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Coping with the Past by Legal Means

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A country’s efforts to cope with the past (particularly if that past was totalitarian or authoritarian) together with the public culture of remembrance form one of the traditional work areas of the Konrad-Adenauer-Stiftung as it promotes democracy and the rule of law worldwide.

The work of the Stiftung in this area is based on the general belief that coping with the past is a precondition in order for former totalitarian or authoritarian regimes to successfully transform into sustainable democracies and constitutional states. In Southeast Europe, the Konrad-Adenauer-Stiftung promotes efforts to deal with the past inter alia through its regional Rule of Law Program (active in the following seven countries: Bosnia-Herzegovina, Bulgaria, Croatia, Macedonia, Montenegro, Romania and Serbia including Kosovo). In helping the country deal with the past, the Program’s focus is on political-juridical aspects, i.e. analyzing how one can both deal and reconcile with the past through law and legal norms while respecting the limitations that the rule of law imposes.

Remembrance plays a particularly decisive role in the successful development of a political culture. This is one of the reasons why coping with the past is one of the traditional areas of work of the Konrad-Adenauer-Stiftung, which is a German political foundation: Democracy is oriented towards and dependent on openness, transparency, trust, individuality and solidarity. All of these are democratic virtues of citizens living in a democracy. A democracy which replaces a dictatorship or any other form of a totalitarian or authoritarian regime endangers its credibility (and forfeits it altogether in the eyes of the dictatorship’s victims) when perpetrators go unpunished, and the new democracy fails to legally prevent them from retaining their positions and further pursuing their careers.

Likewise, the same applies to a democracy which replaces a totalitarian or authoritarian regime. It therefore follows that the purpose of legal sanctions and of lustration is primarily the preventive affirmation of civic virtues and the strengthening of democracy. In the entire region, the RLP SEE cooperates closely with experts in this sector. In particular, the staff of the Institute for the Investigation of Communist Crimes in Romania are highly qualified connoisseurs in this matter. The RLP estimates that the situation in Romania can be handled by representatives of the Institute as well as by member of the CNSAS (Consiliul Naţional Pentru Studierea Arhivelor Securităţii, National Council for the Studies of the Archives of Securitate) and of mass media.

According to the estimation of some of our partners, lustration in Romania has so far only been conducted unilaterally by opening the archives of the Romanian national security service “Securitate”. Until now the question of how to handle the nomenclature has not yet been solved. The blueprint for a lustration law intended to answer this question has been pending in the chamber of deputies in the Romanian Parliament for months.
Our expert, however, doubts the existence of an official lustration policy in Bosnia and Herzegovina (BiH). As can be seen, for instance, with the High Judicial and Prosecutorial Council in BiH (the self-contained administrative body of justice) lustration is being performed without law. In Croatia, though, scepticism is still outweighing the understanding of the need for a lustration legislature. Thus, today there is neither a lustration law available nor has an opening of the archives of the Croatian secret service from the 1990s taken place.

„Lustration is meant to create a breathing space for democracy, where it can lay down roots without the danger that the people in high positions of power will try to undermine it. … 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.“ (Severin, Measures to dismantle the heritage of the former communist totalitarian systems, Doc. 7568, 3 June 1996)