Late lustration programmes in Romania and Poland: supporting or undermining democratic transitions?

Abstract

In 2006, Poland and Romania embarked on renewed lustration programmes. These late lustration policies expanded the scope and transparency measures associated with lustration as a form of transitional justice. While early lustration measures targeted political elites, late lustration policies include public and private sector positions, such as journalists, academics, business leaders, and others in ‘positions of public trust’. Given the legal controversy and moral complexity surrounding lustration, why lustrate so late in the post-communist transition and why expand the policies? The dominant explanation is that lustration is a tool of party politics and is a threat to democratic consolidation. However, the late lustration programmes do not fit this hypothesis neatly. The new laws have been restructured and packaged with other reform programmes, specifically anticorruption programmes. Late lustration has evolved to include economic and social, as well as political concerns. As such, some post-communist governments in Central and Eastern Europe appear to be trying to use lustration as a way to further the democratic transitions by addressing remaining public concerns about corruption, distrust, and inequality.

Keywords:

• Poland
• Romania
• lustration
• transitional justice
• elites
• transition
• anticorruption

Notes

Quoted in David, ‘Lustration Laws in Action’, 394.

United Nations, Rule of Law Tools for Post-Conflict States, 4.

Regional arguments against lustration have been made by the Polish leader Tadeusz Mazowiecki and later Lech Walesa while he was Poland's president. See Bertschi, ‘Lustration and the Transition to Democracy’, 435-451; Michnik and Havel, ‘Justice or Revenge’, 20–7; Siklova, ‘The Czech Way of Screening’, 57–62.

International criticism has resonated with national level concerns, see International Labour Organization, Report of the Committee Set Up to Examine the Representation Made by the Trade Union Association of Bohemia, Moravia and Silesia (OS-CMS) under Article 24 of the ILO Constitution; Council of Europe, Lustration Must Not Turn into Revenge Against Former Collaborators.

Wiktor Osiatynski, ‘Poland Makes Witch Hunting Easier’, The New York Times, 22 January 2007 (Warsaw edition), op-ed.; ‘The Polish Inquisition’, The Wall Street Journal, 27 April 2007 (Brussels edition), editorial; and ‘The New Purge in Poland’, The Boston Globe, 9 April 2007.

Czechoslovakia enacted a lustration program in 1990. After the split, Slovakia used the screening law it inherited until it stopped its lustration program in 1993. In 2002 it approved a National Memory Bill to renew lustration policies, but this did not gain real momentum until 2004. See Kritz, ‘Czech and Slovak Federal Republic’, 312–21; Radio Free Europe/Radio Liberty, ‘Slovakia Makes Files from Communist and Nazi eras Public’, RFE/RL Newsline, 6, no. 128, part II, 11 July 2002, http://www.rferl.org; Kubosova, ‘Slovakia: Pandora's Box Online’.

Gaube, ‘Slovenia: A Sorry Spy Hunt’; Aris Jansons, ‘Latvia: Spy Games’.

‘Macedonian Assembly Legal Committee Approves Lustration Bill’, BBC Monitoring European, 23 January 2007, Makfax News Agency, Skopje.

Boed, ‘An Evaluation of the Legality and Efficacy of Lustration’, 357–402; ‘Czech Interior Ministry To Start Checking Police for Communist Security Ties’, BBC Monitoring European, 19 February 2007.

According to the US State Department, Poland's 2007 GDP per capita was $11, 037, while Romania's was $5662. Both had annual GDP growth rates of approximately 6%. See US Department of State, ‘Background Notes: Poland and Romania’, http://www.state.gov/r/pa/ei/bgn.htm

European Commission, ‘Bulgaria and Romania – More Work Needed on Corruption’.

David, ‘Lustration Laws in Action’, 388; Natalia Letki, ‘Lustration and Democratisation in East-Central Europe’, 530; Williams and Szczerbiak, et al., ‘Explaining Lustration in Eastern Europe’.

László Sólyom, ‘The Role of Constitutional Courts’, 133–61.

