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The Politics of the Lustration Law in Poland, 1989-2006Executive Summary
In Poland, the question of dealing with the communist past, formulated broadly as the "lustration issue," remains very contested. The Polish lustration law, passed on August 3, 1997, is the outcome of a legislative compromise. It penalizes the telling of a "lustration lie" only, rather than membership in or collaboration with communist secret services. It is not radical in terms of penalties, but does define broadly the groups required to undergo the lustration procedure. This paper goes beyond a "black letter" analysis of the law to consider questions such as why the lustration law was adopted so late, why it is so "soft," to what preliminary outcome its introduction has led, and what obstacles it has faced in its full implementation. The "lustration issue" crystallized around three points: (i) lustration proper: barring former collaborators and secret services members from public office; (ii) access to secret services files; and (iii) de-communization: strategies to eradicate communism's social and economic legacies. These issues were and are hotly debated. Quite often it is very difficult to separate them, even analytically, especially lustration from de-communization. There have been three phases since 1989 in Poland's approach to the lustration issue, the legislation, and its legal implementation. The first phase, between 1989 and 1992, was characterized by chaotic debates about dealing with the past, only part of which concerned lustration. In May 1992, the Sejm obliged the Minister of Internal Affairs to present full information about higher civil servants and members of both parliamentary chambers who were secret collaborators with the communist secret police. A list of 64 names was created, but the Constitutional Tribunal ruled the action unconstitutional, finding that the Sejm's resolution violated individual dignity and did not provide any protection for persons screened. In September 1992, the Sejm started debate on six different drafts of a lustration law. Two were "soft," proposing only verification and making public knowledge instances of collaboration with secret services. Others were more severe, proposing a ban on collaborators and persons who held positions as executive officers in the communist party from holding public positions in the new state. The second phase, between 1993 and 2001, involved attempts to clarify the lustration issue and create the legal-institutional framework to deal with it. In the Sejm's debates, one could distinguish three positions: strong opponents of lustration, strong advocates of radical lustration, and a centrist position that favored restricted lustration. After much debate and many drafts, the Sejm adopted the lustration law on April 11, 1997. It established a mixed model of broad (a broad range of people were objects of the law), but not radical, lustration. It was a compromise in that it only punished the telling of a "lustration lie," not people who had consciously collaborated with the secret services. On June 18, 1998, a more radical version was adopted, but afterward attempts were made to soften it. The third phase, following the 2001 election, was characterized by legislative attempts to restrict the scope of lustration. The post-communists initiated a series of amendments aimed at making lustration meaningless. The most important was an attempt to restrict the types of facts that could be used as evidence of "collaboration" or "service." The majority of the amendment was struck down by the Constitutional Tribunal. Another proposed amendment limited the definition of "collaboration" such that most forms of what is understood as collaboration were excluded from the lustration process. This restriction was inspired by a Supreme Court judgment, rightly criticized as unjustified judicial activism. The lustration statute does not include a definition of "lustration," a term that has different definitions in different countries. In Poland, lustration is used narrowly as the public unveiling of individual connections with the secret services by persons holding public office or candidates for public offices in the newly democratic state. Those who supported the lustration law believed it would guarantee a minimum level of civility in political discourse, provide citizens with the information to make informed political choices, and defend people affected by the lustration procedure from manipulation and blackmail. The statute imposes a duty on people who were adults according to law before the transfer of power in 1989 and who hold or are candidates for enumerated public positions in the state to make a statement regarding their work or collaboration with secret services. Lustration statements consist of a declaration that a person did or did not work or collaborate with institutions of state security (made public) and details of work or collaboration in the case of a positive statement (not made public). Those who declare that they were members of or collaborated with the secret services can still be candidates for public office; its significance is left in the hands of the electorate. The lustration law penalizes only a lie about collaboration, not the collaboration itself. The lustration law designates three necessary elements in the lustration process: institutions of state security during the communist regime; persons holding public office; and past collaboration with institutions of state security under the communist regime. The security institutions of the state are all secret services in Poland between 1944 and 1990, and military and civil institutions of foreign countries which fulfill the same role. The law sets out persons holding public office as: the President of the Republic, MPs, senators, and persons nominated or elected to executive functions in the state; head of the civil service; directors in ministries, central offices and vojevodship offices (state regional administration); judges, procurators, and advocates; members of the board of Polish TV and Polish Radio; directors of regional centers of TV and radio; the director of the Polish Press Agency; and the director of the Polish Information Agency. Collaboration