This article was downloaded by [Western Washington University] [Cynthia MHorne]On 18 September 2014 At 1040Publisher RoutledgeInforma Ltd Registered in England and Wales Registered Number 1072954Registered office Mortimer House 37-41 Mortimer Street London W1T 3JHUK

DemocratizationPublication details including instructions for authorsand subscription informationhttpwwwtandfonlinecomloifdem20

Late lustration programmes inRomania and Poland supportingor undermining democratictransitionsCynthia M Horne aa Department of Political Science WesternWashington University 516 High Street BellinghamWA 98225 USAPublished online 06 Apr 2009

To cite this article Cynthia M Horne (2009) Late lustration programmes in Romaniaand Poland supporting or undermining democratic transitions Democratization 162344-376 DOI 10108013510340902732581

To link to this article httpdxdoiorg10108013510340902732581

PLEASE SCROLL DOWN FOR ARTICLE

Taylor amp Francis makes every effort to ensure the accuracy of all theinformation (the ldquoContentrdquo) contained in the publications on our platformHowever Taylor amp Francis our agents and our licensors make norepresentations or warranties whatsoever as to the accuracy completeness orsuitability for any purpose of the Content Any opinions and views expressedin this publication are the opinions and views of the authors and are not theviews of or endorsed by Taylor amp Francis The accuracy of the Content shouldnot be relied upon and should be independently verified with primary sourcesof information Taylor and Francis shall not be liable for any losses actionsclaims proceedings demands costs expenses damages and other liabilitieswhatsoever or howsoever caused arising directly or indirectly in connectionwith in relation to or arising out of the use of the Content

This article may be used for research teaching and private study purposesAny substantial or systematic reproduction redistribution reselling loan sub-licensing systematic supply or distribution in any form to anyone is expresslyforbidden Terms amp Conditions of access and use can be found at httpwwwtandfonlinecompageterms-and-conditions

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Late lustration programmes in Romania and Polandsupporting or undermining democratic transitions

Cynthia M Horne

Department of Political Science Western Washington University 516 High StreetBellingham WA 98225 USA

(Received May 2008 final version received September 2008)

In 2006 Poland and Romania embarked on renewed lustration programmesThese late lustration policies expanded the scope and transparency measuresassociated with lustration as a form of transitional justice While earlylustration measures targeted political elites late lustration policies includepublic and private sector positions such as journalists academics businessleaders and others in lsquopositions of public trustrsquo Given the legalcontroversy and moral complexity surrounding lustration why lustrate solate in the post-communist transition and why expand the policies Thedominant explanation is that lustration is a tool of party politics and is athreat to democratic consolidation However the late lustration programmesdo not fit this hypothesis neatly The new laws have been restructured andpackaged with other reform programmes specifically anticorruptionprogrammes Late lustration has evolved to include economic and social aswell as political concerns As such some post-communist governments inCentral and Eastern Europe appear to be trying to use lustration as a way tofurther the democratic transitions by addressing remaining public concernsabout corruption distrust and inequality

Keywords Poland Romania lustration transitional justice elites transitionanticorruption

Introduction

We had free elections we elected a free parliament we have a free press we havea democratic government Yet [t]here still exist and work the powerful structuresof the former regime Many places are governed by the same people as beforeThey are connected to managers of industrial enterprises There exist immensebureaucratic colossuses that preclude rational economic behavior of individual enter-prises and firms The old bureaucracy persists in all levels

Vaclav Havel former President of the Czech Republic1

ISSN 1351-0347 printISSN 1743-890X online 2009 Taylor amp Francis

DOI 10108013510340902732581

httpwwwinformaworldcom

Email cynthiahornewwuedu

DemocratizationVol 16 No 2 April 2009 344ndash376

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Lustration or the vetting of former communist secret police collaborators frompublic office is the Central and East European (CEE) variant of transitionaljustice adopted in different incarnations by many countries in the region sincethe fall of communism Lustration policies like other vetting policies lsquoaim atexcluding from public service persons with serious integrity deficits in order to(re-)establish civic trust and (re-) legitimize public institutionsrsquo2 This framingof lustration as well as the legitimacy and legality of lustration have been extre-mely controversial both regionally and internationally3 Mismanagement ofsecret police files salacious accusations about political leaders illegally publi-cized personal information contained in the files questions about the veracity ofinformation and the proliferation of rumours about wide-scale bureaucraticvetting in many countries in CEE all contributed to fears that lustration was anew form of purging masquerading as transitional justice4