Note, Kaminiski and Nalepa differentiate two forms of truth revelation procedures, confession-based procedures and incentive-based procedures, in order to discuss differences in impact and efficacy. See ‘Judging Transitional Justice’, 383–408; Mark Gibney, ‘Prosecuting Human Rights Violations From a Previous Regime’, 93–110.

For a lively debate amongst regional scholars over the definition and intent of lustration, see Hatschikjan, Past and Present.

‘Poland's Witch Hunt’, Irish Times, 30 April 2007, 21.

European Court of Human Rights, Case of Sidabras and Dziautas v. Lithuania; European Court of Human Rights, Case of Rainys and Gasparavičius v. Lithuania.

Boed, ‘Legality of Lustration’, 363; and Bertschi, ‘Lustration and the Transition to Democracy’, 447.

Boed, ‘Legality of Lustration’.

For an overview of where lustration and vetting are situated within the larger transitional justice debate see Auckerman, ‘Extraordinary Evil, Ordinary Crime’, 39–97; Minow, Between Vengeance and Forgiveness. The arguments for and against lustration on moral, legal, and procedural grounds have been oft debated, therefore I will not reiterate all of the arguments here. For a review of some of the key issues see Lós, ‘Lustration and Truth Claims’, 117–61; Welsh, ‘Dealing with the Communist Past’, 413–29; Posner and Vermeule, ‘Transitional Justice as Ordinary Justice’, 761–825.

Maina Kiai, ‘How Human Rights Principles & Approaches’; United Nations, Rule of Law Tools for Post-Conflict States; Williams, ‘Lustration as the Securitization of Democracy’, 1–24.

Council of Europe, Measures to Dismantle the Heritage of Former Communist Totalitarian Systems.

United Nations, Rule of Law Tools for Post-Conflict States.

For example, see European Court of Human Rights, Case of Ždanoka v. Latvia, 39.

Tupy, ‘Rise of Populist Parties in Central Europe’, 13.

Cioflanca, ‘Politics of Oblivion’, 85–93.

Specifically Conor O'Dwyer shows that despite an explosion of new administrative positions and districts in the case of Poland, the locus of power has changed little. See ‘Reforming Regional Governance in East Central Europe’, 246–7.

David, ‘Lustration Laws in Action’, 394.

Ibid., 414 fn 63.

This assertion was supported by similar allegations made by former Prime Minister Karimierz Marcinkiewicz. See Simonov, ‘Purging Eastern Europe of Evil’; Michael Szporer, ‘Wildstein's List: Time for Moral Cleansing?’, SIEC News (2005), http://www.polishnews.com/text/politics/wildsteins_list.html (accessed 18 May 2007).

Grigorescu, ‘The Corruption Eruption in East-Central Europe’, 517; Paczynska, ‘Inequality, Political Participation, and Democratic Deepening in Poland’, 603–4.

Stan, ‘Politics of Memory in Poland; Vladimir Tismaneanu quoted in Claudia Ciobanu, ‘Court Suspends Council's Inquiries into Secret Service’, Inter Press Service, 11 February 2008 (Bucharest, Romania); Wolek, ‘Lustration as a Struggle’, 147–201.

Huntington, Third Wave, 151–61.

The ‘thick line’ is a reference to the philosophy espoused by Tadeusz Mazowiecku, the first non-communist prime minister of Poland (1989). It captures the policy of drawing a thick line between the past and the future. See Bertschi, ‘Lustration and Transition to Democracy’.

Wojciech Kosc, ‘Poland: Wildstein's List’, Transitions Online, Policy Briefs, 1–7 February 2005. http://www.ciaonet.org/pbei-2/tol-1/tol_2005/feb1-feb7/feb1-feb7g.html

Posner and Vermeule, ‘Transitional Justice as Ordinary Justice’, 825.

Offe, Varieties of Transition; Offe, ‘Coming to Terms with Past Injustices’, 195–201.

Kiss, ‘The Misuses of Manipulation; Barrett, Hack, and Munkácsy, ‘Lustration as Political Competition’, 260–307.

Austin and Ellison, ‘Post-Communist Transitional Justice in Albania’, 374.

Kaminski and Nalepa, ‘Judging Transitional Justice’.

