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Oppressors and Their VictimsThe Czech Lustration Law and the Rule of LawExecutive Summary
General criticisms of the lustration law in the Czech Republic often fail to distinguish between different groups of individuals affected by it and, like the statute itself, make no distinction between the communist oppressors and their victims. Contrary to these views and despite the lustration law's justifications using the rule of law argument, the statute fails to distinguish between oppressors and their victims. The law's purpose, which is to defend emerging public administration and democratic government, has been compromised by the harms it causes to many innocent and brave individuals. Ultimately, justice has a complex nature and there are limits to the legal means of dealing with the communist past and its crimes and injustices. The Czechoslovak lustration law was formulated in Act No. 451/1991 and Act No. 279/1992, which determined the conditions for holding specific offices in state bodies and corporations of the Czech and Slovak Federal Republic, the Czech Republic and Slovak Republic, as well as in the police force and prison guard service in the Czech Republic. The lustration law arose from the idea that post-communist Czechoslovak society had to deal with its past and facilitate the process of de-communization through legal and political means. It specified top offices in state administration that would be inaccessible to those who had political responsibilities and exercised power during the communist regime. The law also responded to the practice of "wild lustration," which had been going on since 1990. In 1991, Act No. 451/1991, which included some 100 amendments, was enacted with the support of only 49.3 percent of the members of the Federal Assembly (passing as a result of the abstention of 70 MPs). Based on a person-by-person specific vetting principle, the law provided two lists of offices and activities liable for vetting: the first contained offices requiring lustration before the individual could take the position; and the second enumerated power positions held during the communist regime which disqualified candidates from applying for jobs listed in the first. Despite a wide range of public offices subjected to the lustration procedure, positions contested in the general democratic elections have not been affected by the law. Offices protected by the lustration law included: all ranks of the judiciary and the prosecution office; the civil service at the head-of-department rank and higher, and senior administrative positions in all constitutional bodies; the army and police force positions of colonel and higher; all intelligence services specialized in political surveillance and persecutions (exceptions could be granted by the Minister of Interior on national security grounds); all management positions in the national bank, state media, press agencies and state corporations or corporations in which the state is a majority shareholder; university administrative positions at the head-of-academic-department level and higher; and the board of directors of the Academy of Sciences. Disqualifying positions and activities were linked to the following: a) political bodies; b) repressive secret police, state security and intelligence forces; and c) individuals collaborating with the forces. Political disqualifying positions included: Communist Party secretaries at the district-secretary rank and higher; members of the executive boards of district Communist Party committees and higher; members of the Communist Party Central Committee and political propaganda secretaries of those committees; members of the Party militia; members of the employment review committees after the communist coup in 1948 and the Warsaw Pact invasion in 1968; and graduates of the Communist Party propaganda and security universities in the Soviet Union and Czechoslovakia. These jobs and memberships were assumed to constitute a risk for the post-1989 democratic regime. Exceptions were made for those party secretaries and members of the executive boards of the party committees holding their positions between January 1, 1968 and May 1, 1969, that is, during the democratization period of the "Prague Spring 68." Regarding the security, secret police and intelligence service positions, the following were enumerated by the law: senior officials of the security police from the rank of departmental chiefs upwards; members of the intelligence service; and police members involved in political persecutions. Nevertheless, the law originally allowed the Minister of Interior, the Head of the Intelligence Service, and the Head of the Police Force to pardon those members of the former secret police whose dismissal would cause "security concerns." The category of secret police collaborators was divided into three sub-categories: a) agents, informers and owners of conspiratorial flats; b) trustees or conscious collaborators; and c) candidates for collaboration, who did not necessarily consciously collaborate and often were just the subject of police surveillance and interrogation. The lustration laws applied to many institutions in the social sphere from the judiciary to the policy to the legislative. Yet, the lustration law, as originally written, ran into difficulties in implementation across these institutions. For example, the listing of activities of citizens related to the secret police (category C) generated serious controversy because it was difficult to determine whether a person's actions represented conscious collaboration with the police, un-intentional cooperation, or victimization. It was often technically impossible to distinguish secret police collaborators from their victims. After a public outcry and numerous legal complaints, the Constitutional Court