Despite the contentious nature of lustration and many of the early programma-tic problems a wave of countries in CEE has recently opted for late or renewedlustration policies In 2006 more than 15 years after the 1989 revolutions bothPoland and Romania embarked on new or renewed lustration policies In 2004Slovakia reengaged with its previously truncated lustration programme5 In2004 Slovenia started lustration 12 years after independence and Latviarenewed its lustration programme 13 years after independence6 In 2007 Macedo-nia instituted lustration laws 15 years after independence7 Even the Czech Repub-lic has elongated and expanded the scope of its lustration policies since its initiallaw in 1991 most recently screening police officers and civil employees of policeheadquarters for former communist secret service ties8 What is driving this waveof late and renewed lustration Why would countries that are between 12 and 18years into the transition process decide to embark on morally contentious andlogistically complicated lustration policies that could undermine the democratictransitions

To explore these questions this paper focuses on the cases of late lustration inPoland and Romania These countries are interesting comparisons because theyare at different stages in their economic and political transitions Poland hastwice the GDP per capita of Romania and is farther along in its post-communistpolitical consolidation than Romania9 They have different internationalconstraints Poland became a member of the European Union in 2004 whileRomania became a member in January 2007 and continues to be strongly criti-cized by the EU for lack of progress in meeting anti-corruption and rule of lawtargets10 They had different approaches to lustration at the start of the transitionwith Poland implementing a minimally invasive lustration policy early on andRomania not adopting any real lustration Yet despite the different domestic pol-itical institutions different levels of market reforms different early approaches tolustration and the different international constraints both have chosen similar latelustration policies allegedly to accomplish the goal of democratic consolidation

I show that in the cases of Poland and Romania late lustration looks substan-tially different from early lustration programmes Late lustration has expanded the

Democratization 345

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

scope and transparency levels of earlier lustration programmes rendering latelustration a very different process with a different mandate The screening andvetting measures no longer focus exclusively on political elites but include a rangeof public quasi-public and even private sector positions The new measures targeta different group of individuals ndash persons in lsquopositions of public trustrsquo broadlydefined in social economic and political terms Late lustration policies arereframed and implemented in conjunction with and in some cases as a substitutefor anti-corruption measures Lustration laws are being used by governments toaddress public frustration and inequity associated with the continued privilegingof former communist elites across academe business politics and the mediaThey have been reconfigured with the hope that they can further some of thestalled components of the CEE democratic transitions

Late lustration policies

Lustration is a form of vetting specific to CEE and is narrowly defined as lsquospecialpublic employment laws [to] regulate the process of examining whether a personholding certain higher public positions worked or collaborated with the repressiveapparatus of the communist regimersquo11 The initial lustration programmes targetedagents of the communist secret services and temporarily excluded them from keypublic offices based upon actual involvement or lying about that involvement12

Lustration was rationalized as a form of institutional and symbolic changeInstitutionally it would result in bureaucratic turnover removing individualsfrom positions of power and symbolically it would demarcate a break with thepast Both processes are intended work in tandem to restore public trust in insti-tutions The implementation of lustration has varied across CEE including truthrevelation procedures publication of information about previous regime involve-ment andor removal from positions of power13

However this earlier limited definition of lustration focused exclusively onpublic office holders or secret police collaborators no longer captures the evolvingnature of the laws Lustration in practice can now include the screening of poli-ticians academics cultural directors and persons in lsquopositions of public trustrsquofor previous secret police collaboration or regime involvement in order to deter-mine their suitability for a range of public and quasi-public positions of powerDefining lustration as vetting of politicians no longer captures the reality ofvetting in the region Defining lustration as a process focused on ascertainingsecret police collaboration also does not capture the criteria being currentlyused for employment exclusion Therefore early definitions which defined lustra-tion in terms of who was vetted and the criteria on which they were vetted nowpoorly capture the more expansive and nationally situated process of lustration14

At its essence lustration is a form of employment-vetting who that involves andthe criteria for that exclusion are the subject of debate

