requires mandatory screening of state officials'. For some scholarly criticism see for example H. Schwarz, 'Lustration in Eastern Europe', Parker School Journal of East European Law, 1, 1994, p. 2; R. Boed, 'An Evaluation of the Legality and Efficacy of Lustration as a Tool of Transitional Justice', Columbia Journal of Transnational Law, 38, 1999, p. 357. See also A. Michnik & V. Havel, 'Confronting the Past: Justice or Revenge?', Journal of Democracy, 4, 1, 1993, p. 23. Parliamentary Assembly of the Council of Europe, 'Resolution on Measures to Dismantle the Heritage of Former Communist Totalitarian Systems', Doc. No. 1096 (1996). Report of the Committee Set Up to Examine the Representations Made by the Trade Union Association of Bohemia, Moravia, and Slovakia and by the Czech and Slovak Confederation of Trade Unions under Article 24 of the ILO Constitution alleging Non‐Observance by CSFR of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111)', LXXV ILO Official Bulletin, Supp. 1, Ser. B, 1992 (hereinafter ILO Report). The ILO repeated its criticism in 1993 and 1999. See Helsinki Watch, 'International Helsinki Federation for Human Rights and Project on Justice in Times of Transition, Memorandum on the Applicability of International Agreements to the Screening Law', 1992, reprinted in Kritz (ed.), Transitional Justice, p. 335 (hereinafter Memorandum). The memorandum was signed by Lloyd Cutler, Diane Orentlicher, Herman Schwartz. The 'de‐Baathification' policy pursued by the occupying authorities in Iraq and designed against former members of the Baath Party, one of the political instruments of Saddam's oppression, is a case in point. Order 1, signed by Paul Bremmer, the head of the Coalition Provisional Authority, in May 2003 facilitated exclusion of certain party members from certain administrative positions. The distinction between lustration and de‐communisation is common among scholars writing on the Polish lustration law, which does not include members of the former Communist Party (PZPR). See for example A. Szczerbiak, 'Dealing with the Communist Past or the Politics of the Present? Lustration in Post‐Communist Poland,' Europe‐Asia Studies, 54, 4, 2002, pp. 553–554. See for example Mirna Solic, 'Screening Law Still Remains in Place Twelve Years After the Fall of Communism', Radio Prague News, 26 June 2003, http://www.radio.cz/print/en/42279. See also Václav Žák, 'Justice or Lustration?', The New Presence, August 1998, http://www.new‐presence.cz/98/08/. 'Act that Prescribes Certain Additional Prerequisites for the Exercise of Certain Positions Filled by Election, Appointment, or Assignment in the State Organs and Organisations', Act No. 451/1991 Sb. See for example the ILO Report. See Decision of the Constitutional Court of CSFR, Pl. ÚS 1/92, 26 November 1992, English translation available at ⟨http://www.concourt.cz/angl_verze/doc/p‐1‐92.html⟩. See CTK (the Czech Press Agency), 'Havel Declines to Sign Amendments to Screening Laws', 16 November 2000, 'Mr President 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 the civil service', a presidential spokesman said, adding that 'for this reason Havel would not allow another five‐year waiting period'. The lustration law is to be incorporated into the law on the civil service. Decision of the Constitutional Court of CR, Pl. ÚS 9/01, 5 December 2001. Naturally, prosecutors, investigators and judges cannot be transferred to a lower position. It adopts the feature of the tort law principle res ipsa loquitur (the thing speaks for itself). 'We know that a wrong occurred and that the persons in question were in control of the instrumentality which brought about the wrong when it occurred, but we do not have more specific evidence to prove the actual event. Nonetheless, the law in this field does not throw its hands up and declare that nothing can be done', M. Gillis, 'Lustration and Decommunisation', in J. Přibáň & J. Young (eds), The Rule of Law in Central Europe, 56, 64, 1999. However, there can be no doubt that a choice of particular procedures must take into account the scope of law and vice versa; see the section on limitations in the Conclusion to this article. 