annulled category C in 1992. However, the Court upheld the law's constitutionality in general, and stated that it did not violate the major international human rights conventions. The Independent (Appeal) Commission, established to review positive lustration certificates, consisted of the following members: a Chair, a deputy Chair, one member appointed by the Chair of the Parliament, two members appointed by the Minister of the Interior, one member appointed by the Minister of Defense, six members appointed by the Chair Committees of national Parliaments, and one member from the Czech Minister of the Interior and one from the Slovak Minister of the Interior. The appointment procedure, a strange mixture of democratic elements, administrative hierarchies, and attempts at equal representation of both nations, demonstrated the control of the lustration process exerted by the executive branch and Parliament. The staff handling the lustration process consisted primarily of administrative staff from the Ministry of Interior, which was responsible for the archive and protection of the communist secret police files. The position of the Independent Commission was specific because it was to deal with citizens' complaints within the framework of an administrative procedure, before any judicial review, and on the basis of a rigorous and confidential fact-finding process. After the judgment of the Constitutional Court in 1992, which declared the incorporation of the category C into the law unconstitutional, the Commission's work became unnecessary and the body was dissolved. The lustration process subsequently became fully administered by the Security Office of the Ministry of Interior, which issues the lustration certificate. The certificate is an administrative act against which a citizen can file an administrative complaint and even a civil suit. Regarding the procedure, an individual has to apply for the lustration certificate at the Security Office of the Ministry of Interior. Any person can apply for the certificate and the Ministry has a duty to issue it. The certificate is mandatory only for those holding or applying for jobs listed in the lustration law. An organization can apply for lustration of its employee only if her job is subject to the lustration law. In the case of a "positive lustration" result, an applicant can submit an administrative complaint to the Ministry and, if the original finding remains unchanged, file a civil suit against the Ministry demanding the protection of "personal integrity." The law targeted Communist Party officials and Party militia members, but not general Party members. Even individuals who ended up with a "positive lustration" record could apply for any office contested in the general elections, as those positions were not subject to the law. However, an overwhelming majority of the political parties introduced self-regulatory policies, which demanded all candidates to submit a "negative lustration" certificate before running. Available figures show that around five percent of all lustration submissions resulted in "positive certificates" disqualifying the applicant from office in the mid 1990s. The most recent figures indicate a decline in "positive lustration" results of the screening to approximately three percent of all applications received by the Ministry of Interior since the enactment of the lustration law in 1991. The Ministry currently receives between 6,000 and 8,000 lustration requests per year and the total number of lustration certificates issued between 1991 and 2001 was 402,270. The lustration law, originally enacted for five years, has been extended by Parliament several times, even though one of the main justifications for the law was its temporary effect. The Constitutional Court upheld the prolongation of the lustration policy in 2001, stating that the law should be perceived as a temporary measure, but that it still protects an "existing public interest" and "legitimate aim." The lustration rules have become an intrinsic part of the Czech legal system, and were supplemented by further vetting procedures required for NATO membership. In 1998 the Parliament set up the National Security Office to be responsible for the protection of all secret data and vetting all individuals with access to them. This act de facto expanded the lustration law restrictions to other parts of civil service and state administration due to the security checks required by NATO's internal directions. Public opinion polls indicate a steady decline in support for the prolongation of the lustration law. However, a proposal to abolish the law was defeated in Parliament in 2003, although it spurred major disputes. The contrast between the disinterested public and heated political debates captures the current state of the policy. The Lustration Act and a "Democracy Defending Itself" Czechoslovakia's revolutionary history greatly informs the current lustration policy. The logic of the political conflict was based on the concept of the "enemy" who needed to be neutralized and removed from power. The absence of any round table talks, power concessions or negotiations before the outbreak of public protests resulted in the regime change being dominated by an opposition of "us/friends/revolutions" and "them/enemies/nomenklatura." This "urge to purge" state institutions and individuals linked to the communist regime reinforced the legal justification of the law as "a democracy able to defend itself."