Late lustration has extended the scope and transparency levels of the earlylustration programmes in a way which fundamentally changes their implementation

346 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and intent First the scope of positions requiring screening has broadened Whereearly lustration programmes focused on political elites and political office holdersin top positions of power late lustration programmes also target lesser positionsSupporting positions in the civil service and even positions of confidence in thepublic sector with links to political offices such as academic positions journalistslawyers school principals the clergy and bureaucratic posts are included in latelustration15 Restricting the private sector employment opportunities availableto former secret service agents or collaborators expands the scope and scale ofretroactive justice beyond ensuring the security of public institutions16 Latelustration is designed to address a larger swathe of society and a different rangeof institutions not simply the political elites

Second there is more transparency and systemization in late lustrationprogrammes than in the original lustration programmes More public access toinformation is built into the programmes with formalized agencies to safeguardand publicize the names of individuals Some of the initial lustration programmeshave been sullied because of the unofficial publicizing of names of lsquocollaboratorsrsquoon the Internet or the instrumental leaking of information about targeted peopleLustration was designed to be a legal process with due process safeguards andrights to appeal When the process takes on an extralegal component or spinsoutside the control of the agencies designed to safeguard the information and theprocess itself lustration starts to look more like the media-hyped lsquowitch huntsrsquothan a transparent rule of law process The new laws aim to redress some of theprevious problems by increasing transparency and mechanisms of accountability

For example Polandrsquos initial lustration programme in 1992 was narrow inscope with limited information access The tight control over information didnot stop the names from being leaked to the press thereby creating a sense thatthe lustration process was a lsquowitch huntrsquo17 The periodic leaking of names tothe press worked to undermine the perception that lustration was done in amanner consistent with rule of law safeguards Keeping information classifiedor away from the public can also undermine transparency and credibility InHungary for example the original lustration law was designed to keep infor-mation from the secret files classified for 30 years18 These failed early attemptsto minimize transparency delegitimized the lustration laws By enacting formaldisclosure procedures to improve public access and information transparencythe late lustration programmes have consciously designed rules to try to safeguardthe implementation and also the legitimacy of the laws

Why choose renewed and expanded late lustration policies at this point in thetransition There are three possible hypotheses I will explore First governmentsare choosing lustration because they think it will promote good governance andfurther the democratic transitions Second political parties are choosing lustrationas a tool against political opposition and challengers Third lustration policies areexternal cues or signals about the political economic and social reforms goingon within the country and are designed for international audiences such as theEuropean Union These hypotheses are not necessarily mutually exclusive

Democratization 347

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The following section both specifies and explains the logic supporting each ofthese hypotheses The case studies of Poland and Romania will then explore thecontent and initial implementation of the laws in order to assess the relativemerits of the explanations

Why late lustration

Promoting democracy symbolic and institutional changes

At its core lustration shares functional and normative features of as well as moraland legal dilemmas associated with other post-authoritarian transitional justicemeasures19 Despite the real moral and legal questions debated with all transitionaljustice measures there remains a strong postulated connection between retroactivejustice measures and democratic transitions20 CEE governments have situatedthemselves within this debate through their lustration policy choices ManyCEE governments claim that they are enacting lustration laws to improve the trust-worthiness of public and certain private institutions as part of their larger efforts topromote democratic consolidation In this framing lustration positively contrib-utes to the process of democratic consolidation both an act of symbolic politicsand a tool of bureaucraticinstitutional change

The Council of Europe affirmed this interpretation in its 1996 resolution OnMeasures to Dismantle the Heritage of Former Communist Totalitarian Systemhighlighting how lsquoold structures and thought patterns have to be dismantled andovercomersquo through lustration and vetting policies21 The United Nations HighCommissioner for Human Rights has highlighted vetting in CEE as an exampleof constructive transitional justice policies in a post-authoritarian context22 Sub-sequent lustration cases heard by the European Court of Human Rights haveupheld this interpretation about the positive relationship between transitionaljustice measures specifically lustration and democratic consolidation in theCEE context23 As such despite the controversy surrounding the use and abuseof lustration in CEE lustration policies remain situated in the larger debateabout transitional justice measures in post-authoritarian environments and theirrelationship to democratic consolidation

