 
|
|
  
|
|
Lustration as Political CompetitionVetting in HungaryExecutive Summary
Elizabeth Barrett, Peter Hack, and Ágnes Munkácsy
A lustration process in Hungary was not explicitly considered during the Round Table talks in 1989 at which Hungary's transition from a communist regime to a democratic system was negotiated. However, government and public support grew slowly out of fears that the communist state's security services retained influence in the new democratic system, and that the existence of security services documents and files from the communist era might disrupt the functioning of the new democratic system. The initial motivation for lustration was to prevent blackmail and other abuses, and only after 1995 did the debate become more concerned with a general moral cleansing of society. Demands for a lustration law occurred first in 1990 and consistently over the following years, although the first one was not passed until 1994 and lustration was thereafter implemented in a rather patchy and reluctant manner. Between 1992 and 2002 public opinion surveys suggest that there has been a consistent demand for some kind of lustration policy from the Hungarian population, with 50 percent of the population supporting the publication of information regarding former secret agents. The first parliamentary election in 1990 brought together a coalition of three center-right parties. The first draft of a lustration law focused on disclosure by creating a register of all people who had served as top-secret officers or network members for the Ministry of the Interior Section III, Directorate III (III/III), and individuals who remained in public office. This bill was voted down, due to fear of political abuses associated with the lustration process in which disclosure could be used to discredit the opposition. On April 5, 1994, the parliament adopted Act XXIII/1994, initiating the vetting process. The public positions determined to be liable included a broad sweep of offices from parliamentarians to senior public administrators. Investigation was intended to establish whether these individuals had engaged in specified activities relating to the Ministry of the Interior III/III directorate. If the investigation found that a person had been involved in relevant activities, s/he was given the opportunity to resign from his public position, in which case the information would not be made public; if s/he chose to retain his position, the court could issue a decision and make the information public. Thus, the only sanction of the law was the threat of disclosure. The Constitutional Court proclaimed the main provisions of the law unconstitutional. In 1996, Act LXVII responded to the rulings of the Constitutional Court and established a Historical Office (HO) where all documents of the III/III career officers not relevant to contemporary national security issues were to be placed. This law provided the sufficient legal conditions for exercising the right of informational self-determination. Act XCIII, adopted in 2000, extended the list of those who should go through lustration, mainly to media representatives. In 2001, Act LXVII converted the HO into archives where the documents of the present public security organizations should be placed in addition to the documents of the former security organizations. On June 18, 2002, it was disclosed that current Prime Minster Peter Medgyessy had served as a top secret officer in the III/III directorate. Two new drafts, adopted in December 2003, established a new Public Security Services' History Archive and brought together all of the security service directorates' documents in one location. The new legislation represents a significant shift in policy, changing the focus from the process of vetting those in public positions to how the state should deal with information gathered by the former regime's security services. The law provides for the disclosure of information rather than just the threat of disclosure. It states that anyone can request data and files collected by the former secret service related to him or herself; anyone can request the files of people who are or have been in public office; and in the case of those in public office, some very limited information about an individual's relationship to any of the security service directorates can be published. According to the 1994 law, vetting is carried out by two or three commissions, composed of three judges per commission, nominated by the National Security Committee in agreement with the President of the Supreme Court and elected by parliament for a fixed period (renewable indefinitely), normally two years. Of the six judges elected in 1995, four remain Commission Members, reflecting a high degree of consensus across the parties. In 2000, five new judges were appointed, bringing the total to nine. The law determines the order of those to be investigated by categories of "importance," beginning with Members of Parliament (MPs), the President, and members of government, through high-ranking public servants, media representatives, and members of local governments and the judiciary. In December 2003, the Lustration Commission reported that 7,872 persons had been vetted, of whom 20 were not suspected of serving as agents but rather were people who had received information from agents, and that 342 had volunteered for self-screening; 14 requests were refused because the positions were not liable for vetting. In only 141 cases (concerning 115 former agents), were any suspicious or incriminating data found. Of these, 24 individuals left office and ceased to be liable for vetting, and 14 investigations were terminated. The Lustration Commission issued a "dispensation" in 42 cases, and in only 15 cases were the decisions published. Two cases are currently before the courts and 29 are being investigated. The Report of the National Security Committee stated that there remained 43,983 No. 6 cards (the card of every agent in the III/III registry) relating to 27,133 network persons. Of the 8,000 individuals investigated, the Commission proved III/III related activity in only 29 cases. Twenty-four of those persons resigned from office and the Commission published decisions relating to five people. In sum, incriminating data have been found in 114 cases, of which almost one-third chose to resign from office. The Commission has screened every member of three parliaments, as well as the highest-level officials in public service and the media. Members of Parliament are subject to vetting, but because only a tiny fraction of the Commission's work is made public, it is impossible to say who was vetted. The Commissions have published only two decisions relating to MPs, both in 1997. Five people who later became MSZP politicians were initially vetted; when they subsequently became MPs, the Commission re-published these decisions. As of June 2004, Members of the European Parliament became liable for vetting. According to the 1994 law, party officials and members are not to be screened. In 2000, regional and county-level party presidiums can be investigated, but only those from parties that are supported by the central budget. No judges or prosecutors have been screened, and the group was omitted in the 1996 modification. Ombudsman, members of the Constitutional Court, the President and Vice-President of the Supreme Court, the Chief Prosecutor and his deputies can be investigated. In 2000 an amendment reintroduced the categories of judges and prosecutors. To date, only the judges serving in the Commission have been screened. At the level of public administration, the 1994 law also ordered the screening of heads of ministerial departments, including mayors of local governments and heads of universities and colleges (if the state is the majority owner). In 1996, the scope of public administration screening was limited to the highest levels of public administration: the President of Hungary, the members of the Cabinet and other high-level