Nghị quyết của Hội đồng châu Âu số 1481 (năm 2006)

Ngày 25 tháng 1 năm 2006, tại thành phố Strasburg (Pháp), Hội đồng châu Âu (tiếng Anh: Parliamentary Assembly of the Council of Europe; tiếng Pháp: Assemblée parlementaire du Conseil de l’Europe), một cơ quan dân cử của 46 quốc gia châu Âu, đã có cuộc họp thường niên (bốn lần trong một năm) bỏ phiếu và thông qua (99 phiếu thuận, 42 phiếu chống) Nghị quyết 1481 (2006) [2] với các điều khoản lên án chủ nghĩa cộng sản và đồng nhất chủ nghĩa này với tội ác chống lại loài người.

Tóm tắt Nghị quyết 1481

Điều 2: “…Những chế độ độc tài toàn trị cộng sản gồm khối Liên xô, Đông Âu trong thế kỷ 20 và một số chế độ cộng sản hiện vẫn còn cầm quyền ở 4 nước trên thế giới, đều là những quốc gia vi phạm nhân quyền. Những vi phạm này tuy khác nhau về cấp độ văn hoá, về ranh giới quốc gia, cũng như tùy giai đoạn lịch sử nhưng đều có chung những cuộc giết người tập thể, ám sát, thủ tiêu cá nhân không cần xét xử, biến đất nước thành trại tập trung với sự đầy đọa con người về thể xác cũng như tinh thần: tra tấn, nô lệ hoá, lao động khổ sai, tù đầy, khủng bố tập thể, ngược đãi, ám sát vì lý do chủng tộc, tôn giáo, chính kiến; vi phạm quyền tự do tư tưởng, xúc phạm lương tâm con người, cấm tự do báo chí, tự do chính trị, độc tôn, độc quyền, độc đảng…”

Điều 3: “Nhân danh chủ trương đấu tranh giai cấp và nguyên tắc chuyên chính vô sản mà các tội ác được biện minh. Sự giải thích hai nguyên tắc này đã hợp thức hóa việc ‘thủ tiêu’ những người bị cho là có hại cho sự xây dựng một xã hội mới: xã hội chủ nghĩa, và do đó, bị xem là kẻ thù của các chế độ độc tài toàn trị cộng sản. Hầu hết nạn nhân chế độ cộng sản chính là công dân của nước đó…”.

Điều 5: “Sự sụp đổ của những chế độ độc tài toàn trị cộng sản tại Trung và Đông Âu chưa được điều tra kỹ lưỡng bằng tổ chức quốc tế để thống kê hết tội ác của cộng sản, đặng đưa tác giả của những tội ác này ra xét xử trước cộng đồng nhân loại, như trường hợp những tội ác khủng khiếp do Đức Quốc xã gây ra trước đây…”

Điều 9: “Các chế độ độc tài toàn trị còn lại trên thế giới vẫn tiếp tục gây tội ác. Không thể dùng quan điểm quyền lợi quốc gia để bao biện, lấp liếm sự lên án của cộng đồng nhân loại với các tội ác của các chế độ toàn trị này. Quốc hội chung châu Âu cực lực lên án tất cả mọi vi phạm quyền con người trong các chế độ cộng sản, coi nó như là tội ác chống nhân loại…”

Hội đồng châu Âu đã trở thành tổ chức quốc tế đầu tiên lên án các tội ác chống lại nhân loại của các chính thể cộng sản.

Ghi chú: Dưới đây là nguyên bản tiếng Anh của Nghị quyết 1481 và Báo cáo số 10765 ngày 16/12/2005 của Mr Göran Lindblad, Sweden, Group of the European People’s Party gửi Ủy ban Châu Âu về các vấn đề chính trị. Và mốt số báo cáo đánh giá trước đó về Chế độ Cộng sản.

Parlimentary Assembly – Council Of Europe

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Resolution 1481 (2006)1 (http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta06/Eres1481.htm)

Need for international condemnation of crimes of totalitarian communist regimes

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1. The Parliamentary Assembly refers to its Resolution 1096 (1996) on measures to dismantle the heritage of the former communist totalitarian systems.

2. The totalitarian communist regimes which ruled in central and eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism.

3. The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the “elimination” of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast number of victims in every country concerned were its own nationals. It was the case particularly of the peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims.

4. The Assembly recognises that, in spite of the crimes of totalitarian communist regimes, some European communist parties have made contributions to achieving democracy.

5. The fall of totalitarian communist regimes in central and eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed by National Socialism (Nazism).

6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.

7. The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions.

8. Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings.

9. Totalitarian communist regimes are still active in some countries of the world and crimes continue to be committed. National interest perceptions should not prevent countries from adequate criticism of current totalitarian communist regimes. The Assembly strongly condemns all those violations of human rights.

10. The debates and condemnations which have taken place so far at national level in some Council of Europe member states cannot give dispensation to the international community from taking a clear position on the crimes committed by the totalitarian communist regimes. It has a moral obligation to do so without any further delay.

11. The Council of Europe is well placed for such a debate at international level. All former European communist countries, with the exception of Belarus, are now members, and the protection of human rights and the rule of law are basic values for which it stands.

12. Therefore, the Assembly strongly condemns the massive human rights violations committed by the totalitarian communist regimes and expresses sympathy, understanding and recognition to the victims of these crimes.

13. Furthermore, it calls on all communist or post-communist parties in its member states which have not yet done so to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity.

14. The Assembly believes that this clear position of the international community will pave the way to further reconciliation. Furthermore, it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place.

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1. Assembly debate on 25 January 2006 (5th Sitting) (see Doc. 10765, report of the Political Affairs Committee, rapporteur: Mr Lindblad).

Text adopted by the Assembly on 25 January 2006 (5th Sitting).

Doc. 10765 (http://assembly.coe.int//Mainf.asp?link=http://assembly.coe.int/Documents/WorkingDocs/Doc05/EDOC10765.htm)

16 December 2005

Need for international condemnation of crimes of totalitarian communist regimes

Report

Political Affairs Committee

Rapporteur: Mr Göran Lindblad, Sweden, Group of the European People’s Party

Summary

The totalitarian communist regimes which ruled in Central and Eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by the massive violation of human rights.

The Parliamentary Assembly is of the opinion that the public awareness of crimes committed by totalitarian communist regimes is very poor.

It strongly condemns human rights violations and calls on all communist or post-communist parties in its member states which have so far not done so, to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity.

It also urges the Committee of Ministers to set up a committee composed of independent experts with the task of collecting and assessing information and legislation related to violations of human rights under different totalitarian communist regimes and to adopt an official declaration for the international condemnation of the crimes committed by totalitarian communist regimes.

The Assembly calls on the Council of Europe member states which had been ruled by totalitarian communist regimes to introduce a memorial day for victims and establish museums documenting crimes.

I. Draft resolution

1. The Parliamentary Assembly refers to its Resolution 1096 (1996) on measures to dismantle the heritage of the former communist totalitarian systems.

2. The totalitarian communist regimes which ruled in Central and Eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterised by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labour and other forms of mass physical terror.

3. The crimes were justified in the name of the class struggle theory and the principle of dictatorship of the proletariat. The interpretation of both principles legitimised the “elimination” of people who were considered harmful to the construction of a new society and, as such, enemies of the totalitarian communist regimes. A vast number of victims in every country concerned were its own nationals. It was the case particularly of peoples of the former USSR who by far outnumbered other peoples in terms of the number of victims.

4. The Assembly recognises that, in spite of the crimes of totalitarian communist regimes, some European communist parties have made contributions to achieving democracy.

5. The fall of totalitarian communist regimes in Central and Eastern Europe has not been followed in all cases by an international investigation of the crimes committed by them. Moreover, the authors of these crimes have not been brought to trial by the international community, as was the case with the horrible crimes committed in the name of National Socialism (nazism).

6. Consequently, public awareness of crimes committed by totalitarian communist regimes is very poor. Communist parties are legal and active in some countries, even if in some cases they have not distanced themselves from the crimes committed by totalitarian communist regimes in the past.

7. The Assembly is convinced that the awareness of history is one of the preconditions for avoiding similar crimes in the future. Furthermore, moral assessment and condemnation of crimes committed play an important role in the education of young generations. The clear position of the international community on the past may be a reference for their future actions.

8. Moreover, the Assembly believes that those victims of crimes committed by totalitarian communist regimes who are still alive or their families, deserve sympathy, understanding and recognition for their sufferings.

9. Totalitarian communist regimes are still active in some countries of the world and crimes continue to be committed. National interest perceptions should not prevent countries from adequate criticism of present totalitarian communist regimes. The Assembly strongly condemns all those violations of human rights.

10. The debates and condemnations which have taken place so far at national level in some Council of Europe member states cannot give dispensation to the international community from taking a clear position on the crimes committed by the totalitarian communist regimes. It has a moral obligation to do so without any further delay.

11. The Council of Europe is well placed for such a debate at international level. All former European communist countries, with the exception of Belarus, are now its members and the protection of human rights and the rule of law are basic values for which it stands.

12. Therefore, the Parliamentary Assembly strongly condemns the massive human rights violations committed by the totalitarian communist regimes and expresses sympathy, understanding and recognition to the victims of these crimes.

13. Furthermore, it calls on all communist or post-communist parties in its member states which have not so far done so to reassess the history of communism and their own past, clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity.

14. The Assembly believes that this clear position of the international community will pave the way to further reconciliation. Furthermore, it will hopefully encourage historians throughout the world to continue their research aimed at the determination and objective verification of what took place.

II. Draft recommendation

1. The Parliamentary Assembly refers to its Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems and to Resolution … (2006) on the need for international condemnation of crimes of totalitarian communist regimes.

2. The Assembly is of the opinion that there is an urgent need for an in-depth and exhaustive international debate on the crimes committed by totalitarian communist regimes with a view to giving sympathy, understanding and recognition to all those affected by these crimes.

3. It is convinced that the Council of Europe, being an organisation which stands for the rule of law and protection of the human rights, should take a clear position on the crimes committed by the totalitarian communist regimes.

4. Therefore, the Assembly urges the Committee of Ministers to:

4.1. set up a committee composed of independent experts with the task of collecting and assessing information and legislation related to violations of human rights under different totalitarian communist regimes;

4.2. adopt an official declaration for the international condemnation of the crimes committed by totalitarian communist regimes and to express sympathy, understanding and recognition to the victims irrespective of their nationality;

4.3. launch a public awareness campaign on the crimes committed by totalitarian communist regimes at European level;

4.4. organise an international conference on the crimes committed by totalitarian communist regimes with the participation of representatives of governments, parliamentarians, academics, experts and NGOs;

4.5. urge the Council of Europe member states which had been ruled by totalitarian communist regimes to:

4.5.1. establish committees composed of independent experts with the task of collecting and assessing information on violations of human rights under the totalitarian communist regime at national level with a view to collaborating closely with a Council of Europe committee of experts;

4.5.2. revise national legislation with a view to making it comply fully with Committee of Ministers’ Recommendation Rec(2000)13 on a European policy on access to archives;

4.5.3. launch a national awareness campaign about crimes committed in the name of communist ideology, including the revision of school books and the introduction of a memorial day for victims of communism and the establishment of museums;

4.5.4. encourage local authorities to erect memorials as a tribute to the victims of the totalitarian communist regimes.

III. Explanatory memorandum by Mr Lindblad

1. Introduction

1. The fall of communist rules in central and eastern European states in the early nineties of the twentieth century raised numerous discussions concerning political and legal assessment of actions and crimes committed in the name of communist ideology. The responsibility of the perpetrators and their possible prosecution has become an issue. In all former communist countries national debates on the subject were held and in several countries specific laws on “decommunisation” and/or lustration have been passed1.

2. In all countries concerned this question was considered as part of a broader process of dismantling the former system, and transition to democracy. It was perceived as an internal matter, and the guidance from the international community, and in particular from the Council of Europe was focused on the prevention of possible violation of human rights.

3. In this spirit two reports of the Parliamentary Assembly on measures to dismantle communist totalitarian systems were elaborated on by Mr Espersen and Mr Severin on behalf of the Committee on Legal Affairs and Human Rights respectively in 1995 and 1996, the former was referred back to the Committee after a debate in the Assembly, the latter resulted in the adoption of Resolution 1096 (1996).

