Lustration, Decommunisation and the Rule of Law

Abstract

This year we celebrate 20 years since the transfer of power from communist regimes started in Poland's first (semi-free) election of 4^th June 1989, which ushered in Europe's first post-communist, non-communist, government. It had snowball effects in other countries. With the exception of Romania the transfer of power was peaceful and based on agreements usually called ‘round table talks’.

There is no doubt that each of these countries has made substantial progress since 1989. But serious problems remain. The states do not function as expected by their citizens, basic institutions of administration of justice do not work as they should, the level of corruption is too high and politics, while passionate operates rather as a façade, with a great deal of real activity happening behind the scenes and elsewhere. Citizens do not believe in their impact on the political processes and plenty of them complain that the institutions of the administration of justice do not act properly.

Why is this? A substantial number of citizens and observers of the affairs of the region claim that remnants of the past, unsatisfactory dealing with legacies from the former regimes, are responsible for the contemporary state of affairs. It is not my aim to confirm or falsify such claims, but it is clear that the extremely complicated problem of the relations between legality, the rule of law, institution-building and dealing with the past in the process of transition from communism over these twenty years is important. In this article I will describe the most controversial legal strategies adopted in various countries to deal with the past, so-called ‘lustration’ and ‘decommunisation’. I will discuss relevant case-law of domestic courts as well as the European Court of Human Rights. I argue that lustration generally plays a positive role in laying down foundations for a cleaner public sphere and rule of law and democracy, and also that the debates which lustration have stimulated have played a very positive role in building rule of law cultures in the countries in question.