Drawing from the transitional justice literature CEE governments might beenacting late lustration programmes to effect procedural and symbolic changesthat have remained either problematic or neglected in their democratic transitionsProcedurally late lustration might improve the trustworthiness of public insti-tutions by prompting more extensive bureaucratic turnover and institutionalchange In CEE there is a strong correlation between current positions of econ-omic and political power and previous positions in the communist regimes24

Many CEE countries have seen former communist elites continue to cycle intonew positions of power with lustration failing to effect the projected institutionalchanges By 2002 63 of current leaders in Romania were also politicalleaders before 198925 OrsquoDwyerrsquos work has examined how large-scale public

348 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

administrative personnel additions can result in little reform and even counterpro-ductive consequences despite direct efforts to improve public institutions26 AsHavelrsquos quote from the beginning suggests despite free elections lsquothe old bureauc-racy persists in all levelsrsquo27

Economically informal networks of former secret police officials continue todominate economic activities In Romania it has been demonstrated that the mostsignificant factor predicting membership in the new business elite was past mem-bership in the communist elite28 In Poland the lsquomajor corruption scandals mixingbusiness and politics have generally involved individuals connected with the com-munist era secret policersquo29 Corruption levels have risen in Poland as economicgrowth has advanced and popular dissatisfaction with public institutions hasgrown with increases in economic inequality30 Polish and Romanian academicshave emphasized how informal understandings and unwritten agreementsbetween current political elites and former elites in positions of economicpower have created widespread perceptions that the transitions were unfair andincomplete31 Governments in the region are being pressed externally and intern-ally to address corruption and inequality of opportunity issues

Symbolically the countries in CEE could also be using lustration policies tosignal a break with the past A symbolic break might be especially important inthe case of negotiated settlements or relatively peaceful regime transitions inwhich a power-sharing agreement between opposition groups and the regime inpower was negotiated32 The peaceful CEE lsquoVelvet Revolutionsrsquo are examplesof negotiated settlements However there is growing debate in CEE aboutwhether the price of peace in negotiated settlements was too high For examplein the Polish case a lsquothick linersquo was drawn between the past and the presentwith no clear bureaucratic reorganization to demarcate the change33 Questionsare arising about whether the concessions made at the Polish Round Table talksmight have overly minimized retroactive justice concerns lsquoMany on the rightnow regard the talks [Round Table] as a corrupt trade-off of power for impunityrsquo34

Therefore an optimal strategy for peace in the short term might have ignored ret-roactive justice concerns perpetuating a sense of continued injustice in the newsystem

According to this argument governments choose expansive lustration late inthe transition in order to effect political economic and social reforms that haveremained problematic What would the late lustration programmes look like tosupport this hypothesis The programmes would be broader in scope than early lus-tration programmes They would target a wider swathe of institutions and positionsthan simply national-level political elites If the problems the government wastrying to tackle were economic social and political in nature the new lawswould consider the competency and integrity of individuals in positions ofpower broadly defined in economic cultural social and political terms Addition-ally if lustration was designed to promote unrealized reforms in public institutionsthe original focus on public positions would be expanded to include supportinginstitutions as well such as quasi-public and in some cases private positions

Democratization 349

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Symbolic changes might require a change in the narrative surrounding latelustration with a focus on morality and renewal that had been less developedin the past Symbolically one might predict that lustration laws to cue off ofpolitically and socially salient issues directly addressing issues related to moralityequity and injustice In essence the expanded laws would aim at both broadbureaucratic and administrative change as well as tap into an important cognitiveor symbolic component to citizensrsquo perceptions of governance and publicinstitutions

Finally if late lustration was designed to effect yet unrealized institutionalreforms the new programmes would specifically correct problems with previouslustration programmes Those problems could be legal or moral If legitimacy andcredibility were problems with previous lustration programmes the new lustrationlaws would directly address these problems by changing accountability mechan-isms improving transparency and designing new oversight agencies in order toguarantee the fair implementation of the laws As such this series of hypotheseswould suggest fundamental changes in the structure intent framing andimplementation of the late lustration laws reflected in changes in scope andaccountability