4. So far, however, neither the Council of Europe nor any other international intergovernmental organisation has undertaken the task of general evaluation of communist rules, serious discussion on the crimes committed in their name, and their public condemnation. Indeed, however difficult it is to understand, there has been no serious, in-depth debate on the ideology which was at the root of widespread terror, massive human rights violations, death of many millions of individuals, and the plight of whole nations. Whereas another totalitarian regime of the 20th century, namely nazism, has been investigated, internationally condemned and the perpetrators have been brought to trial, similar crimes committed in the name of communism have neither been investigated nor received any international condemnation.

5. The absence of international condemnation may be partly explained by the existence of countries whose rules are still based on communist ideology. The wish to maintain good relations with some of them may prevent certain politicians from dealing with this difficult subject. Furthermore, many politicians still active today have supported in one way or another former communist regimes. For obvious reasons they would prefer not to deal with the question of responsibility. In many European countries there are communist parties which have not formally condemned the crimes of communism. Last but not least, different elements of communist ideology such as equality or social justice still seduce many politicians who fear that condemnation of communist crimes would be identified with the condemnation of communist ideology.

6. However, the Rapporteur is of the opinion, that there is an urgent need for public debate on the crimes of communism and their condemnation at international level. It should be done without any further delay for several reasons. Firstly, for the sake of general perception it should be clear that all crimes, including those committed in the name of ideology praising the most respectable ideals like equality and justice, are condemned, and there is no exception to this principle. This is particularly important for young generations who have no personal experience of communist rules. The clear position of international community on the past may be a reference for their future actions.

7. It seems that a sort of nostalgia for communism is still alive in some countries. That creates the danger of communists taking over power in one country or another. This report should contribute to the general awareness of the history of this ideology.

8. Secondly, as long as victims of communist regimes or their families are still alive, it is not too late to give them moral satisfaction for their suffering.

9. Last but not least, the communist regimes are still active in some countries of the world, and the crimes committed in the name of communist ideology continue to take place. In my opinion, the Council of Europe, the organisation which stands for the human rights has no right to remain indifferent and silent even if those countries are not Council of Europe member states. The international condemnation will give more credibility and arguments to the internal opposition within these countries and may contribute to some positive developments. This is the least that Europe, a cradle of the communist ideology, can do for these countries.

10. It should be stressed that there is no question in this report of any financial compensation for victims of communist crimes, and the only compensation which is recommended is of a moral nature.

11. The 15th anniversary of the fall of communist rules in many European countries provides a good opportunity for such action. The Council of Europe is well placed to carry out this task as almost half of its member states have experienced communist rules.

12. In the framework of the preparation of this report, the Committee organised a hearing with participation of eminent personalities, whose expertise on the subject has contributed largely to the preparation of the present report. (See Programme for the Hearing in Annex 1). I have also carried out fact-finding visits to Bulgaria (16 May 2005), Latvia (3 June 2005) and Russia (16-17 June 2005) (See attached Programmes of the visits in Annexes 2-4). I would like to express my gratitude to the national parliamentary delegations of these countries for their assistance in the preparation of these visits.

13. I wish to stress that this report is by no means intended to be an exhaustive account of communist crimes. Historic research should be left to historians, and there is already quite a substantial amount of literature on the subject, which I used when preparing the present report. This report is designed as a political assessment of the crimes of communism.

2. General overview of communist regimes

14. The communist regimes, as the ones under scrutiny in this report can be defined by a number of features, including in particular the rule of a single, mass party committed, at least at the verbal level, to the communist ideology. The power is concentrated within a small group of party leaders who are not accountable or constrained by the rule of law.

15. The party controls the state to such extent that the boundary between both is blurred. Furthermore, it expands its control over the population in every aspect of everyday life to an unprecedented level.

16. The right of association is non-existent, the political pluralism is abolished and any opposition as well as all attempts of independent self-organisation are severely punished. On the other hand, mass mobilisation channelled through the party or its secondary or satellite organisations is encouraged and sometimes even forced.

17. In order to enforce its control over the public sphere and prevent any action beyond its control, such communist regimes expand police forces to an unprecedented degree, establish networks of informers and encourage denunciation. The size of police formations, numbers of secret informers have varied at different times and in countries, but it has always exceeded by far numbers in any democratic state.

18. Means of mass communication are monopolised and/or controlled by the state. Strict preventive censorship is applied as a rule. In consequence, the right to information is violated and free press is non-existent.

19. Nationalisation of the economy which is a permanent feature of the communist rule and stems directly from the ideology puts restrictions on private property and individual economic activity. As a consequence, citizens are more vulnerable vis-à-vis state which is the monopolising employer and the sole source of income.

20. Communist rules lasted over 80 years in the country in which they first came into being, namely in Russia then renamed as the Soviet Union. In other European countries it was about 45 years. Outside Europe communist parties have been ruling for more than 50 years in China, North Korea and Vietnam, more than 40 in Cuba, and 30 in Laos. Communist rules reigned for some time in different African, Asian and South American countries under the then Soviet influence.

21. More than twenty countries on four continents may qualify as communist or under communist rule over some period of time. Besides the Soviet Union and its six European satellites, the list includes Afghanistan, Albania, Angola, Benin, Cambodia (Kampuchea), China, Congo, Cuba, Ethiopia, North Korea, Laos, Mongolia, Mozambique, Vietnam, South Yemen and Yugoslavia.

22. The number of population living under the communist rule accounted for over 1 billion before 1989.

23. The longevity and geographical expansion have implied differences and modifications in practice of communist rules in different countries, cultures and times. The communist regime has evolved, resulting from its inner dynamics or in response to the international circumstances. It is difficult to compare communist rules in Russia in 1930, Hungary in 1960 or Poland in 1980.

24. However, despite the diversity, one can clearly determine common features of historic communist regime whatever country, culture or time. One of the most evident characteristics is the flagrant violation of human rights.

3. Crimes of communism

25. The communist rules have been characterised by the massive violation of human rights since the very beginning. In order to achieve and maintain power, the communist regimes have gone beyond individual assassinations and local massacres, and have integrated crime into the ruling system. It is true that several years after the establishment of the regime in most European countries, and after tens of years in the Soviet Union and China, terror has lost a little of its initial vigour. However, “memory of terror” played an important role in societies, and the potential threat substituted real atrocities. Furthermore, if need arose, the regimes have resorted to terror as illustrated by Czechoslovakia in 1968, Poland in 1971, 1976 and 1981 or China in 1989. This rule applies to all historic and present communist regimes irrespective of the country.

26. According to cautious estimations (exact data is not available) the number of people killed by the communist regimes divided by countries or regions can be made up as follows2:

– the Soviet Union: 20 million victims

– China: 65 million

– Vietnam: 1 million

– North Korea: 2 million

– Cambodia: 2 million

– Eastern Europe: 1 million

– Latin America: 150 000

– Africa: 1,7 million

– Afghanistan: 1,5 million

These figures include a variety of situations: individual and collective executions, deaths in concentration camps, victims of starvation and deportations.

27. The figures quoted above are documented, and if they are only estimations, it is because there is justified ground for suspicion that they should be much higher. Unfortunately, restricted access to archives, in particular in Russia, does not allow for the proper verification of exact numbers.

28. The important feature of communist crimes has been repression directed against whole categories of innocent people whose only “crime” was being members of these categories. In this way, in the name of ideology, the regimes have murdered tens of millions of rich peasants (kulaks), nobles, bourgeois, Cossacks, Ukrainians and other groups.

29. These crimes are direct results of the class struggle theory which imposed the need for “elimination” of people who were not considered as useful to the construction of a new society. A vast number of the victims were nationals.

30. In the late twenties, in the Soviet Union, the GPU (former Czeka) introduced quotas: every district was obliged to deliver a fixed number of “class enemies”. The figures were established centrally by the leadership of the communist party. Thus local authorities had to arrest, deport and execute concrete numbers of people; if they failed to do so, they themselves were subject to persecution.

31. In terms of numbers of victims, the list of the most important communist crimes includes the following:

– individual and collective executions of people considered as political opponents without or with arbitrary trials, bloody repressions of manifestations and strikes, killing of hostages and prisoners of war in Russia in 1918-1922. Lack of access to archives (and also lack of any documentation on numerous executions) makes it impossible to give exact figures, but the number of victims is in the tens of thousands.

– starvation of approximately 5 million people in consequence of requisitions, in particular in Ukraine in 1921-1923. Starvation was used as a political weapon by several communist regimes not only in the Soviet Union.

– extermination of 300 000 to 500 000 Cossacks between 1919 and 1920

– tens of thousands of people perished in concentration camps. Here again, lack of access to the archives makes the research impossible.

– 690 000 people arbitrarily sentenced to death and executed as a result of the “purge” in the communist party in 1937-1938. Thousands of others were deported or placed in the camps. In total, between 1 October 1936 and 1 November 1938, approximately 1 565 000 people were arrested, and out of this figure 668 305 were executed. According to many researchers these figures are underestimated and should be verified when all the archives become accessible.

– massive assassinations of approximately 30 000 “kulaks” (rich peasantry) during the forced collectivisation of 1929-1933. A further 2 million were deported in 1930-1932.

– thousands of ordinary people in the Soviet Union accused of relations with “enemies” and executed in the period preceding the second world war. For example, in 1937, approximately 144 000 people were arrested and out of this figure 110 000 were executed after being accused of contacts with Polish citizens living in the Soviet Union. Also in 1937, 42 000 people were executed on the grounds of relations with German workers in the USSR.

– 6 million Ukrainians starved to death following a deliberate state policy in 1932-1933

– assassinations and deportations of hundreds of thousands of Polish, Ukrainians, Lithuanians, Latvians, Estonians, Moldavians and inhabitants of Besarabia in 1939-1941 and 1944-1945;

– deportation of Volga Germans in 1941, Crimean Tartars in 1943, Chechens and Ingush in 1944;

– deportation and extermination of one fourth of the population in Cambodia in 1975-1978;

– millions of victims of criminal policies of Mao Zedong in China and Kim Ir Sen in North Korea. Here again, lack of documentation does not allow for precise data;

– numerous victims in other parts of the world, Africa, Asia and Latin America, in countries which call themselves communist and make direct reference to communist ideology.

This list is by no means exhaustive. There is literally no country or area under communist rules which would not be able to establish its own list of suffering.

32. Concentration camps established by the first communist regime as early as in September 1918 have become one of the most shameful symbols of communist regimes. In 1921, there were already 107 camps which accommodated over 50 000 detainees. The extremely high mortality in these camps can be illustrated by the situation in Kronstadt Camp: out of 6500 detainees placed in the camp in March 1921, only 1500 were alive a year later.

33. In 1940, the number of detainees amounts to 2 350 000 accommodated in 53 concentration complexes, 425 special colonies, 50 colonies for minors and 90 houses for new-borns.

34. Throughout the 1940s there were on average 2,5 million detainees in camps at any time. In light of the high mortality rate that meant that actual number of people who were placed in camps was much higher.

35. In total, between 15 and 20 million people passed through the camps between 1930 and 1953.

36. Concentration camps have also been introduced in other communist regimes, notably in China, North Korea, Cambodia and Vietnam.

37. Invasion by the Soviet Army of several countries during the Second World War was systematically followed by massive terror, arrests, deportations and assassinations. Among the countries most affected was Poland (an estimated 440 000 victims in 1939, including the assassination of the Polish officers prisoners of war in Katyn, in 1940), Estonia (175 000 victims including assassination of 800 officers which amounts to 17,5 % of the whole population), Lithuania, Latvia (119 000 victims), Besarabia and North Bukovina.

38. Deportations of whole nations were a common political measure particularly during the Second World War. In 1940-41, approximately 330 000 Polish citizens living in the areas occupied by the Soviet Army were deported to Eastern Soviet Union, mainly to Kazakhstan. 900 000 Germans from Volga region were deported in autumn 1941; 93 000 Kalmouks were deported in December 1943; 521 000 Chechen and Ingushetian people were deported in February 1944; 180 000 Crimean Tartars were deported in 1944. The list would not be complete without mentioning Latvians, Lithuanians, Estonians, Greeks, Bulgarians, Armenians from the Crimea, Meshketian Turks and Kurds from Caucasus.