'In areas of protected freedoms, regulation based upon mere association and not upon proof of misconduct or even of intention to act unlawfully, must at least be accompanied by standards or procedural protections sufficient to safeguard against indiscriminate application', United States v. Robel, 389 U.S. 258, 282. See Lustration Law, § 18 (2). See also Act No. 99/1963 Sb., Civil Procedures, § 9 (2) d) and § 10 (2), in the current version. Decision of 13 April 1992, in Nejvyšší soud ČSFR, Sbírka soudních rozhodnutí a stanovisek, 1992, 6, p. 273. The law concerns only leading positions in the listed organisations. It does not affect employees therein with the exception of those in the justice system. Hence the petition of the Czech unions submitted to the ILO (see ILO Report) appears to be a political rather than social concern since principal officials are not supposed to be members of a union. The same is true in the case of the ILO Report itself, based on the 'Discrimination (Employment and Occupation) Convention' (italics added). Cf. n.41 (the attitude of the Parliamentary Assembly of the Council of Europe). See Lustration Law, § 1 (5). See also Act No. 455/1991 Sb., § 27 (2) and its App. No. 3 (Concession‐based trade). It concerns trade in areas such as production and transport of firearms, explosives etc. Contra Memorandum, p. 341 (mistakenly assuming that the law 'apparently can include taxi drivers, antique dealers etc.'). See Act No. 422/2000 Sb., § 1. Two sections of the lustration law concern the repressive apparatus: §§ 2 and 3. The latter is only a modification of the former; it does not cover all members of the secret police but some communist officials in the National Security Corps. Here the attention is focused on the more important section 2. 'Discrimination (Employment and Occupation) Convention', ILO No. 111, 4 June 1958, 362 U.N.T.S. 31. It provides: 'Art. 1. For the purpose of this Convention the term "discrimination" includes: (a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; … (b) Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. Art. 4. Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the state shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice'. For the ILO definition of 'political opinions' see ILO Report, para. 57, 'The Convention implies protection in respect of activities expressing or demonstrating opposition to the established political principles … even if certain doctrines are aimed at fundamental changes in the institutions of the state … in the absence of the use or advocacy of violent methods to bring about that result. … The protection of freedom of expression … extend to their collective advocacy …'. ILO Report, para. 79, italics added. Ibid. 'Convention for the Protection of Human Rights and Fundamental Freedoms', 4 November 1950, 213 U.N.T.S. 221 (hereinafter European Convention), Art. 10 provides: 1. Everyone has the right to freedom of expression … 2. The exercise of these freedoms … may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others …'. See for example Boed, 'An Evaluation of the Legality and Efficacy of Lustration'. See generally Los & Zybertowicz, Privatizing the Police‐State; David, 'Lustration Laws in Action'; Tucker, 'Paranoids may be Prosecuted'. See Szczerbiak, 'Dealing with the Communist Past or the Politics of the Present?', p. 562, arguing that sponsors of lustration were not motivated by securing historical justice but by 'a desire for openness in public life together with the need to protect national security and prevent so‐called "wild lustration" '. For a comparative overview of legislative intention see David, 'Lustration Laws in Action', pp. 392–394. President Havel initially did not seem to understand the intention of the legislator. He found the law too wide but when looking from the perspective of political opinions he criticised it for being too narrow: 'The law generally spares persons who in their writings and publications have supported lawlessness, have glorified political trials and systematically created a climate of fear in society', quoted in ILO Report, para. 39. The minimal measures of discontinuity with its predecessor and the lack of repentance are probably the main reason why the Czech Communist Party had long been politically isolated. Until 2002 none of its members had ever been elected to any leading post in the parliament. President Havel never invited the CP to political consultations. Even its ideologically closest potential ally, the Czech Social Democratic Party, approved a statement of non‐cooperation with the Communist Party at the party congress held in March 1997. However, the isolation of the CP has changed with the 2003 presidential election; in exchange for the votes of the CP deputies, President Klaus is attempting to 'rehabilitate' the CP. See ⟨http://ksc‐cssp.webpark.cz/⟩. The party adopted the name of the totalitarian Communist Party, which had changed its name to 'the Communist Party of Bohemia and Moravia'. The principle of a militant democracy, a 'democracy capable of defending itself' (wehrhafte Demokratie), is embodied in the German Constitution. See Grundgesetz, art. 9 (2), 18, 20 (4), 21 (2), 79 (3). It is recognised by the German Constitutional