Alternative hypotheses political manipulation and international signalling

Despite the intentions of the regional governments lsquothe dominant view in the aca-demic literature is that transitional justice is counterproductive because it interfereswith the development of democratic institutions and market economiesrsquo35 Offeprovides an arsenal of highly thought-provoking reasons why vetting lustrationand other forms of transitional justice could undermine trust in public institutionsand the goals of good governance36 The dominant explanation for late lustrationfits within this alternative framing of lustration highlighting how late lustration inparticular is a function of party politics

A narrowly defined party politics explanation would contend that lustrationlaws are politically manipulated by political parties in order to gain politicaladvantage This advantage could take the form of disadvantaging current orformer political opposition undermining the strength of certain candidatespersonally advantaging onersquos own party or bringing in a new younger cadre ofpoliticians not associated with the communist past37 From this perspective thelaws are often described as lsquoweapon[s] for exacting revenge against opponentsrsquo oras means to lsquodemobilize lawful opposition to the present regime or quite simplyas a method to exact personal revengersquo38 If lustration policies are elite-drivenacts of electoral politics these laws could undermine the process of democraticconsolidation If government motivations for lustration are duplicitous or self-serving citizen perceptions of government wonrsquot change and government compe-tencies wonrsquot change Even worse having political parties or politicians engage inblatant acts of political posturing for personal gain could undermine citizen trust inthe very fledgling public institutions that represent them Therefore if this

350 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

hypothesis holds true it would suggest that late lustration might fail to promote orat worst could actively undermine the trustworthiness of public institutions and theprocess of democratic consolidation

Testing this hypothesis is trickier than it appears Lustration policies like othertransitional justice measures are politically motivated They are generally enactedby recently elected political parties or new political regimes who then use theirnewfound voice to implement political changes39 Whether politically motivatedlaws become politically manipulated laws ndash laws used by a political party forpersonal advantage rather than to further democratization ndash is at the heart of thelustration controversy The test of political manipulation is if the laws arewielded against political parties for personal gain not whether or not they resultfrom political turnover or whether there are political implications

If a political manipulation hypothesis were to hold true one would see thepersonal advantaging of the party in power who enacted the expanded or renewedlustration policies If these policies resulted from party politics one would expectto see these policies being largely elite-driven benefiting political and economicelites This would be especially true for renewed or expanded lustration whichwould simply perpetuate cycles of political manipulation of the laws andconsume time and resources without actually advancing a reform agenda

This definition of party politics is intentionally narrow in order to avoid thedanger of an unfalsifiable and unverifiable party politics hypothesis Lustrationlaws are political and their impact will be political Teasing out when the lustra-tion laws are expanded in order to gain direct personal political advantage fromwhen the laws are expanded in order to effect political changes with possible indir-ect political implications is admittedly complex However by focusing on directrather than indirect political advantage and differentiating politically motivatedlaws from politically manipulated laws one can explore whether a party politicshypothesis captures the dynamic of late lustration Given that the motivation forthe laws as well as the implementation of the laws is important to the processof creating trustworthy public institutions this difference is critical

A second alternative explanation is that lustration could be an external signalto foreign investors international institutions and actors and other EU memberstates that domestic reform programmes are continuing to move forward Theproblem with focusing on external actors is that this could mean the policiesdonrsquot resonate with domestic-level concerns The legitimacy of the policies restson the extent to which they are considered socially politically and economicallyauthentic by CEE citizens For example in the case of Romania perhaps lustrationwas an attempt to cue international actors such as the European Union that itwas tackling economic and political reform issues specifically its corruptionproblems prior to joining in January 2007 Polandrsquos flagging economic growthrates and rounds of political corruption charges pushed Poland down from its pos-ition as a vanguard of the Visegrad to an economic laggard40 Perhaps late lustra-tion was an attempt to revitalize international investor interest in the Polisheconomy

Democratization 351

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

If the laws were designed for external rather than domestic actors one wouldexpect them to be strongly supported by international actors and domestic affili-ates of international bodies One might expect to see some international rewardfrom the laws either directly tied to the lustration reforms or as an acknowledg-ment of the continued reform efforts Signalling international actors aboutreforms could go hand in hand with changing citizen perceptions of the trust-worthiness of their own public institutions Therefore this explanation couldcomplement the first explanation but not the second