39. Deportations also affected political opponents. Since 1920, the political opponents in Russia were deported to the Solovki Islands. In 1927, the camp built in Solovki contained 13 000 detainees representing 48 different nationalities.

40. The most violent crimes of the communist regimes like mass murder and genocide, torture, slave labour, and other forms of mass, physical terror have continued in the Soviet Union, and to a lesser extent in other European countries until the death of Stalin.

41. Since mid-1950s terror in the European communist countries significantly decreased but selective persecution of various groups and individuals has continued. It included police surveillance, arrests, imprisonment, fines, coerced psychiatric treatment, various restrictions of freedom of movement, discrimination of employment often resulting in poverty and professional exclusion, public humiliation and slander. The post-Stalinist European communist regimes have exploited the widespread fear of potential persecutions well present in collective memory. In the long term, however, memory of past horrors has gradually weakened having less influence on young generations.

42. However, even during these relatively calm periods, communist regimes have been capable of resorting to massive violence if necessary, as illustrated by the events in Hungary in 1956, Czechoslovakia in 1968, or in Poland in 1956, 1968, 1970 and 1981.

43. The fall of communist rules in the Soviet Union and other European countries has facilitated access to certain archives documenting communist crimes. Before 1990s, these archives were completely inaccessible. The documents which can be found there constitute an important source of information on mechanisms of ruling and decision making, and complement the historic knowledge on the functioning of communist systems.

4. Conclusions

44. It seems to be confirmed that the criminal dimension of communist regimes has not been the result of circumstances but rather the consequence of deliberate policies elaborated on by the founders of such regimes even before they took power. Historic Communist leaders have never hidden their objectives which were the dictatorship of proletariat, elimination of political opponents and categories of population incompatible with the new model of society.

45. The communist ideology, wherever and whenever implemented, be it in Europe or elsewhere, has always resulted in massive terror, crimes and large scale violation of human rights. When analysing the consequences of the implementation of this ideology, one cannot ignore the similarities with the consequences of the implementation of another ideology of 20th century, namely nazism. Although mutually hostile, these two regimes shared a number of common features.

46. However, whereas the criminal and condemnable character of the Nazi ideology and regime has been uncontroversial, at least for half a century, and its leaders and many perpetrators were held accountable, the communist ideology and regimes have not encountered a comparable reaction. The crimes have rarely been subject to legal prosecution, and many of the perpetrators have never been brought to justice. Communist parties are still active in some countries, and they have not even distanced themselves from the past when they supported and collaborated with the criminal communist regimes.

47. Communist symbols are openly used, and public awareness of communist crimes is very poor. This is particularly obvious when compared to public knowledge of nazism crimes. The education of young generations in many countries certainly does not help to decrease this gap.

48. Political and economic interests of particular countries affect the degree of criticism of some still active communist regimes. It is particularly visible in the case of China.

49. As Rapporteur I am of the opinion that there should be no further undue delay in condemning the communist ideology and regimes at international level. This should be done both by the Assembly at parliamentary level and by the Committee of Ministers at intergovernmental level. Personally, I do not share the position of some colleagues that a clear distinction should be made between ideology and practice. The latter drives from the former and sooner or later the initial good intentions are overtaken by the totalitarian one party system and its abuses.

50. It should be clear, however, these are crimes committed in the name of communist ideology which are condemned, and not any particular country. Russians themselves were the first and most numerous victims of the communist ideology. In every single country where the communists have taken over power, the crimes were comparable. This report will hopefully contribute to further reconciliation based on the historical truth and comprehension.

51. The Assembly should recommend to the Committee of Ministers the setting up of a committee which would carry out comprehensive investigations concerning communist crimes in Council of Europe member States. At the same time, the member States which have not done so yet, should be urged to establish such committees at national level. These committees would be expected to co-operate closely with the Council of Europe committee.

52. The ultimate goal of the work of the Council of Europe and national committees would be to establish facts and propose concrete measures aimed at bringing quick justice and compensation, and pay tribute to the memory of the victims.

53. The necessary condition for the success of the work of the committees is access to archives, particularly in Russia. Therefore, the relevant legislation in the countries concerned and particularly in Russia, should comply with the Committee of Ministers’ Recommendation (2000) 13 on a European policy on access to archives;

54. Last but not least, the Committee of Ministers should initiate an awareness campaign in Council of Europe member States on the crimes of communism. That would include the revision of school books. The Council of Europe member States should be encouraged to do so at national level.

APPENDIX I

Parliamentary Hearing on the

Need for international condemnation

of the crimes of communism

Paris – 14 December 2004

Programme

Introductory note

Totalitarian communism has passed into history. It is now a cliché to say “the ideas were right, but the people failed”. There are still many communist regimes and parties throughout the world, some of them have chosen a democratic line. However, it is now time to take stock of the numerous crimes of totalitarian communism of the past and condemn it solemnly. If we fail to do this an illusion of nostalgia might set in the minds of younger generations as an alternative to liberal democracy. This would constitute a huge setback to our endeavours to strengthen democratic citizenship and to reject all concepts of authoritarian regimes.

Working Session I Crimes of communism

Presentations on:

i. Suppression of opponents: killings, persecutions, concentration camps and torture.

ii. Violation of rights: total control of freedom of expression, private life, freedom of movement, religion and private property.

– Mr Stéphane COURTOIS, Director of research, CNRS, chief redactor of « Communism », author of « Black Book of communism: crimes, terror et repression”

– Mr Vladimir BUKOVSKY, former Soviet dissident, author of several books on communism

– Mr Toomas HIIO, Estonian Foundation for the Investigation of the Crimes Against Humanity

Discussion

Working session II Historical dimension

i. Introduction:

– Mr Dariusz STOLA, Institute of Political Studies, Polish Academy of Science (PAN)

ii. Theory and practice: why should we condemn “communist crimes” and not communism as a utopia?

Panel with participation of the parliamentarians

Statement by Ms Aguiar, Rapporteur

Mr Wielowieyski, Senate, Warsaw, Poland

Mr Gross, National Council, Parliament, Bern, Switzerland

Mr Toshev, National Assembly Sofia, Bulgaria

iii. Importance of a condemnation in a political / historical perspective

Statement by Ms Aguiar, Rapporteur

Discussion

Conclusions and possible adoption of a declaration.

APPENDIX II

Visit to Bulgaria, 15-16 May, 2005

Mr Göran Lindblad – Rapporteur

Political Affairs Committee

Council of Europe Parliamentary Assembly

Programme

Preparation of the report on “Need for International Condemnation of the Crimes of Communism”

15 May, Sunday, Arrival

22.30 from Munich

VIP Lounge

Accommodation: Best Western City Hotel

16 May, Monday

10.00 Leave the hotel for the meetings to be held in “Zapad” Hall, National Assembly

10.30 Meeting with representatives of the Ministry of Justice

11.00 Meeting with representatives of the Committee for the Protection of Classified Information

12.00 Meeting with the Committee for Human Rights, National Assembly

12.30 Lunch break

13.30 Meeting with NGOs: Union of Repressed People; Union of People Repressed after 9 September 1944; “Truth”; League for Protection of Human Rights

16.50 Departure for the airport, VIP Lounge

APPENDIX III

Visit to Latvia, 3rd June, 2005

Mr Göran Lindblad – Rapporteur

Political Affairs Committee

Council of Europe Parliamentary Assembly

Programme

Preparation of the report on “Need for International Condemnation of the Crimes of Communism”

Members of the delegation:

Mr Gőran Lindblad – (Sweden, European People’s Party)

Mrs Agnieszka Nachilo – Secretary to the Committee

Thursday, 2 June

Arrival of the delegation

Friday, 3 June

08:45 Departure from the hotel

09:00 – 09:30 Meeting with the Minister of Foreign Affairs

Mr Artis Pabriks

09.45 – 10.15 Meeting with the Head of the Political planning department of Ministry of Justice

Mrs Laila Medina

10.30 – 11.00 Meeting with the person advised by the Ministry of Interior

Mr Kārlis Daukšts

11.15 – 12.15 Meeting with representatives of the following NGOs

Latvian Association of Politically Repressed

Memorial

Siberian children

Association of Eastern Latvians

responsible person Mrs Zane Zvaigzne (Council of Europe information centre)

12.30 – 13.10 Visit of the Centre for the documentation of the consequences of totalitarianism. Meeting with the head of the centre

Mr Indulis Zālite

13.20 – 14.30 Working lunch with the Latvian Delegation to the Council of Europe Parliamentary Assembly and with the chairman of the Parliamentary Working Group for Drafting Declaration on Condemnation of Communism Mr Guntis Bērziņš

14.45 – 15.25 Meeting with the members of the Parliamentary Working Group for Drafting Declaration on Condemnation of Communism

15.30 – 16.30 Meeting with the experts and historians consulting the Parliamentary Working Group for Drafting Declaration on Condemnation of Communism

16.40 Departure to the airport

APPENDIX IV

Visit to Moscow, 15-17 June 2005

Mr Göran Lindblad – Rapporteur

Political Affairs Committee

Council of Europe Parliamentary Assembly

Programme

Preparation of the report on “Need for International Condemnation of the Crimes of Communism”

Wednesday, 15 June

21h30/22h25 – Arrival of members of the delegation in Moscow

– Accommodation at the hotel

Thursday, 16 June

08h00-09h30 – Working breakfast with NGOs (at the hotel)

10h00/10h30 – Meeting at the Centre for rehabilitation of victims of political repressions and archival information (of the Ministry for the Interior of the RF)

– Lunch

13h30/14h00 – Meeting at the Institute of Universal History of the Russian Academy of Sciences

16h00-18h00 – Meetings at the State Duma with Factions and Committees

Friday, 17 June

8h30 – Working breakfast with Mr Kosachev, Head of the Russian Delegation

11h00 – Meeting with Head of the Federal Archival Agency Mr Vladimir Kozolv

12h45 – Meeting at the Institute of Russian History of the Russian Academy of Sciences

14h00 – Departure for the airport (Sheremetyevo II)

16h50/17h00 – Departure of the members of the delegation

Reporting Committee: Political Affairs Committee.

Reference to Committee: Doc. 9875 rev., Ref. 2872, 29.09.03

Draft Recommendation and Resolution adopted respectively with 26 votes in favour, 5 against and 4 abstentions, and 24 votes in favour, 8 against and 2 abstentions by the Committee on 14 December 2005

Members of the Committee : Mr Abdülkadir Ateş (Chairman), Mr Konstantion Kosachev (Vice-Chairman), Mr Zsolt Németh (Vice-Chairman), Mr Birgir Ármannsson, Mr Giuseppe Arzilli, Mr Claudio Azzolini, MR Miroslav Beneš, Mr Radu-Mircea Berceanu, Mr Gerardo Bianco, Mr Giorgi Bokeria, Mrs Beáta Brestenká, Mr Doros Christodoulides, Mrs Anna Čurdová, Mr Noel Davern, Mr Michel Dreyfus-Schmidt, Mr Adri Duivesteijn, Mrs Josette Durrieu, Mr Mikko Elo, Mr Joan Albert Farré Santuré, Mr Per-Kristian Foss, Mr Jean-Charles Gardetto, Mr Charles Goerens, Mr Daniel Goulet, Mr Andreas Gross, Mr Klaus-Jürgen Hedrich, Mr Jean-Pol Henry, Mr Joachim Hörster, Mr Ivan Ivanovski (alternate: Mr Andrej Zernovski), Mr Tadeusz Iwiński, Mr Elmir Jahić, Mr Ljubiša Jovašević, Mr Ivan Kalezić, Mr Oleksandr Karpov, Mr Oskars Kastēns, Mr Petro Koçi, Mr Yuriy Kostenko, Mrs Darja Lavtižar-Bebler, Mr Göran Lindblad, Mr Younal Loutfi, Mr Mikhail Margelov (alternate: Mr Guennady Ziuganov), Mr Dick Marty, Mr Frano Matušić , Mr Evagelos Meimarakis, Mr Murat Mercan, Mr Jean-Claude Mignon, Mr Marko Mihkelson, Mrs Nadezhda Mikhailova, Mr Joāo Bosco Mota Amaral, Mrs Natalia Narochnitskaya , Mrs Carina Ohlsson, Mr Boris Oliynyk (alternate: Mr Uyriy Karmazin), Mr Algirdas Paleckis (alternate: Mr Jonas Čekuolis), Mr Theodoros Pangalos, Mr Gordon Prentice (alternate: Mr John Austin), Mr Gabino Puche, Mr Lluís Maria de Puig, Mr Jeffrey Pullicino Orlando, Mr Umberto Ranieri (alternate: Mrs Tana de Zulueta), Mr Michael Roth, Lord Russell-Johnston, Mr Jan Rzymełka, Mr Peter Schieder, Mrs Juana Serna (alternate: Mr Julio Padilla), Mr Adrian Severin, Mrs Hanne Severinsen, Mr Samad Seyidov, Mr Leonid Slutsky, Mr Michael Spindelegger, Mr Zoltán Szabó, Baroness Taylor of Bolton, Mr Mehmet Tekelioğlu, Mr Tigran Torosyan, Mrs Marianne Tritz (alternate: Mr Rudolf Bindig), Mr Vagif Vakilov (alternate: Mr Azim Mollazade), Mr Luc Van den Brande (alternate: Mr Stef Goris), Mr Varujan Vosganian, Mr Andrzej Wielowieyski, Mr David Wilshire, Mr Bart van Winsen, Mrs Renate Wohlwend, Mr Marco Zacchera,