Court as well as by the European Court of Human Rights. See 39 BVerfGE 334, 1975 (hereinafter Civil Servant Loyalty Case), translated in D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 222 (1989); Vogt v. Germany, App. No. 17851/91, 21 Eur. H.R. Rep. 205 (1995) (Eur. Ct. H.R.), para 51. For characterisation and application of the concept see for example Kommers, The Constitutional Jurisprudence … See for example Ústava ČR (Constitution of the Czech Rep.), art. 5, 9 (2), and 87 (1) j. See Letki, 'Lustration and Democratisation in East‐Central Europe', pp. 546–548. Memorandum, p. 339, n.5. In order to legitimise the system the Communist Party nominally tolerated the Czechoslovak Socialist Party and the Czechoslovak People's Party; see 'Auxiliary Parties, Mass Organizations, and Mass Media', in I. Gawdiak (ed.), Czechoslovakia: A Country Study (1987), ⟨http://1cweb2.loc.gov/frd/cs/cstoc.html⟩. The committees were established soon after the communist takeover in 1948 and after the Soviet invasion in 1968. Their tasks were to cleanse all segments of society from 'reactionaries' or those who disapproved of the Soviet occupation. Consequently, hundreds of thousands of people were dismissed from their jobs. The operation of the committees was entirely illegal, although they received their legal status retroactively. The procedures of the Action Committees of the National Front in 1948 were legalised ex post as measures taken 'in accordance with law, even in cases which would not have otherwise been in conformity with the appropriate enactments'. See Act No. 213/1948 Sb., quoted in Decision of the Constitutional Court of CSFR, Pl. ÚS 1/92. The post‐1968 Screening and Normalisation Commissions applied similar draconian methods. They were 'regulated' by the measure issued by the Presidium of the Federal Assembly one year after the Soviet invasion, which, among other things, suspended relevant provisions of the labour code (Presidium of the Federal Assembly Measure No. 99, 22 August 1968, signed by A. Dubcek). The European Court of Human Rights explicitly recognises the omission of the right of access to public service. See Glasenapp v. Germany, App. No. 9228/80, 9 Eur. H.R. Rep. 25 (1986) (Eur. Ct. H.R.), para. 48, 'Neither the European Convention nor any of its Protocols sets forth any such right. Moreover, … the signatory States deliberately did not include such a right'. The inconsistency between the organisations of the Council of Europe — the Court and the Parliamentary Assembly (Resolution 1096) — reveals political rather than human rights concern about the lustration law. Cf. n. 22 (the attitude of the ILO). For example, if an employee at a security department with a salary of CZK10,000 was dismissed after 20 years of service, he/she was entitled to compensation of CZK80,000 plus a CZK3,800 monthly income paid until his/her retirement; see Act No. 100/1970 Sb., in the version of 169/1990 Sb., on service in the Corps of National Security; J. Spurný, 'Odškodné pro estébáky', Respekt, 8 June 1992, p. 4; R. Křižanová & M. Bartůněk, 'Dobře zaplacený civil', Respekt, 23 November 1992, p. 5. For comparison, political prisoners were compensated by CZK2,500 for each month spent in prison; see Rehabilitation Act, No. Sb. v. U.S. Court has made that even a has no to a valuable and even the government may the for any of there are some upon which the government may not It may not a to a on a basis that protected interests — interest in freedom of See also v. U.S. may not be on an or activities For the of the of the rights see v. U.S. for the rights see v. of U.S. for example, in the case of v. U.S. 1 the Court to a vital government interest in the integrity of the it that the case soon be as to may the of the democratic see to v. New November v. Los 341 U.S. v. of U.S. Civil v. U.S. italics added. for example v. of U.S. at italics added. Court also that 'the right and the of the authorities to the and employees as to their to the integrity of the … cannot be See also German Civil Servant Loyalty p. the Constitutional Court that 'the democratic state cannot and must not to its After and the Court to public as a see 'The of the in Constitutional Law', Law Review, 1968. as a cannot justify an or cannot other the of the term of, or an may not that that changed its Cf. in The Case for Journal of Studies, 20, 2000, arguing that although restrictions were or the and requirements of public employment can justify measures to these of the Civil Servant Loyalty p. Vogt v. Germany, para 51. See and See Tucker, 'Paranoids may be p. See Decision of the Ct. of the Czech Rep. of 21 December 1993, Pl. ÚS available at The Communist system was 'a in which was of the that the