is defined as: "conscious and secret collaboration with operational or investigating units or organs of the state security as a secret informer or helper with the gathering of information." However, there are certain defined limitations to the definition of collaboration. An amendment excluded collaboration with state security institutions imposed by law, since collaboration in such cases was a legal duty imposed on individuals even if against their will. Commissioner for the Public Interest The Commissioner and two Deputy Commissioners are nominated by the Chief Justice of the Supreme Court from among the candidates eligible to become judges who have broad legal knowledge and who were not collaborators with the secret services according to the understanding of the statute. The Commissioner represents the public interest in the lustration procedure. S/he analyzes the lustration declaration, gathers the information necessary for its evaluation, and starts the lustration procedure before the Court. Initiating the Lustration Procedure The lustration procedure can be initiated by the Commissioner (or Deputy Commissioners) when there is doubt that a lustration statement is true. The Lustration Court can begin the procedure upon petition by a person who stated that s/he collaborated under pressure (threats to the life or health of that person or close relatives). Procedure before the Lustration Court The case is heard by three professional judges. The procedure is regulated by the Code of Criminal Procedure, all provisions of which apply to the person accused of collaboration. The Court can hold closed hearings. The procedure ends with the written decision of the Court, which can be one of three types: stating that a lustration declaration was untrue; stating that a declaration was true; or terminating the procedure due to lack of evidence of the veracity of the declaration. Within 14 days, parties can appeal the Court's decision. The appeal is heard by three professional judges, of whom at least two must be judges of the appellate court. An appeal is heard at the same Lustration Court but with different judges. From the decision of the court of the second instance, parties have a right to cassation. Cassation is heard by the Supreme Court within three months. The lustration procedure can be reopened, after a legally valid judgment is made, in two cases: ex delicto: when an illegal act took place with impact on the Lustration Court judgment; or de novis: when, after promulgation of a legally valid judgment, new facts are discovered which put in doubt a lustration declaration. The only sanction for an untrue lustration declaration is the loss of moral qualification to hold public office for 10 years. Some professionals, e.g., retired judges, also lose their retirement pensions, based on the legal construction that judges do not retire but are in non-active service after retirement. Functioning of the Lustration Law Due to the lustration law's brief history, it is easier to illustrate some of the problems with its functioning than to make an overall holistic evaluation. We have to keep in mind that the stated aim of the law was the security of the state and the elimination of potential political blackmail. In Polish public opinion, there is another aim not explicitly stated in the statute: the realization of some sort of transitional justice. Lustration, in public opinion, is a substitute for de-communization. It is doubtful, however, if this second aim is being achieved, even partially, by the lustration law. This is due to the limited nature of lustration, which restricts sanctions to lustration lies. Nevertheless, the connection of lustration with transitional justice made the topic not only "hot" but sometimes explosive. Several points of contention were raised in discussions of the lustration law and procedure: the appointments and accountability of the Commissioner and Deputy Commissioners, the order of verification of lustration declarations, and the secrecy of the procedure. Furthermore, leading opinion-makers in the media covered the lustration process in a critical, if not negative, way, aiming to turn the public against it. Since the lustration process began, the Commissioners' reports have contained a number of complaints, about (i) the law's impotence, (ii) the need for objective media coverage of lustration activities, and (iii) procedural delays before the court due to absences of persons under review. The lustration law operates within an institutional setting which plays an important role and brings with it a number of problems; the biggest was the impossibility of creating a Lustration Court pursuant to the first version of the statute. This obstacle was overcome by the June 1998 amendment which created the Lustration Court as a special division of the Appellate Court. One of the most controversial issues connected with the functioning of the lustration law was a decision of the Minister of Justice/Procurator General to fire three procurators who had made positive lustration declarations admitting their collaboration with the secret services. The law itself does not include such a sanction in its provisions. Nevertheless, the decision was based on the idea that the people in question had lost the necessary moral qualification to perform functions connected with their offices. Disciplinary sanctions applied by institutions to persons who have made positive lustration declarations are a side effect or an extension of the lustration statute. Thus, lustration is at times confused with de-communization. The Lustration Law in Public Opinion Public opinion polls in December 1996 revealed that 72% of respondents were convinced that many high-ranking officials had previously been informants and collaborators with the secret police, and 77% believed that such officials should be removed from office. Polls conducted in June 1994 and December 1996 indicated that 57% of the population supported lustration. The public's opinion of lustration became more negative after the law became operational. From 1994 to 1999, support for lustration dropped and negative evaluations increased: a decisively negative opinion was expressed by 40% of respondents and a decisively positive by only 26%. Fifty-nine