Ex-officio: MM. Mátyás Eörsi, Mats Einarsson,

N.B. : The names of the members who took part in the meeting are printed in bold

Head of the Secretariat : Mr Perin

Secretaries to the Committee: Mrs Nachilo, Mr Chevtchenko, Mrs Sirtori-Milner

1 For more details see report on the Measures to dismantle communist totalitarian systems (Doc.7209)

2 Source : « Le livre noir du communisme : crimes, terreur et répression » Stéphane Courtois, Editions Robert Laffont, S.A. Paris 1997

RESOLUTION 1096 (1996)1 on measures to dismantle the heritage of former communist totalitarian systems (http://assembly.coe.int//Mainf.asp?link=http://assembly.coe.int/Documents/AdoptedText/ta96/ERES1096.htm)

1.The heritage of former communist totalitarian systems is not an easy one to handle. On an institutional level this heritage includes (over)centralisation, the militarisation of civilian institutions, bureaucratisation, monopolisation, and over-regulation; on the level of society, it reaches from collectivism and conformism to blind obedience and other totalitarian thought patterns. To re-establish a civilised, liberal state under the rule of law on this basis is difficult – this is why the old structures and thought patterns have to be dismantled and overcome.

2.The goals of this transition process are clear: to create pluralist democracies, based on the rule of law and respect for human rights and diversity. The principles of subsidiarity, freedom of choice, equality of chances, economic pluralism and transparency of the decision-making process all have a role to play in this process. The separation of powers, freedom of the media, protection of private property and the development of a civil society are some of the means which could be used to attain these goals, as are decentralisation, demilitarisation, demonopolisation and debureaucratisation.

3.The dangers of a failed transition process are manifold. At best, oligarchy will reign instead of democracy, corruption instead of the rule of law, and organised crime instead of human rights. At worst, the result could be the “velvet restoration” of a totalitarian regime, if not a violent overthrow of the fledgling democracy. In that worst case, the new undemocratic regime of a bigger country can present also an international danger for its weaker neighbours. The key to peaceful coexistence and a successful transition process lies in striking the delicate balance of providing justice without seeking revenge.

4. Thus a democratic state based on the rule of law must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the totalitarian regime which is to be dismantled. A democratic state based on the rule of law has sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished – it cannot, and should not, however, cater to the desire for revenge instead of justice. It must instead respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. A state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, and are based upon the use of both criminal justice and administrative measures.

5.The Assembly recommends that member states dismantle the heritage of former communist totalitarian regimes by restructuring the old legal and institutional systems, a process which should be based on the principle(s) of:

i.demilitarisation, to ensure that the militarisation of essentially civilian institutions, such as the existence of military prison administration or troops of the Ministry of the Interior, which is typical of communist totalitarian systems, comes to an end;

ii.decentralisation, especially at local and regional levels and within state institutions;

iii.demonopolisation and privatisation, which are central to the construction of some kind of a market economy and of a pluralist society;

iv.debureaucratisation, which should reduce communist totalitarian over-regulation and transfer the power from the bureaucrats back to the citizens.

6.This process must include a transformation of mentalities (a transformation of hearts and minds) whose main goal should be to eliminate the fear of responsibility, and to eliminate as well the disrespect for diversity, extreme nationalism, intolerance, racism and xenophobia, which are part of the heritage of the old regimes. All of these should be replaced by democratic values such as tolerance, respect for diversity, subsidiarity and accountability for one’s actions.

7.The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt.

8.The Assembly recommends that the prosecution of individual crimes go hand-in-hand with the rehabilitation of people convicted of “crimes” which in a civilised society do not constitute criminal acts, and of those who were unjustly sentenced. Material compensation should also be awarded to these victims of totalitarian justice, and should not be (much) lower than the compensation accorded to those unjustly sentenced for crimes under the standard penal code in force.

9.The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services.

10.Furthermore, the Assembly advises that property, including that of the churches, which was illegally or unjustly seized by the state, nationalised, confiscated or otherwise expropriated during the reign of communist totalitarian systems in principle be restituted to its original owners in integrum, if this is possible without violating the rights of current owners who acquired the property in good faith or the rights of tenants who rented the property in good faith, and without harming the progress of democratic reforms. In cases where this is not possible, just material compensation should be awarded. Claims and conflicts relating to individual cases of property restitution should be decided by the courts.

11.Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.

12.The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case – this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty – this is the task of prosecutors using criminal law – but to protect the newly emerged democracy.

13.The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the “Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law” as a reference text.2

14.Furthermore, the Assembly recommends that employees discharged from their position on the basis of lustration laws should not in principle lose their previously accrued financial rights. In exceptional cases, where the ruling elite of the former regime awarded itself pension rights higher than those of the ordinary population, these should be reduced to the ordinary level.

15.The Assembly recommends that the authorities of the countries concerned verify that their laws, regulations and procedures comply with the principles contained in this resolution, and revise them, if necessary. This would help to avoid complaints on these procedures lodged with the control mechanisms of the Council of Europe under the European Convention on Human Rights, the Committee of Ministers’ monitoring procedure, or the Assembly’s monitoring procedure under Order No. 508 (1995) on the honouring of obligations and commitments by member states.

16.Finally, the best guarantee for the dismantlement of former communist totalitarian systems are the profound political, legal and economic reforms in the respective countries, leading to the formation of an authentic democratic mentality and political culture. The Assembly calls, therefore, on all consolidated democracies to step up their aid and assistance to emerging democracies in Europe, in particular as far as the support for the development of a civil society is concerned.

1. Assembly debate on 27 June 1996 (22nd Sitting) (see Doc. 7568, report of the Committee on Legal Affairs and Human Rights, rapporteur: Mr Severin).

Text adopted by the Assembly on 27 June 1996 (23rd Sitting).

2. See Doc. 7568.

Measures to dismantle the heritage of former communist totalitarian systems

Doc. 7568

3 June 1996

REPORT[1]

Rapporteur: Mr SEVERIN, Romania, Socialist Group (http://assembly.coe.int//Mainf.asp?link=http://assembly.coe.int/Documents/WorkingDocs/doc96/EDOC7568.htm)

Summary

The report is based on a two-pronged approach. Firstly, it attempts to show why it is so important that the heritage of former communist totalitarian regimes be dismantled, and how it can be done. Secondly, it raises the problem of how to achieve justice without violating human rights. It also outlines solutions to this problem, including concrete guidelines on how to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, which hopefully will be acceptable to a wide audience.

It is hoped that this report will be a contribution to central and east European countries currently in the unique transition process from former communist totalitarian regimes to democracy, and a guideline for the west European countries and the Council of Europe on how to help these countries to successfully overcome their totalitarian heritage without violating human rights.

I. Draft resolution Link to the Adopted text

1. The heritage of former communist totalitarian systems is not an easy one to handle. On an institutional level this heritage includes (over)centralisation, the militarisation of civilian institutions, bureaucratisation, monopolisation, overregulation; on the level of the society, it reaches from collectivism and conformism to blind obedience and other totalitarian thought-patterns. To re-establish a civilised, liberal state under the rule of law on this basis is difficult — this is why the old structures and thought-patterns have to be dismantled and overcome.

2. The goals of this transition process are clear: to create pluralist democracies, based on the rule of law and the respect of human rights and diversity. The principles of subsidiarity, freedom of choice, equality of chances, economic pluralism and transparency of the decision-making process all have a role to play in this process. The separation of powers, the freedom of the media, the protection of private property and the development of a civil society are some of the means to attain the goal, as are decentralisation, demilitarisation, demonopolisation and debureaucratisation.

3. The dangers of a failed transition process are manifold. At best, oligarchy will reign instead of democracy, corruption instead of rule of law, and organised crime instead of human rights. At worst, the result could be the “velvet restoration” of a totalitarian regime, if not a violent overthrow of the fledgling democracy. The key to a successful transition process lies in striking the delicate balance of providing justice without seeking revenge.

4. A democratic state based on the rule of law must thus, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the previous totalitarian regime which is to be dismantled. A democratic state based on the rule of law does have sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished — it cannot, and should not, however, cater for the desire for revenge instead of justice. It must instead respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. But a state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, using both criminal justice and administrative measures.

5. The Assembly recommends that member states dismantle the heritage of former communist totalitarian regimes by restructuring the old legal and institutional systems, a process which should be based on:

i. the principle of demilitarisation, to ensure that the militarisation of essentially civilian institutions, such as the prison administration or the Ministry of the Interior, which is typical of communist totalitarian systems, comes to an end;

ii. the principle of decentralisation, especially on the local and regional levels and within state institutions;

iii. the principle of demonopolisation, which is central to the construction of some kind of a market economy and of a pluralist society;

iv. the principle of debureaucratisation, which should reduce communist totalitarian overregulation and transfer the power back from the bureaucrats to the citizens.

6. This process must be twinned with the transformation of mentalities (a transformation of hearts and minds) which should have as the main goal to change any fear of undertaking responsibilities, disrespect of diversity, extreme nationalism, intolerance, racism and xenophobia, that are also a part of the heritage of the old regimes. All this should be replaced by democratic values such as tolerance, respect of diversity, subsidiarity and accountability.

7. The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the regular criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which, at the time when it was committed, did not constitute a criminal offense according to national law, as long as it was criminal according to the general principles of law recognised by civilised nations,[2] is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt.

8. The Assembly recommends that the prosecution of individual crimes goes hand-in-hand with the rehabilitation of people who were convicted of “crimes” which in a civilised society do not constitute criminal acts, and for those people who were unjustly sentenced. In the opinion of the Assembly, material compensation should also be extended to these victims of totalitarian justice, and it should not be (much) lower than the compensation accorded to those unjustly sentenced for ordinary crimes now.

9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable persons affected to examine, should they wish to do so, the files kept on them by the former secret services.

10. Furthermore, the Assembly advises that property which was illegally or unjustly seized by the state, nationalised, confiscated or otherwise expropriated during the reign of communist totalitarian systems in principle be restituted to its original owners in integrum, if this is possible without violating the rights of current owners who acquired the property in good faith or the rights of tenants who rented the property in good faith, and without harming the progress of democratic reforms. In cases where this is not possible, just material compensation should be awarded. Controversies and conflicts relating to individual cases of property restitution should be decided by the courts.

11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it consistently with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.

12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, not collective, must be individually proven — this highlights the need for the individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the possibility of a proper judicial review of the decision taken must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty — this is the task of prosecutors using criminal law — but to protect the newly-emerged democracy.

13. The Assembly thus suggests the following guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the guidelines below, as a reference text.

14. Furthermore, the Assembly recommends that employees with accrued financial benefits, such as pension rights, who are discharged from their position on the basis of lustration laws should not lose their financial rights in principle. In exceptional cases, where the ruling elite of the former regime awarded themselves higher pension rights than to the ordinary population, these could be reduced to the ordinary level.

15. The Assembly recommends that the authorities of the countries concerned verify that their laws, regulations and procedures comply with the guidelines suggested, and revise them, if necessary. This would help to avoid complaints on these procedures to the control mechanisms of the Council of Europe under the European Convention on Human Rights, the Committee of Ministers’ monitoring procedure, or the Assembly’s monitoring procedure under Order No. 508 (1995) on the honouring of obligations and commitments by member states.