‘Europe's Marxist Dilemma’, The Economist, 24 April 2008, 72. Visegrad refers to the original group of four countries seeking European Union integration, namely the Czech Republic, Hungary, Poland, and Slovakia.

Boed, ‘Legality and Efficacy of Lustration’, 447; Bertschi, ‘Lustration and the Transition to Democracy’, 444; Ellis, ‘Purging the Past’, 192.

‘No Comeback for Gilowska?’, The Warsaw Voice, 9–16 July 2006, 16.

Gerald Owen, ‘A Revolution Purges Its Own’, National Post (Ontario), 12 January 2007; Stan, ‘Politics of Memory in Poland’, 18.

Stan, ‘Politics of Memory in Poland’, 29–30.

For a copy of the list see http://www.humanrightshouse.org/; and ‘Screening Poland's Past: We’ve Got a Little List', The Economist, 12 August 2006, 42.

Stan, ‘Politics of Memory in Poland’, 46.

Lech's five-year term as president of Poland expires in December 2010; Jaroslaw served as prime minister from July 2006–November 2007. ‘Poland's Purges: False Lustre’, The Economist, 19 May 2007, 57.

Judy Dempsey, ‘17 Years of Reform Fall Short for Polish Chiefs’, International Herald Tribune (Paris edition), 2 November 2006, 3.

Tom Hundley, ‘Poland Looks Back in Anger’, Chicago Tribune, 28 November 2006, 10.

Stan, ‘Politics of Memory in Poland’, 18.

In 2007 there was a very public outing of the soon to be Archbishop of Warsaw over collaboration revelations just as he was being appointed to the new position by Rome. ‘Poland and the Past: Tainted Vestments’, The Economist, 13 January 2007, 47; Craig Smith, ‘New Warsaw Archbishop Quits Over Communist Collaboration’, The New York Times, 8 January 2007, http://www.nytimes.com/2007/01/08/world/europe/08poland.html

‘Lustration Law Amended’, PolishNews, Issue 71 (1), on-line news, March 2002, http://www.polishnews.com/fulltext/straight/2002/hotnews71_1.shtml

‘New Law in Poland Aims to Oust Officials Who Aided Secret Police’, The New York Times, 15 March 2007, http://www.nytimes.com/2007/world/europe/16poland.html; and ‘Polish Academics Brace for Anti-communist Come-Clean Law’, Agence France-Presse, 14 March 2007.

Mite, ‘Poland: Tough Lustration Law’.

Ellis, ‘Purging the Past’, 193.

McLaughlin, ‘Thousands May Lose Job in Purge’, 9.

Polish Constitutional Court, Judgement of 11 May 2007, File Ref. No. K2/07 LUSTRATION (Fundamental arguments). English translation by Marek Łukasik, Judicial Decisions, http://www.trybunal.gov.pl/eng/index.htm

‘Professor Bronislaw Geremek, the Member of the European Parliament’, AXIS News, 5 March 2008. Available at www.axisglobe.com/pnnt_news.asp?news=12629, accessed 10 June 2008.

Kaminiski and Nalepa, ‘Judging Transitional Justice’, 384.

Anne Penketh, ‘Poles Apart’, The Independent (London), 28 May 2007, http://docs.newsbank.com/openur/

Andy McSmith, ‘Why Has Lech Walesa Published the Files Kept on Him by Polish Police?’, The Independent (London), 13 June 2007, http://docs.newsbank.com/openur/

Grigorescu, ‘The Corruption Eruption in East-Central Europe’, 517.

‘Poland's Purges: False Lustre’.

See Paczynska, ‘Inequality, Political Participation, and Democratic Deepening in Poland’, for a discussion of rising economic inequality and perceptions of unfairness and dissatisfaction with public institutions in Poland. Mishler and Richard, ‘What Are the Origins of Political Trust; Mishler and Rose, ‘Trust, Distrust, and Skepticism’.

Kosc, ‘Poland: Wildstein's List’.

‘Polish Report Views Impact of Secret Service Reforms, “Unprecedented Suspicion”’, Polityka, in BBC Monitoring European, Warsaw, 4 November 2006.

Economist Intelligence Unit, ‘Poland Politics: The End of the Line?’, EIU Views Wire, 22 September 2006.