percent felt that lustration had a bad impact on political life, while only 26% believed it improved it. Forty-seven percent of respondents considered the lustration process too slow. Nevertheless, over time, support for lustration has remained high and steady. Evaluation of the lustration law should be rooted specifically within the Polish context and not based on abstract, universal criteria. The context in the Polish case is rather fragile as far as democratic institutional infrastructure and legal culture are concerned. One of the aims of the lustration law was to help to build a democratic and legal culture by providing citizens with information about the prior involvement in the operation of the secret services of the communist regime of people aspiring to hold public offices; in this way, the idea was that citizens can make informed choices. The lustration law, by making public knowledge the names of those who confirm their collaboration, frees them from potential political blackmail. Lustration in Poland is not focused on revenge or the elimination of certain groups of people from power but on the penalization of lies. All necessary elements of the rule of law, such as presumption of innocence, broad rights of the defendant, and proper court procedure, are observed. Lustration in post-communist countries does not serve the same function as security clearances in liberal-democracies. Lustration is one of the legal devices for dealing with the past, alongside other procedures such as de-communization, restitution of property, and trials for perpetrators of crimes committed under the communist regime for political reasons. Lustration or its absence is very much connected to the project of building a new type of society and polity. Lustration and de-communization in Poland became an issue when a real struggle began for the future social and institutional structure of the country. Contrary to the dominant perception, lustration and de-communization are not backward but forward looking. They were and are part of the political process and struggle; they became legal tools in the re-arrangement of the constitutional setting of society and state. The lustration law became the main tool in the political struggle because other avenues, such as de-communization, were blocked. Amid efforts to deal with the past, the self-purification of state institutions was slow and minimal. With the reorganization of the Ministry of Internal Affairs and dismantling of the Security Service (SB), 14,000 out of 24,000 functionaries decided to undergo the verification or "vetting" procedure required for re-admission to the services. (Ten thousand decided not to apply.) Ten thousand applicants qualified for further employment, and about 4,000 became functionaries in the new Office of State Security (UOP). The procedure was carried out by qualification commissions, which were mandated to disqualify applicants who, as functionaries of former intelligence or counter-intelligence services in the previous regime, had violated the law or the human rights or dignity of other persons, or had used their position for private gain. Many of the disqualified former secret services operatives found employment in police forces and private security agencies. Regular police forces and military intelligence were not subjected to the verification procedure. Military intelligence was reorganized and reduced in size, but the entire process was not subject to any external control. Verification of public prosecutors was based on the evaluation of their declarations of professional qualifications and activities. If the Ministry of Justice found the declaration to be false, the prosecutor was not reappointed. In 1990, 10% of public prosecutors, that is 341 people, lost their jobs as a result of national verification. In the office of the General Prosecutor, 33% of the staff lost their jobs. The process itself was quick and effective, but was criticized by the post-communist party for breaching the rule of law. Following complaints made to the Commissioner for Citizens' Rights concerning the lack of an appeals mechanism, the Ministry of Justice set up a commission to review appeals. This commission overturned decision in 48 cases. There is also the issue of access to secret police files which was discussed in 1997 in connection with a presidential lustration law project. In the wake of the election of September 1997, this idea was absorbed into the law on the Institute of National Remembrance introduced in July 2000, which regulates access of interested persons to information collected about them by the secret services between 1944 and 1989. The Institute started work on the communist period in Poland and has begun to play an important role in the lustration process due to the fact that all files are in its archives. In this broad context of de-communization, lustration plays a peculiar and crucial role. It can be said that transformation itself is de-communization. This is true, but with the reservation that the post-communist structure is still in the process of solidifying itself, and the networks of communist connections influence public life mainly through their impact on the design and operation of the new institutions. In this way, the interests of the former nomenklatura networks become embedded in the new political setting. Thus in Poland lustration was and is a battlefront. Post-communist forces supported it, but presented it as a normal clearance procedure as would exist in any democratic country. Anti-communists saw it as a limited tool for undermining a post-communist structure still controlled by the former nomenklatura and secret services. After the parliamentary and presidential elections in November 2004, there has been talk about broadening the scope of lustration to include other professional groups, such as academics, as well as simplification of the procedure. With the victory of pro-lustration political parties and declarations by the new government that it wants to change the law to broaden the process, it looks as if the lustration odyssey is not yet finished, some 16 years after the beginning of the transformation.
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).
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