16. Finally, the Assembly calls on all consolidated democracies to step up their aid and assistance, and to intensify their co-operation with former communist totalitarian countries, in particular as far as the support for the development of a civil society is concerned.

Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law

To be compatible with a state based on the rule of law, lustration laws must fulfil certain requirements. Above all, the focus of lustration should be on threats to fundamental human rights and the democratisation process; revenge may never be a goal of such laws, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty — this is the task of prosecutors using criminal law — but to protect the newly-emerged democracy.

a. Lustration should be administered by a specifically created independent commission of distinguished citizens nominated by the head of state and approved by parliament;

b. Lustration may only be used to eliminate or significantly reduce the threat posed by the lustration subject to the creation of a viable free democracy by the subject’s use of a particular position to engage in human rights violations or to block the democratisation process;

c. Lustration may not be used for punishment, retribution or revenge; punishment may be imposed only for past criminal activity on the basis of the regular Criminal Code and in accordance with all the procedures and safeguards of a criminal prosecution;

d. Lustration should be limited to positions in which there is good reason to believe that the subject would pose a significant danger to human rights or democracy, that is to say appointed state offices involving significant responsibility for making or executing governmental policies and practices relating to internal security, or appointed state offices where human rights abuses may be ordered and/or perpetrated, such as law enforcement, security and intelligence services, the judiciary and the prosecutor’s office;

e. Lustration shall not apply to elective offices, unless the candidate for election so requests — voters are entitled to elect whomever they wish (the right to vote may only be withdrawn from a sentenced criminal upon the decision of a court of law — this is not an administrative lustration, but a criminal law measure);

f. Lustration shall not apply to positions in private or semi-private organisations, since there are few, if any, positions in such organisations with the capacity to undermine or threaten fundamental human rights and the democratic process;

g. Disqualification for office based on lustration should not be longer than five years, since the capacity for positive change in an individual’s attitude and habits should not be underestimated; lustration measures should preferably end no later than 31 December 1999, because the new democratic system should be consolidated by that time in all former communist totalitarian countries;

h. Persons who ordered, perpetrated, or significantly aided in perpetrating serious human rights violations may be barred from office; where an organisation has perpetrated serious human rights violations, a member, employee or agent shall be considered to have taken part in these violations if he was a senior official of the organisation, unless he can show that he did not participate in planning, directing or executing such policies, practices, or acts;

i. No person shall be subject to lustration solely for association with, or activities for, any organisation that was legal at the time of such association or activities (except as set out above in sub-paragraph h), or for personal opinions or beliefs;

j. Lustration shall be imposed only with respect to acts, employment or membership occurring from 1 January 1980 until the fall of the communist dictatorship, because it is unlikely that anyone who has not committed a human rights violation in the last ten years will now do so (this time-limit does not, of course, apply to human rights violations prosecuted on the basis of criminal laws);

k. Lustration of “conscious collaborators” is permissible only with respect to individuals who actually participated with governmental offices (such as the intelligence services) in serious human rights violations that actually harmed others and who knew or should have known that their behaviour would cause harm;

l. Lustration shall not be imposed on a person who was under the age of 18 when engaged in the relevant acts, in good faith voluntarily repudiated and/or abandoned membership, employment or agency with the relevant organisation before the transition to a democratic regime, or who acted under compulsion;

m. In no case may a person be lustrated without his being furnished with full due process protection, including but not limited to the right to counsel (assigned if the subject cannot afford to pay), to confront and challenge the evidence used against him, to have access to all available inculpatory and exculpatory evidence, to present his own evidence, to have an open hearing if he requests it, and the right to appeal to an independent judicial tribunal.

II. Explanatory memorandum

by Mr SEVERIN

Contents

A. Introduction paragraphs 1-9

B. The aim: building up a democratic society paragraphs 10-20

C. The method: dismantling communist totalitarian systems paragraphs 21-41

1. Principles paragraphs 21-22

2 Criminal justice paragraphs 23-27

3. Administrative measures paragraphs 28-32

4. Institution-building paragraphs 33-38

5. Society paragraphs 39-41

D. The problem: achieving justice without violating human rights paragraphs 42-68

1. Guidelines paragraphs 42-48

2. Albania paragraphs 49-56

3. Bulgaria paragraphs 57-60

4. The Czech Republic paragraphs 61-65

5. Germany paragraphs 66-68

E. The possible contribution of the consolidated democracies paragraphs 69-71

F. Conclusions and recommendations paragraphs 72-76

A. Introduction

1. The motion for a recommendation on measures to dismantle communism (Doc. 6615) of 7 May 1992 was referred to the Committee on Legal Affairs and Human Rights on 30 June 1992 (Reference No. 1787). The motion asks for the examination of laws and regulations adopted in a number of countries of central and eastern Europe under the general heading of measures to dismantle communism, to find out whether some of them may be inconsistent with the provisions of the European Convention of Human Rights (ECHR).

2. Mr Espersen (Denmark, Socialist Group) drafted a report to the Assembly (Doc. 7209), which was referred back to committee without debate on 3 February 1995. I will write my report on the background of the previous report and comments received thereon, but I will base myself mainly on the discussion papers by Mr Sandor (Director of the Centre for Political Studies and Comparative Analysis in Bucharest, Romania) on the general question, by Prof. Dr. Schuller (Professor at the University of Konstanz, Germany) on dismantling the past in Germany, and by Dr. Cepl (Judge on the Constitutional Court of the Czech Republic) on the transformation of hearts and minds in eastern Europe.[3]

3. I will also take into account the committee hearing on measures to dismantle communist totalitarian systems held on 11 December 1995 in Zurich with the participation of these three experts. Of the literature made available to me I want to mention only the most outstanding, the three-volume book Transitional Justice — How emerging democracies deal with former regimes, edited by Neil J. Kritz.

4. The report will be based on a two-pronged approach. Firstly, I want to show why it is so important that the heritage of former communist totalitarian regimes be dismantled, and how it can be done. Secondly, I intend to raise the problem of how to achieve justice without violating human rights. I will also outline solutions to this problem, which I hope will be acceptable to a wide audience. It is not my aim to attack any particular ideology, be it communism or any other; what I am attacking is totalitarianism. The heritage of former totalitarian regimes of the fascist persuasion has been dismantled in this century in several countries, including Germany, Italy and Spain, but since the former totalitarian regimes of the communist persuasion fell only in 1989 or later, Europe is dealing with this particular problem for the first time. I hope that my report will be a contribution to central and eastern European countries currently in this unique transition process, and a guideline for the western European countries and the Council of Europe on how to help these countries to successfully overcome their totalitarian heritage without violating human rights.

5. This process of overcoming the heritage of former communist totalitarian systems, also called “decommunisation”, can be defined as dismantling totalitarian legislation, institutions, ruling methods and policies, old mentalities and personal structures (the nomenclature). This is a very complex process which cannot be achieved in a day, but can take years, even decades to fully implement.

6. After five to seven years of “decommunisation” in the countries of central and eastern Europe, it has come to light that a liberal constitutional state under the rule of law is not always in the best position to punish the guilty. This can lead to profound disappointment, especially amongst the victims of the former regime. On the other hand, the fading away with time of the negative images of the totalitarian past have let a certain nostalgic attitude emerge in many of these countries. People wish for — and sometimes, elect back into office — such “values” as equality (unconditional equality instead of equality of chances), collectivism, paternalist protectionism, stability without progress (stagnation), a preordained certain future and other trappings of the conformism specific to the communist totalitarian model.

7. The reason for this nostalgia for the past, for this apparent failure of transition, can be found — amongst other reasons — in the inability of post-communist governments to manage the people’s expectations. These governments should have explained, for example, that democracy is not an easy process, that wealth will not be acquired automatically, etc. The peoples of central and eastern Europe would have suffered their current hardships better if they had expected them.

8. As a result, in some former communist totalitarian societies, the initial consensus for change is collapsing, and the old system is becoming an alternative again, against which the ideals of democracy must compete. This cannot be right; especially when one considers the crimes that were committed under the former regimes, some of them as horrific as those committed by the nazis during the second world war, it must be clear that a communist totalitarian system cannot be an alternative. However, in the long run democratisation can only be secured if not only the regime changes, but people’s attitudes, behaviour and ways of thinking change as well. This is what we must work for.

9. Nevertheless, measures to dismantle communist totalitarian structures must be applied in such a way as to avoid a split in the society. Such a split would be possible if the former political elite would have grounds to fear revenge or rejection on the part of the new society. It could be dangerous to marginalise this elite, who might then challenge the democratic foundations of the new state. Those members of the former elite who are willing and able to integrate into and support the new democratic society should be given a fair chance to do so.

B. The aim: building up a democratic society

10. The communist parties in central and eastern Europe destroyed the previously existing states and societal structures and assumed their place, refashioning the most important institutions and staffing them with new or re-indoctrinated personnel. The legal system was also refashioned, to accommodate the communist ideology and its consequences (for example in the prison, or rather gulag system).

11. The purpose in 1989 thus had to be — and still must be — to re-establish a civilised, liberal state under the rule of law. No vacuum must be left: The old structures should be dismantled, but new ones must be built up in their place, so as to allow no room for the phenomenon Mr Sandor has termed the “ghost of communism”. A possible repetition of the nightmare whole peoples lived through for decades must be avoided. The dangers that lurk if the heritage of former communist totalitarian systems is not overcome can be described as oligarchy instead of democracy, corruption instead of rule of law, and organised crime instead of human rights.

12. This can only be achieved if there is a mentality change. No residual structures of the old regime should be allowed to survive in political life, the economy, nor in individual and collective behaviour. Totalitarian entities such as communist political organisations or parties, or the secret services, must not be allowed to reintegrate into the new pluralist societies, as long as they use democracy only as a vehicle for their coming back to power and make no contribution to the progress of democracy. Otherwise a “velvet restoration” as a historical trap becomes more than just a possibility.

13. The aim must thus be to create and/or foster institutions of parliamentary democracy on local and on national level. Universal, free, fair and secret elections to these institutions should be held. In fact, all levels of government and society should be democratised. In this framework, the traditional separation of powers between the legislative, the executive, and the judiciary is important. The role of parliament, which is legitimatised by a popular vote, is pivotal: It must control the executive. The principles of accountability and transparency must be introduced into the administration. But it is also important that the people — the electorate — are given ample opportunity to participate actively in politics and the building up of the new democratic society.

14. It is also very important that the pre-eminence of the state over the citizen, one of the primary features of communist totalitarian systems, is abolished. It is necessary to establish institutions which will be able to defend the individual against the state, for example, administrative courts (in which decisions of the executive can be challenged), human rights ombudsmen, and other such institutions.

15. In the same vein, a demilitarisation of the state and its institutions is necessary. In particular, the troops of the Ministry of the Interior specific to the communist totalitarian systems should be abolished, and the police, the judiciary and the prison administration should be demilitarised. In most countries, dismantling communist totalitarian bureaucracies will also be vital. This can be achieved by deregulation, and by decentralising the administration.

16. The electorate, so as to be able to make informed decisions, must have access to unbiased and factual information. Independent institutions of a democratic society, such as a free press and autonomous research centres and universities, play a vital role in this respect. An independent media can even be seen as the fourth power in the balance-of-power make-up of a state based on the rule of law.

17. The development of a democratic legal and judicial system cannot be underestimated in its significance. Respect for and the safeguarding of human rights are essential: in this context, accession to international legal instruments and integration into multilateral organisations can help to secure the democratisation process. The rule of law must be established internally. Here, a start can be made with the adoption of new democratic constitutions. In most cases, the whole — formerly communist — legal and judicial system needs to be reformed; new laws, especially, for example, in the criminal and the administrative law field, need to be passed and implemented. The independence of the judiciary must be guaranteed.

18. Building up a democratic society should go hand-in-hand with the construction of some kind of a market economy. Old command-economy structures must be dismantled, allowing for free competition. Privatisation and land reform, often on the basis of restitution, have proved fairly successful in the last few years, also as a method of jump-starting the economy. Legally speaking, foundations for these measures must be laid through the recognition and protection of property, the guarantee of freedom of economic activity, of association, and of contract.