public administrators. The 2000 law did not extend the vetting categories. The police were to be vetted down to the level of chiefs, and were treated as a subset of public administration. At no stage did any movements for a deeper vetting of the military or police occur. The Commission did not publish any decision in the public administration category. Although the 1994 law included a more expansive screening of the media, the 1996 law amended the mandate to encompass only the presidents and vice presidents of the Hungarian Public Television and Radio, and the Head Manager of the Hungarian New Agency. In 2000, the scope was widened to "those, who have the effect to influence political public opinion either directly or indirectly," although the interpretation of this provision was left to the Commission. The Commission created a list of newspaper owners, journalists, radio and television stations, and in 2000 allowed journalists, who did not fall under the purview of the law, to apply voluntarily for screening. In 2003, of the estimated few thousand journalists investigated, only three were found to have performed relevant activities. The procedure of the Commission is based on the 1996 Administrative Procedure Act and comprises the following steps: Identification of Persons Who Should Be Vetted Under the Law Although the law determines what kinds of positions should be screened, the individuals to be vetted must be identified. In the case of civil servants, the law is very clear about the positions. However, the process of identifying those who fall under other less clearly defined categories, such as the press, is sometimes problematic. Collection of Data from the Register of the III/III Judges did not collect data relating to the person under investigation themselves, but received it-initially from the Ministry of the Interior, and since 1997, from the HO. The Commission provided a list of the individuals to be vetted, after which the officials of the Ministry and later the archivists of the HO searched the register. They were required to send to the Commission data which indicated involvement in the activity defined in Section 1 of the law. The Commissions have undertaken additional research in other archives, in some cases turning to the previous employer of the vetted individual for old personal files. It has also been able to find witnesses. The HO submitted a report annually to parliament, including an account of work done for the Commission. Hearings were preformed in all cases until 2000, when the policy was changed to hear only those cases in which incriminating data was found. The vetted person is first informed that incriminating data have (or have not) been found, and the relevant documents are presented at the first hearing. The individual is given the opportunity to question the validity of the case. Legal representatives are able to attend the hearings, and the individual may have legal representation during the court procedure. According to the Administrative Procedure law, the judges have an unlimited right to evaluate evidence and the Commission requires at least two kinds of data for proof of activity with the III/III directorate. The most commonly found document, the No. 6 card (the card held by every III/III agent), is not legally sufficient without a second piece of evidence, for fears of falsified No. 6 cards and forced registration with the III/III. The Constitutional Court recognizes that the current files are incomplete, and in some cases inauthentic, and makes it clear that the burden of proof does not rest with the person being vetted. In 1994, the Constitutional Court allowed additional evidence, including witness statements, but gives primary importance to Ministry of the Interior documents. Documentation has rarely proved indisputable, and the Commission has been mostly limited to using No. 6 cards and indirect evidence, i.e., financial documentation showing that an agent received a payment or reward. The Commission can issue a declaratory decision, dispensational decision, or a decision to terminate the procedure. It declares whether the person preformed the activities, states those facts, and communicates the decision to the person without delay, and the decision is made by secret majority voting. If the individual is found to have preformed the activity, the Commission calls upon the person to resign within 30 days or initiates a procedure to relieve him or her from office. In the event that the individual does not resign, the Commission informs the person that the decision will be made public, and gives the person the option of appealing the decision. Thus, according to the law, those who leave their offices voluntarily are exempt from the sanction of the law. Of the 21 decisions published by the Commission, five are related to former agents (two post-transition MPs and three journalists) and one to a former career officer; the remaining fifteen received data from agents. The 1994 law provided access to judicial review of the Commission's decisions, which has the capacity to delay the publishing of the decision. If the court finds that the Commission ruled against legality, the Commission starts a new procedure. Both the investigation and Commission procedure can take several months, and the Court procedure usually lasts for one year. In total, the whole process can take up to two years. The debate surrounding the scope of the lustration policy has centered on two issues: which public offices are liable for vetting, and what activities performed by the security services are to be regarded as relevant. Although some offices are clearly within the scope of the law, such as parliamentary members and the President, other positions have proven more problematic. A 1994 resolution sought to clarify the positions, and allowed for non-state posts to be vetted. This extension included the media; it was further amended in 1996, requiring only those media representatives who were appointed by parliament to be vetted. In 2000, an amendment broadened liable positions to include professional judges and state attorneys, and debate shifted towards the possibility of vetting church officials. The final version of the law in 2003 limits the scope to persons falling into the category of "public activity." The decision to limit lustration to the Ministry of the Interior Section III, Directorate III (III/III), reflects both the limited public knowledge of the extent of the security services during the communist era, and the reluctance on the part of the main political parties to extend the scope to other branches and personnel of the security services. Accusations that lustration has been used for political competition abound, and often changes in the law reflect shifts in the political interests of the parties promoting them. Although the politicization of lustration is perhaps inevitable, it has been exacerbated in Hungary because of the absence of a generalized public disclosure of files. Lustration has not increased transparency in the political sphere because citizens cannot be sure that a serving MP did not work for the communist-era security services. Only with the passage of the 2003 law will the wider public be more involved since it will gain access to the files. Lustration will not fulfill the aspiration of a moral cleansing of society. However, other outcomes cannot be determined, such as the deterrent effect the lustration laws had against former agents taking public positions. It is also not clear whether another form of historical justice would have been preferable, although a combination of methods might have proved most appropriate. As the lustration process comes to an end, debate continues about how to handle the information gathered by the security services after the completion of the vetting. Some argue for unlimited access, while others prefer destroying all the documents of the communist-era security services.
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).
|