[1] The general principle was to strengthen public trust and the legitimacy of the new liberal democracy. Despite its concern for democratic legitimacy, however, the lustration law proved highly controversial because it violated the first precondition of justice and the rule of law-equality of all before the law. The lustration policy weakens equality because it administratively discriminates against specific groups of citizens by denying them access to public offices. Lustration and Other Forms of "Dealing with the Past" Post-communist Czech society opted for parliamentary legislation, both pragmatic and symbolic, instead of other transitional justice methods such as truth and reconciliation commissions. However, the1993 Act of Lawlessness of the Communist Regime and the Resistance to It condemned the regime, made communist supporters responsible for its injustices, and praised those who resisted the regime. Although primarily symbolic, the concept of "responsibility" raised both hopes and fears of prosecutions for political crimes. Upon review by the Constitutional Court, the Act was upheld as a symbolic law that could not have any practical impact on the criminal law statutes. In place of a body such as a truth and reconciliation commission, Parliament established the Office for Documentation and Investigation of the Crime of Communism in 2002 as a "moral institution." The office was charged with collecting and archiving information to map all injustices, atrocities and crimes related to the communist regime and its officials, and to create a memento for future generations. In addition, it had the criminal justice task of filing cases and prosecuting individuals who are still subject to criminal liability, acting as both a symbolic and pragmatic institution. In 1996, Parliament enacted the Act of Public Access to Files Connected to Actives of Former Secret Police, No. 140/1996, which granted access to persons potentially affected by the secret police. In 2002, the main registers of the secret police and collaborators became available to the general public. However, the Ministry protects the constitutional rights of personal integrity and privacy, and therefore the information given to applicants must be related to the activities of the secret police, and not related to, for instance, their marital life or health problems. This policy resulted in a number of legal cases, in which individuals demanded their names be removed from the registers and their moral reputation re-established. Parliament also enacted laws with practical purposes which benefited the individual victims of the communist regime. The Act of Judicial Rehabilitation, No. 119/1990, legislated full rehabilitation of individuals unjustly prosecuted and imprisoned, and various restitutions for properties unlawfully confiscated by the communist regime. Lustration and Legal "Retrospectivity" The lustration law was criticized for weakening the principle of legal certainty, encouraging the arbitrary use of law, and having a retrospective effect. The law has a dual character of both prospective and retrospective legislation: it regulated conditions for future jobs and office applications, and defined actions and positions held in the past that have become ground for administrative discrimination in the present and future. It is not retrospective in the sense of criminal liability. Jurisprudence describes retrospective legislation as a possible remedy of past injustices and a form of punishment for crimes that could not be prosecuted in the past. Lustration must be treated as a controversial element of the emerging rule of law and not as its mere denial due to retrospective elements. Some critics also claimed that the law incorporates the principle of collective guilt and responsibility unacceptable to the rule of law. However, individuals are held prima facie responsible for their past political engagements, and the law remained far short of banning all communists and communist policemen from access to public offices. Totalitarian systems have the power to make all individuals more or less part of their machinery. In the moral sense, almost everyone was a perpetrator and a victim at the same time. In any critique of the lustration law, it is therefore necessary to start by focusing on the personal aspect of the legislation and distinguishing two different groups of individuals: oppressors and their victims. It is one of the worst moral consequences of the statute that it made both groups subject to the same lustration process and subsequent discrimination. The lustration law could not separate victims from their oppressors and its moral and symbolic effects were therefore extremely controversial. It set up a paradoxical strategy of discrimination in an emerging democracy, although this is the case in a number of political transformations from totalitarianism to liberal democracy. The lustration law fulfilled its role as a filter, separating former political enemies from new democratic institutions, and, contrary to claims that the statue instigated an atmosphere of fear and suspicion, the policy has contributed to the stabilization of the Czech post-communist society. It contained the process of "wild lustration" and reduced social anxiety about new political elites. However, because the lustration process was handled by state bureaucrats, it has inhibited public discussion of the country's past. The lustration policy has also isolated the old political enemy, and strengthened opposition and communist extremism. But taken from the perspective of jurisprudence, no reconstruction efforts proceed without contradictions and logically paradoxical solutions. Lustration must be taken as part of the broader policies of de-communization, which targets the personal aspect of the whole process of post-communist political and legal transformations.
Click here for the full text of this chapter as it appears in Justice as Prevention: Vetting Public Employees in Transitional Societies, ed. Alexander Mayer-Rieckh and Pablo de Greiff (New York: Social Science Research Council, 2007).
[1] Quoted from the Judgment of the Constitutional Court No. 9/2001Pl US, 17.
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