Countries moving from totalitarian rule to authentic democracy have to settle accounts with the past. Persons who committed gross human rights violations must of course be prosecuted and barred from holding public office. It is also necessary to reform and screen the judiciary, law enforcement agencies and the government administration. Countries in transition therefore need to find a sensible approach to those who collaborated with the former Communist system.
Lustration is an administrative measure used by post-totalitarian regimes to exclude from public institutions persons who worked for or collaborated with Communist security services. Vetting is a more general term used for measures to purge from these institutions those who lack integrity, in other words, those who cannot be trusted to exercise governmental power in accordance with democratic principles.
Lustration procedures should follow strict criteria in order to ensure that all cases are treated with fairness. Back in 1996, the Council of Europe’s Parliamentary Assembly proposed guidelines to ensure that lustration laws comply with the requirements of a state based on the rule of law .
The Assembly stated that a person may in no case be lustrated without being furnished with full due process. This should include the following rights:
• to benefit from counsel;
• to confront and challenge the evidence used against him;
• to have access to all evidence;
• to be able to present one’s own evidence;
• to have an open hearing if one so requests; and
• to appeal to an independent judicial tribunal.
Furthermore, the Strasbourg Court concluded in a 2006 case that if a State is to adopt lustration measures, it must ensure that those affected enjoy all procedural guarantees under the European Convention of Human Rights (Turek v Slovakia).
Experience has shown that even the most urgent vetting exercise could get compromised if strict procedures are not followed. In December last year, I visited Sarajevo to discuss complaints from 260 police officers who had been barred from police service (decertified) through a vetting procedure organised by the UN International Police Task Force. The possibility for the police officers to challenge the merits of the decision to decertify them was very limited.
The decision not to grant a certificate was for life and therefore had a serious economic and social impact for the individuals concerned. The UN decision had also given them a certain stigma in society which had further worsened their situation. This goes to show that vetting is a very complex process which must be handled with great caution.
Under the new Lustration law in Poland, which just came into effect on 15 March, a vast number of professions – including judges, lawyers, tax advisors, certified accountants, court enforcement officers, journalists, diplomats, municipal officials, university teachers, heads of public and private educational institutions, heads of state controlled companies, and members of the management and supervisory boards of companies listed on the stock exchange – will have to make a declaration as to whether they co-operated with state security organs of the Polish People’s Republic (PPR) from 1944 to 1990. This declaration is then verified by the Polish Institute of National Remembrance. Where there are any doubts as to the truth of the declaration, court proceedings can be brought, which could result in the person losing his/her job. The refusal to submit a declaration as to past collaboration may also result in losing one’s job.
During my visit to Poland at the end of last year, I was informed that the new law could affect more than 300,000 people; the current government figures are now in the region of 700,000 people. The scope of the new law is extremely broad and one can wonder whether people in all these professions really pose a significant danger to human rights or democracy, especially given the time that has elapsed since the system change.
Indeed, these procedures give little room for the possibility that individuals may have changed their attitudes and habits during the years which have passed since the overthrow of the Communist regime.
Relying on illegally collected information, stored in incomplete secret services files, is in my opinion problematic. Fair vetting procedures can hardly be based on such archives.
Some countries have opened up their secret service files for public examination, such as Germany, where an office has been created for this purpose. All persons affected should be able to examine the files kept on them by the former secret services.
However, the privacy of individuals, victims and witnesses must also be protected according to human rights standards. It could easily happen that files are leaked and that unsubstantiated information cause damage to the reputation of individuals. This would violate the principle that everyone should be seen as innocent until guilt is proven through just procedures.
Lustration is only one aspect of dealing with the past. Prosecuting those responsible for serious crimes, providing compensation to victims, uncovering the truth and educating about the past are other necessary measures which should all complement vetting procedures.
The Council of Europe Parliamentarians stated in their 1996 resolution that “the key to peaceful coexistence and a successful transition process lies in striking the delicate balance of providing justice without seeking revenge”.
Any risk that the vetting process is misused for political or personal reasons has to be prevented. This requires very strict and fair procedures. It must be made clear that revenge and justice are not the same.
Thomas Hammarberg
NB : In 2003, the International Center for Transitional Justice (ICTJ) launched a major research project, because it considered that vetting had received little systematic attention. On the basis of its research, the ICTJ developed operational vetting guidelines which were published in 2006 by the Office of the UN High Commissioner for Human Rights.