19. As far as the economy is concerned, de-monopolisation is of paramount importance. If these monopolies are not dismantled, or are allowed to recreate themselves, the establishment of an economic and financial oligarchy becomes likely — an oligarchy which might be based on corruption, or be the source of corruption.

20. On a more psychological, but no less important level, dealing with the communist totalitarian past implies changing value-systems: tolerance must be fostered and the individual must be given (and taught to use) increased autonomy. People have to learn to accept responsibility for their own actions and end their blind obedience to higher bodies. Above all, they must become more active in all realms of life. This is one of the main aims in overcoming communist totalitarian systems and making sure they never return.

C. The method: dismantling communist totalitarian systems

1. Principles

21. A democratic state based on the rule of law must, in dismantling the heritage of former communist totalitarian systems, apply the procedural means of such a state. It cannot apply any other means, since it would then be no better than the previous totalitarian regime which is to be dismantled. As I have already mentioned in the introduction, many people feel that a democratic Rechtsstaat (a state based on the rule of law) does not have sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished. However, understandable as it is, this attitude may often stem more from a desire for revenge than for justice. A true Rechtsstaat must respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves.

22. I think it is important to underline in this context that a democratic state based on the rule of law can defend itself against a resurgence of the communist totalitarian threat. The old totalitarian structures are not stronger than fledgling democracies, as long as these democracies are mobilised. A democratic state based on the rule of law has ample means at its disposal which do not conflict with human rights and the rule of law, using both criminal justice and administrative measures. In the following I will give an overview of the possible measures to be applied.

2. Criminal justice

23. Criminal acts committed by individuals during the communist totalitarian regime should be prosecuted and punished under the regular criminal code. Some people advocate “wiping the slate clean”, by issuing a general pardon for all the crimes committed under the former regime. I do not agree with this approach: It seems to me to be very unfair to the victims of those crimes. Besides, a general pardon could even de-stabilise the new society, if victims or their families should decide to take justice in their own hands. Thus it seems clear that crimes should be prosecuted and punished. If, for example, a former judge allowed judicial murders, or a prison guard tortured a prisoner, he should be brought to trial and sentenced, provided he is found guilty.

24. As I have pointed out, it is important that the regular criminal code is applied. This is necessary, since — in a state based on the rule of law — passing and applying retroactive criminal laws is not permitted. This principle is even included in the European Convention on Human Rights, in Article 7, paragraph 1. There are two common problems that crop up in connection with this rule: first, is it allowed to extend the statute of limitations, and second, does this rule even hold when the crime committed was obviously a crime in reality, even though it was not formally on the statute books?

25. Concerning the first question, the German Constitutional Court has ruled that an extension of the statute of limitations is only a procedural, not a substantive matter, and thus possible in a state based on the rule of law. I agree with this interpretation. Concerning the second question, even the European Convention on Human Rights allows the trial and punishment of any person for any act or omission which, at the time when it was committed, did not constitute a criminal offense according to national law, as long as it was criminal according to the general principles of law recognised by civilised nations (Article 7, paragraph 2). Behaviour which was obviously in violation of human rights is thus punishable, regardless of contrary regulations (which existed, for example, in the German Democratic Republic).

26. However, it still remains difficult sometimes for a state under the rule of law to treat brutal mass executions and other crimes against humanity which were committed in the framework and under the conditions of a totalitarian apparatus like ordinary crimes. In particular, the problem of acting under orders is often raised. The solution is that in cases where the person clearly acted in violation of human rights, even the claim of having acted under orders excludes neither illegality nor individual guilt. This solution has been applied, for example, in Germany, to the guards who shot dead refugees on the GDR-border.

27. The prosecution of individual crimes has to go hand-in-hand with the rehabilitation of people who were convicted of “crimes” which in a civilised society do not constitute criminal acts, and for those people who were unjustly sentenced. It is questionable whether each person unjustly sentenced should have to apply to have his judgment individually overturned in a special proceeding, or whether specific types of politic-judicial ruling should be generally overturned. I would opt for the latter option, but this is open to debate. Material compensation should also be extended to these victims of totalitarian justice, and it should not be (much) lower than the compensation accorded to those unjustly sentenced for ordinary crimes now.

3. Administrative measures

28. The main debate on measures to dismantle communist totalitarian systems is being waged on the admissibility of administrative measures. For example, in the American zone after the second world war, former nazis were habitually excluded from their professions, or their right to vote was withheld. Many central and eastern European countries have been tempted to apply similar administrative measures. However, most countries have found that it would be contrary to the spirit of a constitutional state based on rule of law to deny former Communist Party members the right to vote or to stand for election, or hold elective office.

29. Instead, most countries have opted for some kind of lustration. The aim of lustration is to exclude persons from exercising governmental power if they cannot be trusted to exercise it consistently with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now. Thus lustration is meant to create a breathing space for democracy, where it can lay down roots without the danger that people in high positions of power will try to undermine it. However, lustration is not designed for dealing with criminals (people who manifestly violated human rights under the former regime) — these should be dealt with according to criminal laws and procedures — and not for inactive bystanders, either — who should be presumed innocent until proven guilty and should have a fair chance of participating in the new democratic regime.

30. Lustration still raises a lot of sensitive problems, which will be discussed in the following chapter. In general, it can be said that lustration is only compatible with a democratic state under the rule of law if several criteria are met: First, guilt, being individual, not collective, must be individually proven — this highlights the need for the individual, and not collective, application of lustration laws. Second, the right of defense, the presumption of innocence until proven guilty, and the possibility of a proper judicial review of the decision taken must be guaranteed (more exact guidelines are drawn up in paragraph 46).

31. In this framework it should be added that, while it is not possible to pass and apply retroactive criminal laws, there is a possibility of passing and applying retroactive regulations added to administrative measures, provided they do not impose a disproportionate disadvantage. It has proved generally acceptable, for example, that people who held important posts in the ruling party and its repressive apparatus, or whose participation in repressive acts is proven, are subsequently banned from public service (although their receiving a pension should not automatically be precluded).

32. Another possibility for parliament or government to become active in this field lies in the adoption of a declaration condemning the former regime’s crimes. This might be able to counter some of the nostalgia for the communist past which is creeping in some countries, by making the communists’ crimes very clear to everyone. The establishment of an investigative committee on the history of communist dictatorship (as in the German Parliament) can also be beneficial.

4. Institution-building

33. Perhaps the parliament is the most important institution in a post-communist society. Based on popular vote, the parliament represents the people, and has the very important role of controlling the executive. The parliament’s main “weapon” in this field is the budget. For this reason it is very important that budgetary procedures be as transparent as possible.

34. On the level of institution-building, decentralisation is a key word. Communist totalitarian systems were necessarily highly centralised. This is not to say that centralised states have to be totalitarian or communist (France is a very good counter-example), but in general it can be said that a more decentralised structure devolves more power to the people and can provide a bulwark against the return of totalitarian communists to power.

35. In this context, support for grass roots civic initiatives and non-governmental organisations can help decentralising “hearts and minds” in central and eastern Europe, to use the metaphor of Dr. Cepl. The independent expression of cultural and ethnic identity can also further the transition from the figure-head protection specific to the communist system (with its characteristics of the maintenance of dependency and subordination to the leading political force) to stimulating social protection that supports the active adaptation to the transition and the development of autonomy for individuals and communities.

36. A reform of the educational system should also be attempted in the long-run. Communist educational systems were based on children learning facts off by heart; facts which were often manipulated to fit the reigning ideology. A reform of the educational system should thus encourage children to think more for themselves, and to develop the ability to critically evaluate so-called facts.

37. The repressive apparatus was central to the remainder in power of the communist totalitarian regimes. Thus the restructuring of the secret services must be of a very high priority. The secret services should be integrated in the structures of the state as a democratic institution, responsible for maintaining national security and not for spying on the population and its beliefs and behaviour. This institution should be fully, and regularly, controlled — preferably by parliament. This control should, in any case, extend to the budget of the secret services.

38. Some countries have opened their secret service files for public examination. The best example is perhaps Germany, where an office has been created for this purpose. Affected persons can examine the files kept on them there, should they wish to do so. Thus it is difficult to use rumours on alleged collaboration with the secret services against political opponents in election campaigns, for example, which contributes to the stability of the newly emerged democratic society.

5. Society

39. On the level of the society as a whole, the consolidation of the social protection system can be a strategic guarantee of insuring civic support for the democratisation process. The re-birth of the middle class, of private initiative and entrepreneurship should be supported, so that the virtues and talents that were characteristic of the communist totalitarian era, such as discipline, submissiveness and obedience (which are neither conducive to change nor adapted to a democratic free market system) are slowly replaced.

40. It is also important that a value-system is fostered which centres on democratic values such as tolerance, human rights and the rule of law. This is perhaps the biggest challenge, since one cannot — and should not — brainwash whole generations of the totalitarian communist ideology and value-system. But once people learn to think for themselves, they might slowly throw off the shackles of the communist ideology of their own accord.

41. In this respect it is vital that the people develop a respect of diversity. The majority can thus not rule unchecked: its policies have to be based also on the protection of various minorities (national, linguistic, sexual and social).

D. The problem: achieving justice without violating human rights

1. Guidelines

42. This chapter will deal with what I will call “decommunisation”, or lustration laws. These laws aim at dismantling the communist totalitarian system by keeping their former proponents from influential positions in one way or another, using administrative measures. (I want to emphasise here that I will not be dealing with criminal law measures in this context — as pointed out in chapter C.2 I am all in favour of taking a firm attitude towards criminals and violators of human rights, who should be prosecuted in accordance with the normal Criminal Code). Many human rights organisations have voiced their concerns on lustration laws, based on their often collective nature, their contrariness to the presumption of innocence and their retroactive effect. Varying degrees of guilt, such as mitigating circumstances, are also often not foreseen in the laws, so that former secret service agents will be treated no more severely than people who were coerced into collaborating with or informing for the secret police.

43. Most people would agree that people who committed crimes or human rights abuses under totalitarian regimes should not be left in positions of power where they can undermine the difficult and delicate transition to democracy. However, criminal offenders are not the only people implicated: many people simply went along with the regime, because they did not have the courage to defy the regime and thus loose all hope of a successful career and a normal life. And who can cast the first stone on them? As Vaclav Havel said in his New Year’s Address on 1 January 1990, “All of us are responsible, each to a different degree, for keeping the totalitarian machine running. None of us was merely a victim of it, because all of us helped to create it together”.

44. But what degree of complicity in the former regime is to debar people from taking responsible positions in the new democratic society? If membership alone in a party or organisation, or in the administrative apparatus of the old regime, is enough to disqualify a person, is this not a form of collective punishment and guilt by association which is incompatible with “Rechtsstaat” principles and human rights? Lustration laws, especially, are in danger of being misused to win political battles or settle old scores, producing witch-hunts against left-leaning or other political opponents of the current government. Since it is not possible or practical to act against more than relatively few people, some people may also be penalised while others who are no less guilty are left alone. The reliability of secret service files, on the basis of whom many such laws rest, has also been called into question.[4]

45. On a different track, purging the former elites of a communist country may cost these countries much of their scarce administrative, managerial and scientific talent, which they can badly afford to loose. In a recent report issued by the Science and Human Rights Program of the American Association for the Advancement of Science,[5] the impact of lustration on scientific and academic communities in Bulgaria, the Czech Republic and Germany has been highlighted. While the authors of the report emphasise that those targeted for dismissal had often gained their positions as a result of political favouritism, so that their dismissal served to open up jobs and responsibility for those better qualified professionally who may have been unfairly treated in the past, they underline the threat lustration has posed to the ability of the scientific and academic communities to operate on an independent basis,[6] and the threat to scientific freedom in general. The report also criticised the manner in which many allegedly “tainted” scientist were treated, which in many cases lacked due process protection and thus reproduced many of the types of repressive features commonly used under the totalitarian regime itself.