Simonov, ‘Purging Eastern Europe’.

‘Screening Poland's Past,’ 42.

‘Polish Inquisition’, 12.

Letki, ‘Lustration and Democratisation in East-Central Europe’.

Los and Zybertowicz, Privatizing the State-Police, quoted in Stan, ‘Politics of Memory in Poland’, 15.

Stan, ‘The Politics of Memory in Poland’, 10.

Kritz, ‘The Dilemmas of Transnational Justice’, Transitional Justice, xxxv; and David, ‘Lustration Laws in Action’, 426.

‘New Law in Poland Aims to Oust Officials’.

Hundley, ‘Poland Looks Back’, 10.

‘Polish Academics Brace’, 10.

This group of ‘young politicians’ has been referred to as ‘Generation 72’, a reference to the 1972 cut-off date for screening. See Derek Scally, ‘Poles Split Down the Middle over Digging Up the Past’, Irish Times (Dublin), 22 January 2007; Osiatynski, ‘Poland Makes Witch Hunting Easier’.

Stan, ‘The Politics of Memory in Poland’, 51.

Cienski, ‘Poland's Anti-Communist Witch-Hunt’, 6.

Memorandum to the Polish Government.

‘Human Rights Commissioner Presents Memorandum on Poland’.

Helsinki Committee, Helsinki Committee of Poland.

Stan, ‘The Romanian Anticorruption Bill’, 18; Lidia Moise, ‘Seven Unsolved Problems That Make Brussels Worry’, Libera, Bucharest, translated in BBC Monitoring Original Source, 7 January 2008; European Commission, ‘Bulgaria and Romania – More Work Needed’.

For details about the Proclamation of Timisoara, especially section 8 that deals directly with lustration, see http://www.ceausescu.org/ceausescu_texts/revolution/procl_tm_eng.htm

Gibney, Prosecuting Human Rights Violations', 97.

Welsh, ‘Dealing with the Communist Past’, 416.

Neculai Munteanu, ‘Daily Views Persisting Influence of Securitate, Communists in Romania’, Ziua, Bucharest, translated in BBC Monitoring European, 4 April 2006; ‘What the Newspapers Say: March 30, 2006’, HotNews.ro, 30 March 2006, http://english.hotnews.ro/what–the–newspapers–say–March–30–2006–articol/_pnnt_42405_Z, accessed 21 September 2006.

Lovatt, ‘Securitate Shuffle’.

‘Romanians May See Own Securitate Files’, Radio Free Europe/Radio Liberty, Southeastern Europe edition, 10 January 2001. Emailed daily news reports, archives available at http://www.rferl.org/info/Newsline+Archive/494.html

‘The Lustration Law Was Passed by the Senate’, HotNews.ro, 10 April 2006, http://www.hotnews.ro/articol_46347-Legea-lustratiei-a-trecut-de-Senat.htm; Ciobanu, ‘Court Suspends Council's Inquiries’.

Konrad-Adenauer-Stiftung, ‘Status Quo of “Lustration” in South East Europe’.

Mirela Corlatan, ‘A Lustration Law for Romania’, Euro-topics, 25 May 2007, available at http://www.auacademic.com/meta/p_mla_apa_research_citation; Catalin Bogdan, ‘Far From Unanimous Condemnation’, Nine o'clock, no. 3835 (20 December 2006): 4, available at http://www.nineoclock.ro/

Ciobanu, ‘Court Suspends Council's Inquiries’.

Annett Müller, ‘Sluggish Processing of the Past’, Euro-topics Magazine, 5 February 2008, http://www.eurotopics.net/en/magazin/stasi-2008-0l/mueuer_vergangenheitsaufarbeitung, accessed 12 May 2008.

Public trust in the courts is low, with high levels of judicial corruption and a lack of transparency. The Court also recently struck down a law requiring public wealth disclosures for dignitaries that was required by the EU as part of a new transparency effort. The objectivity of the Courts has been questioned by both the public and the government on this and related reform efforts. See ‘Constitutional Court: Law allowing the control of dignitaries’ wealth is not constitutional', HotNews.ro, 16 April 2008; Stan, ‘The Romanian Anticorruption Bill’.