were not that the were not that was not democracy, and that the law was not law least not in the of a since the application of the law was politically and when the interests of those who into the The Constitution human See Ústava art. are in all their to to the interests of the state and the society of the See Ústava art. 4, 'The leading in society and in the state was the of the the Communist Party of a of the and among and For the distinction between and see pp. The of the legal system it did not the protection of human rights but the protection of the of the Laws not only political rights but all human rights in the which they would have been if they had been by a established For example, the freedom of was by the No. which such as of a and of and See for example the of 1 for the or … of rights is the system by which all national institutions and organisations are in effect subject to political from the of the party and to made by The of the its laws and legal do not the or the or application of such they are only to the public at and its to …'. See (Constitution of English translation available at See Constitutional Act No. Sb. See Act No. Sb. See Act No. Sb. See Pl. ÚS The People's were on 21 December see & a a 1995, p. The Communist Party of to its with its totalitarian It changed its name to the Communist Party of Bohemia and and a of its leading see M. a M. December The party to quoted in & a p. See pp. and for example, members of the People's in in the on June See pp. and For example, it to the opposition in see for example of by … of the Security against these … the of Prague members of the People's from Prague in the Decision of the Constitutional Court of CSFR, Pl. ÚS 1/92. are from the and cases they The subject of the former is 'a the subject of the latter is an into a The former with of a the latter with the of the to the on 'a see v. of U.S. v. U.S. In the case of Association v. U.S. the recognised that that members of other political … a of political when they positions of In v. Los 341 U.S. the that 'the Federal Constitution does not a to its employees to or not they or ever have members of the Communist Party …'. v. of U.S. The also the legislative in a listed found to be the and by the to be the see also v. 341 U.S. v. U.S. v. the United U.S. 'The on of the Communist Party to by standards one and he can be to have on this see also v. United U.S. v. of U.S. v. U.S. v. of U.S. United States v. Robel, 389 U.S. 258, also found that the government were in to the v. U.S. The 'the Law of v. of and v. of U.S. In the to the found it after years of 'the Court that the which has since … has with other are the cases of v. State of U.S. 1 and v. U.S. 23 on one and Law Research Council v. U.S. on the U.S. U.S. may be or but he is not by this made a See v. U.S. See United States v. Robel, 389 U.S. 258, See v. U.S. See U.S. at with other even the that can be no doubt of the of New interest in its system from The of and were applied in the and of see v. United 341 U.S. 'The cannot that the may it must until the is about to be the have been and the is see also v. U.S. In the see for example United States v. U.S. with other Law Research Council v. U.S. with another See 'The Communist Party of and in Czechoslovakia: A Country the period of communist more than people under at the state with of the of the Confederation of 18 2000). The Czechoslovak at least see pp. In to this they had to political see 'The Communist Party of and a members of People's were also of the CP. However, they were from the after the communist & a p. See v. The United App. No. 4 Eur. H.R. Rep. para. that Article does not the of of on the same as the to a particular trade may not be to the However, a of of is a of … at the of the freedom by Article See ILO Report, para. 'The President … is not … as the People's the law not only with those for more than one year …'. See Michnik & Havel, 'Confronting the p. Havel the Lustration law who in the Party at against the Soviet The of who the of and the Soviet see & and People's p. See for example Vogt v. Glasenapp v. for changes in see The Constitutional Jurisprudence of the Federal Republic of University Press, See 'Lustration and United States v. and A. the Past in University Press, pp. The of officials also the against lustration see David, 'Lustration Law in Action'. Additional on I am grateful to Susanne Y. P. Choi, Andrew Rens and Christopher Roederer for their valuable comments, to the University of the Witwatersrand and the South African National Research Foundation for their support and to the RSS, Prague, for financing my fieldwork in the Czech Republic, Poland, Slovakia and Slovenia, which was part of grant No: 1636/245/1998.