46. To be compatible with a state based on the rule of law, lustration laws must fulfil certain requirements. Above all, the focus of lustration should be on threats to fundamental human rights and the democratisation process; revenge may never be a goal of such laws, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty — this is the task of prosecutors using criminal law — but to protect the fledgling democracy. Herman Schwartz has defined certain lustration principles,[7] the most important of which I will loosely base myself on here to develop a yardstick against which existing laws and regulations can be measured:

a. lustration should be administered by a specifically created independent commission of distinguished citizens nominated by the head of state and approved by parliament;

b. lustration may only be used to eliminate or significantly reduce the threat posed by the lustration subject to the creation of a viable free democracy by the subject’s use of a particular position to engage in human rights violations or to block the democratisation process;

c. lustration may not be used for punishment, retribution or revenge; punishment may be imposed only for past criminal activity on the basis of the regular Criminal Code and in accordance with all the procedures and safeguards of a criminal prosecution;

d. lustration should be limited to positions in which there is good reason to believe that the subject would pose a significant danger to human rights or democracy, that is to say appointed state offices involving significant responsibility for making or executing governmental policies and practices relating to internal security, or appointed state offices where human rights abuses may be ordered and/or perpetrated, such as law enforcement, security and intelligence services, the judiciary and the prosecutor’s office;

e. lustration shall not apply to elective offices, unless the candidate for election so requests — voters are entitled to elect whomever they wish (the right to vote may only be withdrawn from a sentenced criminal upon the decision of a court of law — this is not an administrative lustration, but a criminal law measure);

f. lustration shall not apply to positions in private or semi-private organisations, since there are few, if any, positions in such organisations with the capacity to undermine or threaten fundamental human rights and the democratic process (lustration is not a tool to fight against oligarchic structures);

g. disqualification for office based on lustration should not be longer than five years, since the capacity for positive change in an individual’s attitude and habits should not be underestimated (even sentenced criminals are given the chance of parole for good behaviour, so a person who has not committed any crimes should at least be given the same chance); lustration measures should preferably end no later than 31 December 1999, because the new democratic system should be consolidated by that time in all former communist totalitarian countries;

h. persons who ordered, perpetrated, or significantly aided in perpetrating serious human rights violations may be barred from office; where an organisation has perpetrated serious human rights violations, a member, employee or agent shall be considered to have taken part in these violations if he was a senior official of the organisation, unless he can show that he did not participate in planning, directing or executing such policies, practices, or acts;

i. no person shall be subject to lustration solely for association with, or activities for, any organisation that was legal at the time of such association or activities (except as set out above in sub-paragraph h), or for personal opinions or beliefs;

j. lustration shall be imposed only with respect to acts, employment or membership occurring from 1 January 1980 until the fall of the communist dictatorship, because it is unlikely that anyone who has not committed a human rights violation in the last ten years will now do so[8] (this time-limit does not, of course, apply to human rights violations prosecuted on the basis of criminal laws);

k. lustration of “conscious collaborators” is permissible only with respect to individuals who actually participated with governmental offices (such as the intelligence services) in serious human rights violations that actually harmed others and who knew or should have known that their behaviour would cause harm (this would not apply, for example, to persons who had tried to deliberately mislead the security services, while pretending to be co-operating);

l. lustration shall not be imposed on a person who was under the age of 18 when engaged in the relevant acts, in good faith voluntarily repudiated and/or abandoned membership, employment or agency with the relevant organisation before the transition to a democratic regime, or who acted under compulsion;

m. in no case may a person be lustrated without his being furnished with full due process protection, including but not limited to the right to counsel (assigned if the subject cannot afford to pay for counsel), to confront and challenge the evidence used against him, to have access to all available inculpatory and exculpatory evidence, to present his own evidence, to have an open hearing if he requests it, and the right to appeal to an independent judicial tribunal.

47. The question of financial rights is a very tricky one. In principle, the withdrawing of financial rights such as pension rights can be classified as punishment, and would thus not be admissible. However, there are cases in which the ruling elite in former communist totalitarian countries awarded themselves much higher pension rights than the ordinary population, for example in East Germany sometimes double or three times the normal amount. In these cases, it would seem justified that the pensions of the former “nomenclature” be reduced to the ordinary level. However, employees with accrued benefits who are discharged from their position under the decommunisation laws should not loose their financial rights completely.

48. At this point I intend to make case studies of the different “decommunisation” laws adopted in the various countries, taking Albania, Bulgaria, the Czech Republic, and Germany (in alphabetical order) as examples.[9] I will analyse their scope (limited to people employed by the state, for example in the state administration, or also affecting candidates for election to parliament or journalists), their definition and treatment of collaborators, the composition and character of the body taking the decision (a commission, and/or a court), and their treatment of financial rights (granting or withdrawing of pension rights, for example). I will also make clear to what extent these laws are compatible with the principles of a democratic state under the rule of law, basing myself on the general principles enunciated in the two previous chapters, principles which — as members of the Council of Europe — I hope we can all agree upon.

2. Albania

49. In the last few months, two laws which can be classified as “decommunisation laws” were adopted and entered into force in Albania: the law on genocide and crimes against the population committed in Albania during the communist regime for political, ideological and religions reasons (of 22 September 1995), and the law on verification of official figures and other individuals related to the protection of the democratic state (of 30 November 1995). I will rely heavily on the observations of the rapporteurs on the honouring of obligations and commitments by Albania, Mr Columberg, Lord Finsberg and Mr Ruffy,[10] in my evaluation of these laws.

50. The Albanian decommunisation laws, which are said to be modelled on the Czech law (but actually are not modelled on the currently applicable Czech law, which takes the amendments of the Czechoslovak Constitutional Court into account), proscribe that persons standing for high office — the President of the Republic, parliamentarians, members of the government, high-level administrators, judges, prosecutors, officers of the judicial police, high-level policemen, officers in the army, directors and editors of Albanian radio or television, persons holding leading positions in state insurance and financial institutions, as well as in state banks, rectors and directors of universities and schools of higher education, etc. — are not allowed to have held certain functions during the period of 28 November 1944 and 31 March 1991. A provision which included journalists and employees with higher positions in newspapers with a circulation of over 3 000 copies was struck down by the Constitutional Court on 31 January 1996.

51. These functions are, amongst others, members and candidates of the Political Bureau, secretaries and members of the Central Committee of the Party of Labour of Albania in the districts and analogous levels, ministers, deputies of the People’s Assembly, members of the Presidential Council, presidents of the supreme courts, general prosecutors, and employees of the state security services. People registered in the State Security files as collaborators (informers, denunciators, agents, owners of apartments who allowed them to be used by the secret services, witnesses in political trials) are also ineligible for high office. The laws are to stay in force until 31 December 2001.

52. Several Albanian opposition parties, as well as Albanian journalists and international non-governmental organisations have criticised the decommunisation laws. The most important and recurrent criticism concerns the fact that the Albanian laws debar candidates for parliament from election. This could not only be a violation of a right guaranteed under Albania’s constitutional provisions — the right to be elected, which can only be withdrawn from the mentally handicapped and from imprisoned convicts, but it might also be a measure which is incompatible with a state based on the rule of law for similar reasons.

53. The composition and character of the commission which will verify whether a candidate for election is “tainted”, and thus whether he may run or not, has also been open to criticism. The commission is alleged to be entirely in the hands of the present government, because the majority of its members are appointed by different ministries. The chairman of the commission has been appointed by parliament (with the votes both of the ruling and the opposition parties), which is a good sign. However, the vice-chairman and one member of the commission have subsequently been appointed by the Council of Ministers (the government), and one member each by the Ministry of Justice, the Interior Ministry, the Ministry of Defence and the National Information Service (the secret service). The commission’s neutrality thus seems far from guaranteed.

54. The competencies of the commission, which confer upon it a court-like character, have also been severely criticised. The commission has the right to investigate and to call persons for questioning, and in case of refusal to testify or false testimony, persons shall be criminally liable under the Criminal Code. The Speaker of the Albanian Parliament, Mr Arbnori, has pointed out, though, that the commission as an administrative body cannot itself order such penalties, but has to apply to a court to have such penalties imposed (which has, apparently, not yet happened). Nevertheless, these rights of the commission are not matched by corresponding rights of the accused, such as the right to be heard, the right to get acquainted with the file, or the right to be defended by a lawyer. A similar provision originally included in the Czechoslovak lustration law was struck down by the Constitutional Court (see paragraph 62).

55. The possibility of appeal to the Cassation Court limits the power of the commission somewhat. Mr Arbnori has assured the Committee on Legal Affairs and Human Rights that no candidate will be barred from taking part in the elections until the verdict of the Cassation Court is received, provided the candidate has made an appeal to that court.

56. To become compatible with the principles of a democratic state under the rule of law, the Albanian law would have to be changed in several respects in accordance with the guidelines given in paragraph 46. I will mention only the most important here:

a. scope: the application of the law should be limited to people employed by the state in sensitive positions where they could harm human rights, for example in the state administration, the army, the security services; it should not affect candidates for election to parliament; it should be limited to acts, employment or membership occurring from 1 January 1980 until the collapse of the totalitarian regime;

b. method: the possibility of inaccurate or false files of the security apparatus should be provided for in lustrating “conscious collaborators”; the possibility of persons acting under compulsion should be taken into account;

c. the commission: the composition of the commission should be changed to exclude any possibility of bias (that is to say close relationships of the commissioners to the government, the opposition, or political parties should be avoided).

3. Bulgaria

57. The Bulgarian Parliament adopted a lustration law on 9 December 1992, called “Additional Requirements Toward Scientific Organisations and the Higher Certifying Commission”. This so-called “Panev” law (named after its author) on the temporary introduction of some additional requirements for the members of the executive bodies of scientific institutions and for the Higher Certifying Commission, was upheld by the Constitutional Court on 11 February 1993, unlike two other Bulgarian lustration laws (one involving banking and the other affecting pensioners), which were struck down by the Constitutional Court. The law ceased to be valid on 3 April 1995, following a decision of parliament to abolish it, but I will mention it here nevertheless as a good example.

58. According to the “Panev” law, all members of (or candidates for election for) governing bodies of universities and research institutes, as well as the Higher Testimonial Commission (a central academic body, with the function, amongst others, of examining and approving the award of academic and scientific degrees) had to submit a written declaration, certifying that they met the new requirement provided for in the law — not having been a former member of the communist “nomenclature” (for example, a former functionary of the Bulgarian Communist Party on top or medium level, an employee or informer of the secret services, or a lecturer in “ideological” subjects). A refusal to sign such a declaration was considered equal to admission that the person in question did not meet this requirement. The requirements were to be applied for a period of five years from the day the law came into effect.

59. The main problem with the “Panev” law was that it did not provide for examination of individual cases by an independent body, nor allowed for a judicial review. It appears likely that some fundamental rights were thus violated by the law, notably the right to due process and the right to be heard. The law was criticised to this effect in the 1993 annual report of the United States State Department on the human rights situation in the world and the 1993 annual report of the International Helsinki Federation for Human Rights.

60. Since the scope of the law was relatively limited, its implementation is said to have affected only about 3 000 people, none of whom had been dismissed from their teaching posts. The main consequence has been that new academic governing bodies have been elected following the new legal provisions in force. Despite the violations of due process protection by the “Panev” law, it can thus be classed as a relatively mild example, because it affected only a small group of people — scientists — and its consequences were not harsh (unlike in Albania, the Czech Republic or Germany, the lustrated persons were not dismissed from their jobs). However, to comply with the guidelines set out in paragraph 46, the law would have had to be modified to:

a. create an independent commission to oversee implementation of lustration;

b. include full due process protection, including the right to appeal to a court.

4. The Czech Republic

61. One of the most far-reaching measures, and the model for many proposals elsewhere, is the Czechoslovak lustration law, which is now — with the amendments made by the Czechoslovak Constitutional Court — applicable in the Czech and Slovak Republics.[11] The law was adopted in October 1991 by the Czechoslovak National Assembly and was meant to stay in force until 31 December 1996, but it has recently been prolonged until 31 December 2000 in the Czech Republic.