‘What the Newspapers Say, May 3, 2006’, HotNews.ro, http://english.hotnews.ro/what-the-newspapers-say-May-3-2006-articol-print_4267_2, accessed 21 September 2006.

‘The Stain of Exposure’, Radio Romania International (17 August 2006), Bucharest, http://www.rri.ro/index.php?lmb=4&art=16460.

Alison Mutler, ‘Romania Secret Police Files an Obsession’, Associated Press News Service (Bucharest), 30 August 2006.

‘Deputies Endorse Law for Revealing Securitate Collaborators’, HotNews.ro, 21 September 2006 update, 11 April 2006 original. Available at http://english.hotnews.ro/Deputies-endorse-law-for-revealing-Seacuritate-collaboraters-articol, accessed 21 September 2006.

The four types of funds are the Criminal Fund, the Operative Fund, the Intelligence Fund, and the Correspondence, Reports, Analyses and Syntheses Fund. The Operative Fund contains information about individuals who were pursued or monitored by the Securitate. The Intelligence Fund includes information on informers and collaborators. The Criminal Fund includes information related to criminal trials. The Correspondence, Reports, Analyses and Syntheses Fund includes historical information about the evolution and structure of the Securitate. ‘Romanian Report: Entire Securitate Archive on Microfilm, Computers’, BBC Monitoring European (London), 30 April 2006.

Adriana Mica, ‘The Lustration with Two Heads and the Myriapod Transitional Justice in Romania’, paper presented at annual meeting of Law and Society Organization. Berlin 25 July 2007. Paper uploaded 2008, http://www.memoria.ro/?location=view_article&id=1881&l=en&page=2

Stan and Turcescu, ‘The Devil's Confessors’, 655–85.

‘A Bad Mark for the Judiciary?’; ‘Where Does Romanians’ Trust Lie?', Radio Romania International (Bucharest), 13 September 2006, http://www.rri.ro/index.php?lmb=4&art=17068; ‘The Romanian Media as Perceived by the Population’, Radio Romania International (Bucharest), 26 July 2006, http://www.rri.ro/index.php?lmb=4&art=15501

Catalin Bogdan, ‘A Past Still Locked’, Nine O'Clock, no. 3640 (16 March 2006), 4; Catalin Bogdan, ‘Securitate, a Persistent Mystery’, Nine O' Clock, no. 3647 (27 March 2006), 4.

‘Deputies Endorse Law’.

‘Romanian Party Leader Sees Ethnic Hungarian Party as Potential Partner’, Magyar Nemzet (Budapest), translated in BBC Monitoring, 24 May 2007; ‘Romania's President Consults Political Parties’, BBC Monitoring Original Source: Rompres News Agency Bucharest, 28 May 2007.

The draft law for the creation of a National Integrity Agency would have directly targeted government corruption. ‘A Bad Mark for the Judiciary?’, Radio Romania International (Bucharest), 13 September 2006, http://www.rri.ro/index.php?lmb=4&art=17068, accessed 21 September 2006.

‘Citizens and National Security Laws’, Radio Romania International (Bucharest), 1 September 2006, http://www.rri.ro/index.php?lmb=4&art=16785, accessed 21 September 2006.

Craig Smith, ‘Eastern Europe Still Struggles to Purge Its Security Services’, The New York Times, International Section, 12 December 2006.

For a discussion of the compatibility problem see Stan, ‘Romanian Anticorruption Bill’, 2; see also ‘The Moral Reform of Justice’, Radio Romania International (Bucharest), 10 July 2006, http://www.rri.ro/index.php?lmb=4&art=15578, accessed 21 September 2006; and ‘Survey: Traffic Police Seen as Most Corrupt Institution Within Romanian Ministry’, Hotnews.ro, 16 November 2007. Archived in http://english.hotnews.ro/

Ciobanu, ‘Court Suspends Council's Inquiries’.

‘The Lustration Law Under Public Debate’, Radio Romania International (Bucharest), 12 May 2006, http://www/rri.ro/index.php&lmb=4&art=14004.

Smith, ‘Eastern Europe Still Struggles’.