62. The scope of the Czech law is rather broad, but more limited than the Albanian one. The Czech law applies to people employed by the state in high positions, for example in the state administration, the army, the state broadcasting corporation and press agency, and state enterprises; it does not affect either candidates for election to parliament, nor journalists, nor managers of private economic enterprises. People who held certain state or Communist Party positions, or who were members of the Security Police or the People’s Militia (amongst certain other categories) are banned from holding the above-mentioned posts. Originally, the Czechoslovak law included “conscious collaborators” with the Security Police in the category of people banned, but the Czechoslovak Constitutional Court struck down this provision on 26 November 1992, due to difficulties in proving without doubt that somebody had been a conscious collaborator of the Security Services (because of the unreliability of Secret Service files).[12]

63. The Czechoslovak Constitutional Court also struck down all the articles of the lustration law establishing a special commission which was meant to investigate claims that the Ministry of the Interior — responsible for drawing up the “clearance certificates” -had wrongly certified people as “conscious collaborators ” of the Security Police. The court held that such a commission would not be an independent body, nor could it have judicial competencies, and thus opened the possibility of redress in the ordinary court system instead.[13] The Constitutional Court drew particular attention to the fact that, “as the commission is an administrative body, the provisions of the Code of Criminal Procedure (…) cannot be applied to the proceedings before it and it cannot combine these proceedings with criminal law consequences (…)”.[14]

64. The International Labour Organisation (ILO) severely criticised the law in its decision of 28 February 1992. It stated that the lustration law had diverged from its original intended purpose of removing from public institutions persons who took part in suppressing human rights, basing exclusions from public service instead on political and ideological opinions. The reaction to the success of the lustration experience was equally mixed: While a leading Czech newspaper, Lidove Noviny, called the lustration law “a brilliant example of legal incompetence”, the application of which was “completely dependent on (…) the arbitrariness of individual institutions”, relying on inaccurate files, in April 1993, Dr. Cepl, Judge at the Czech Constitutional Court, defended his country’s record to the committee in December 1995.

65. In general, the Czech lustration law seems to fulfil the conditions outlined in paragraph 46, except that the law should be modified to:

a. limit lustration to acts, employment or membership occurring between 1 January 1980 and 31 December 1989;

b. end by 31 December 1999 (in actual fact, disqualification for office based on lustration should not be longer than for five years, which might be reached in the Czech Republic before that date for some persons lustrated between 1991 and 1994).

5. Germany

66. Lustration measures in Germany were based on the unification treaty between the German Democratic Republic (GDR) and the Federal Republic. The treaty established that GDR civil servants could be deemed unfit for employment by the unified German civil service, if they had violated the principles of human rights and the rule of law or had formerly worked for the Ministry of State Security Stasi, and if — for this reason — the continuation of their work in their present positions seemed untenable.[15] On this basis, questionnaires were sent out to all state employees of the former GDR; in them, various questions were posed on subjects such as membership in political parties or mass social organisations, or orders and decorations received from the GDR. On its basis, a large portion especially of teachers were dismissed (reportedly up to 50 000), although they were compensated by pensions. According to Mr Wolfgang Novak, State Secretary for Education of the eastern German Land of Saxony, in his Land alone some 13 500 teachers and administrators have been dismissed in the period between 1991 and 1993 on this basis. Few East German judges have been allowed to remain in office.

67. The lustration process in Germany did include — to some extent — examination of evidence by lustration committees, in which the lustrated civil servants were permitted to present defences, including testimony by reliable witnesses to prove that they did not serve or support the regime. Furthermore, the responsible departments had to grant the affected persons full legal hearing in the examination process, during which the truthfulness of the Stasi files’ contents could also be contested. Access to the court system for a judicial review of the decisions of dismissal was also guaranteed.

68. The German practice is thus comparable to the Czech one, that is to say the scope of people affected in Germany is wider than in Bulgaria, but less wide than in Albania. To be compatible with the guidelines presented in paragraph 46, Germany would have to amend its practice to:

a. limit lustration to acts, employment or membership occurring from 1 January 1980 through 31 December 1989;

b. take into account the possibility of inaccurate or false files of the Stasi more; questionnaires might also not be the most appropriate method of lustration to provide for the possibility of persons acting under compulsion;

c. end the effects of lustration by 31 December 1999 (which might admittedly be difficult in cases where civil servants were dismissed that were close to retirement age, but should be attempted with younger ones).

E. The possible contribution of the consolidated democracies

69. “Decommunisation” is often seen in the West as a problem of the central and eastern European countries. However, the fall of the Berlin wall and the enlargement of Europe’s democratic institutions, such as the Council of Europe, have removed the ideological confrontation that once divided Europe. While western European countries used to be able to define themselves by contrasting their system with that of the countries of central and eastern Europe — as “anti-communist”, “anti-command-economy”, “anti-totalitarian” — this is no longer possible. The consolidated democracies have had to learn to define themselves in positive terms instead, as democratic countries, based on the rule of law, with free-market economies. Filling these positive terms with real meaning has often proved no easier for consolidated western democracies than for the new democracies of central and eastern Europe.

70. The consolidated democracies have to realise that they are in the same boat with the new democracies of central and eastern Europe now: the Berlin wall might not exist in reality any more, but it continues to survive in the hearts and minds of many westerners, who do not pay enough attention to what is going on in “that other part” of Europe. The problems the countries in transition are going through are seen as childhood diseases of democracy, and thus not paid particular attention to. Childhood diseases, if untreated, can prove fatal, though. The danger of a “velvet restoration” of totalitarian regimes in central and eastern Europe (of any colour and ideological persuasion) is real enough, and it is in the West’s own interest to make sure a repetition of the cold war is avoided.

71. Thus the consolidated democracies have to get involved, as well. Co-operation and assistance programmes on the intergovernmental level, as implemented by the Council of Europe, the European Union, and other international institutions, are important, and this “democratic development aid” should be stepped up by all means. But it should not be forgotten that the dismantling of the heritage of the former communist totalitarian regimes also includes the transformation of hearts and minds, something that cannot be achieved on the intergovernmental level. The consolidated democracies must help their fledgling cousins to build up a functioning civil society, starting on the grass-roots level. This is where the aid of western European countries can really make a difference.

F. Conclusions and recommendations

72. It can thus be concluded that the heritage of the former communist totalitarian systems, including (over)centralisation, the militarisation of civilian institutions (such as the prison system, the prosecutor’s office or the Ministry of the Interior), bureaucratisation, monopolisation and overregulation, must be dismantled and overcome. The goal must be to create pluralist democracies, based on the rule of law and respect of human rights and diversity, applying the principles of subsidiarity, freedom of choice, equality of chances, economic pluralism and transparency of the decision-making process. The separation of powers, the freedom of the media, the protection of private property and the development of a civil society are some of the means to attain that goal.

73. In dealing with the heritage of the former communist totalitarian regimes, justice has to be accorded to all: both to the victims of the former regime, and to the former ruling elite. The failure to strike the right balance between providing justice and compensation to the victims and giving — non-criminal — members of the former ruling elite a fair chance to integrate into the new democratic society can threaten the foundations of the new state, by respectively disappointing and alienating the victims or by eroding the human rights, basis of the new regime.

74. A democratic state must thus, in dismantling the heritage of former communist totalitarian systems, apply procedural means based on the rule of law. It cannot apply any other means, since it would then be no better than the previous totalitarian regime which is to be dismantled. A democratic Rechtsstaat (a state based on the rule of law) does have sufficient means at its disposal to ensure that the cause of justice is served and the guilty are punished — it cannot, and should not, however, cater for the desire for revenge instead of justice. A true Rechtsstaat must respect human rights and fundamental freedoms, such as the right to due process and the right to be heard, and it must apply them even to those people who, when they were in power, did not apply them themselves. But a state based on the rule of law can also defend itself against a resurgence of the communist totalitarian threat, since it has ample means at its disposal which do not conflict with human rights and the rule of law, using both criminal justice and administrative measures.

75. In chapter C I have outlined in detail the criminal justice, administrative, institution-building and societal measures to be applied. In chapter D, I have paid particular attention to “decommunisation” or lustration laws, and I have drawn up specific guidelines as to what such administrative measures should look like with a view to achieving justice without violating human rights. I do not want to repeat all this here. My recommendation to those countries of central and eastern Europe who are implementing — or are planning to adopt — such lustration laws or similar administrative measures would be to check whether they comply with the guidelines suggested, and to revise them, if necessary. This will avoid complaints on these procedures to the control mechanisms of the Council of Europe under the European Convention on Human Rights, the Committee of Ministers’ monitoring procedure, or the Assembly’s monitoring procedure under Order No. 508 (1995).

76. I would also encourage all affected countries to implement the institution-building and other measures suggested in chapter C. The consolidated democracies, in accordance with the ideas set out in chapter E, should also consider stepping up their “democratic development aid”, and focusing their aid programmes more specifically on non-governmental and grass-roots activities, to help build up the civil society without which the new democracies overcoming the heritage of former communist totalitarian systems might not survive.

Reporting committee: Committee on Legal Affairs and Human Rights.

Budgetary implications for the Assembly: none.

Reference to committee: Doc. 7209 and Reference No. 1995 of 3 February 1995.

Draft resolution adopted unanimously by the committee on 20 May 1996.

Members of the committee: Mr Hagård (Chairperson), Mr Schwimmer, Mrs Err (Vice-Chairpersons), Mrs Aguiar, MM. Akçali, Alexander, Arbnori, Bartumeu Cassany, Berti, Bindig, Bobelis, Bu_ar, Cimoszewicz, Cioni, Clerfayt, Columberg, Deasy, Dees, Deniau, Fenech, Filimonov, Fogaš, Frunda, Fuhrmann, Fyodorov, Galanos, Mrs Gelderblom-Lankhout, MM. Grimsson, Guenov, Gürel, Mrs Holand, MM. Holovatiy, Hunault, Jansson, Jaskiernia, Jeambrun, Karas, Kelam, Kirkhill, Koschyk, Kovalev, La Russa, Loutfi, Maginas, Magnusson, Martins, Mészáros, Moeller, Németh, Pantelejevs, Poppe, Rathbone, Rhinow, Robles Fraga, Rodeghiero, Rokofyllos, Severin, Solé Tura, Solonari, Stretovych, Tahiri, Trojan, Weyts, Mrs Wohlwend.

N.B. The names of those members who took part in the vote are printed in italics.

Secretaries to the committee: Mr Plate, Ms Chatzivassiliou and Ms Kleinsorge.

[1]. By the Committee on Legal Affairs and Human Rights.

[2]. European Convention on Human Rights, Article 7, paragraph 1.

[3]. AS/Jur (1995) 49, AS/Jur (1995) 47 rev., AS/Jur (1995) 45.

[4]. The experience of the Czech Republic shows, for example, that intelligence officers sometimes earned bonuses by entering false names in the file, by attributing information from one person to three or four, or by continuing to register persons as “candidates for collaboration” even after they had refused to work with the secret service.

[5]. Morton H. Sklar and Krassimir Kanev, Decommunization: A new threat to scientific and academic freedom in Central and Eastern Europe, Washington D.C., September 1995.

[6]. According to this report, 3 000 Bulgarian scientists and university teachers (about 10% of the total) were excluded from participating in any policy-making activities for five years (page iii). In Germany, 50 000 teachers were dismissed, plus a large portion (up to 25%) of university professors; in the Czech Republic, the official dismissal rate among scientists and teachers reached only 5,6% (page iv).

[7]. Herman Schwartz, Lustration in Eastern Europe, Parker School of East European Law, Vol. 1, No. 2 (1994), pp. 141-171.

[8]. Indeed, some people who committed such violations many years ago have since repudiated such acts and the underlying beliefs, and have suffered for those repudiations.

[9]. Other former communist totalitarian countries have adopted — or are considering adopting — similar approaches, but the laws and regulations in these four countries can be seen as the most far-reaching and most rigorously implemented, which is why I have chosen them as examples.

[10]. AS/Jur (1996) 10, pages 10-13.

[11]. From the beginning, the lustration law was hardly applied in the Slovak part of the Czechoslovak Federation, and this pattern did not change following the velvet “divorce” of the two countries.

[12]. Much harm had been done by this provision in the meantime, since in the period preceding the parliamentary elections of June 1992, certain newspapers had illegally published lists of some 140 000 to 160 000 alleged former “collaborators”. Many of the lists turned out to be inaccurate or simply false, but they were nevertheless used to fire and stigmatise people, even in private organisations to which the lustration law did not apply.

[13]. The court of first instance is the regional court in these cases, not the district court.

[14]. Czech and Slovak Federal Republic Constitutional Court Decision on the Screening Law of 26 November 1992, reprinted in Neil J. Kritz, Transitional Justice, Volume III, p. 364.

[15]. The German Federal Ministry of the Interior, which has checked the accuracy of my information — for which I am very grateful — has emphasised in this context that the fact alone of having worked for the Ministry of the State Security is thus not a sufficient reason for termination of contract.

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