‘Time for Moral Cleansing’, Radio Romania International (Bucharest), 7 August 2006, http://www.rri.ro/index.php?lmb=4&art=16238, accessed 21 September 2006.

‘Moral Reform in the Media?’, Radio Romania International (Bucharest), 28 August 2006, http://www.rri.ro/index.php?lmb=4&art=16690, accessed 21 September 2006.

‘Lustration Under Public Debate’.

‘Romanians Rather Indifferent Toward Former Securitate’, HotNews.ro, 29 November 2006 update; 8 May 2006 original edition. Available at http://english.hotnews.ro/Romanians-rather-indifferent-towards-former-Securitate-articol_, accessed 21 September 2006.

‘Romanians Skeptical About the Former Collaborators’ Revelation', HotNews.ro, 29 November 2006 update, 6 September 2006 original edition. Available at http://english.hotnews.ro/Romanians-sceptical-about-the-former-collaborators-revelation-articol_print_423442, accessed 21 September 2006.

‘Draft Law on Lustration Fails Again’, HotNews.ro, 21 September 2006 update, 21 March 2006 original. Available at http://english.hotnews.ro/Draft-law-on-lustration-fails-again-articol_, accessed 4 January 2007.

‘A Hot Summer for Romanian Politics’, Radio Romania International (Bucharest), 10 July 2006, http://www.rri.ro/index.php?lmb=4&art=15579, accessed 21 September 2006; and ‘Romanian President, Opposition, Nationalist Party Criticizes Lustration Bill’, BBC Monitoring European (London), 18 April 2006.

‘What the Newspapers Say: April 03, 2006’, HotNews.ro, original 3 April 2006, updated 21 September 2006.

‘Romanian Political Files Under Scrutiny’, Radio Romania International (Bucharest), 15 August 2006, http://www.rri.ro/index.php?lmb=4&art=16393, accessed 21 September 2006.

‘The End of a Political Career’, Radio Romania International (Bucharest), 4 September 2006, http://www.rri.ro/index.php?lmb=4&art=16856, accessed 21 September 2006; and ‘Top Liberals Expelled from the Party’, HotNews.ro, 4 September 2006.

‘Basescu: The Communist Regime in Romania Was Illegitimate and Criminal’, Nine O'clock, no. 3834 (19 December 2006), 1.

‘Ex-Communist dictator Ceausescu Seen as Best and Worst Political Leader in Romania’, HotNews.ro, 6 December 2007. Available in archives http://english.hotnews.ro

‘What the Newspapers Say: March 30, 2006’, HotNews.ro, 30 March 2006, available at http://english.hotnes.ro/What-the-newspapers-say-March-3002006-articol_print_4205_2, accessed 21 September 2006; ‘President Launches Fierce Attack Against PM on TV’, HotNews.ro, 21 September 2006 edition, 5 April 2006 original, available at http://english.hotnews.ro/Presisdent-launches-fiece-attack-against-PM-on-TV-articol_print, accessed 21 September 2006; and ‘Romania's President Discusses Need to Meet Priorities with Parliament Support’, Rompres news agency Bucharest, translated in BBC Monitoring Original Source, 21 May 2007.

Grigorescu, ‘Corruption Eruption’, 544–5; and ‘Europeans Critical of Romania and Bulgaria’, New York Times, World Briefing, 27 June 2007.

Michael Jordan, ‘Ex-communist Purge Bumps Up Against EU Values’, The Christian Science Monitor, 1 May 2007, 4.

The Czech Republic approved the creation of a new Institute for Studies of Totalitarian Regimes, which will administer the secret police files and continue to conduct research. ‘Czechs To Have an Institute Dedicated to Totalitarian Past’, Deutsche Press-Agentur as translated in Global News Bank, 26 June 2007. East Germany approved a grant to fund efforts to piece together the shredded secret police files in order to address continuing retroactive justice concerns. See Jean-Baptiste Piggin, ‘Computers Restore Ripped Up German Secret Files’, Deutsche Press-Agentur translated in Global News Bank, 9 May 2007. Available at http://infoweb.newsbank.com-iw-search-we?InfoWeb/?, accessed 19 April 2008.