The following sections will take up the cases of Poland and Romania in orderto assess the relative strength of the explanations The cases will try to addressthe question why late lustration What late lustration might mean for democraticconsolidation is taken up in the conclusion

Poland

Background

From the very beginning Poland has had a complicated relationship with itslustration laws Various rounds of failed draft legal proposals several leakedlists of collaborators and cyclical repudiation of lustration and then adoption oflaws sometimes timed with the rise and fall of political parties have all createda morally discordant and logistically haphazard approach to lustration In 1989the first parliamentary motion on lustration was passed and in 1992 the firstlustration attempt was made However it wasnrsquot until 1996 that the Sejm (lowerhouse of parliament) began work on a comprehensive draft law and in August1997 a screening law finally entered into force41 The lustration programme con-centrated on screening rather than vetting people for collaboration with the SłuzbaBezpieczenstwa (SB) or the secret police services so people were not removedfrom positions unless they were shown to have lied on their lustration certificates

The law created a Lustration Court to verify the declarations of top officersand to punish in the event of false statements Some public officials resignedover collaboration allegations but largely there was limited bureaucratic turn-over42 The implementation of the 1997 lustration laws has been criticized asincomplete non-systematic and highly arbitrary exacerbated by the lack of willon the part of the Courts to implement the law43 It was not even possible torecruit the 21 judges required to sit on the Lustration Court thereby effectivelystalling the implementation of the laws for some time

The Institute of National Remembrance (IPN) was created in 1998 andcharged with archive custodial functions as well as responsibilities to assistwith the review of collaboration claims and background reviews of public officeseekers44 However there were still substantial problems with management ofinformation and implementation of the laws Specifically in 2005 a journaliststole an IPN unofficial list of up to 240000 lsquocollaboratorsrsquo nicknamed lsquoWildsteinrsquosListrsquo and posted the information on the Internet The list was not credible proved

352 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Lustration or the vetting of former communist secret police collaborators frompublic office is the Central and East European (CEE) variant of transitionaljustice adopted in different incarnations by many countries in the region sincethe fall of communism Lustration policies like other vetting policies lsquoaim atexcluding from public service persons with serious integrity deficits in order to(re-)establish civic trust and (re-) legitimize public institutionsrsquo2 This framingof lustration as well as the legitimacy and legality of lustration have been extre-mely controversial both regionally and internationally3 Mismanagement ofsecret police files salacious accusations about political leaders illegally publi-cized personal information contained in the files questions about the veracity ofinformation and the proliferation of rumours about wide-scale bureaucraticvetting in many countries in CEE all contributed to fears that lustration was anew form of purging masquerading as transitional justice4

Despite the contentious nature of lustration and many of the early programma-tic problems a wave of countries in CEE has recently opted for late or renewedlustration policies In 2006 more than 15 years after the 1989 revolutions bothPoland and Romania embarked on new or renewed lustration policies In 2004Slovakia reengaged with its previously truncated lustration programme5 In2004 Slovenia started lustration 12 years after independence and Latviarenewed its lustration programme 13 years after independence6 In 2007 Macedo-nia instituted lustration laws 15 years after independence7 Even the Czech Repub-lic has elongated and expanded the scope of its lustration policies since its initiallaw in 1991 most recently screening police officers and civil employees of policeheadquarters for former communist secret service ties8 What is driving this waveof late and renewed lustration Why would countries that are between 12 and 18years into the transition process decide to embark on morally contentious andlogistically complicated lustration policies that could undermine the democratictransitions

To explore these questions this paper focuses on the cases of late lustration inPoland and Romania These countries are interesting comparisons because theyare at different stages in their economic and political transitions Poland hastwice the GDP per capita of Romania and is farther along in its post-communistpolitical consolidation than Romania9 They have different internationalconstraints Poland became a member of the European Union in 2004 whileRomania became a member in January 2007 and continues to be strongly criti-cized by the EU for lack of progress in meeting anti-corruption and rule of lawtargets10 They had different approaches to lustration at the start of the transitionwith Poland implementing a minimally invasive lustration policy early on andRomania not adopting any real lustration Yet despite the different domestic pol-itical institutions different levels of market reforms different early approaches tolustration and the different international constraints both have chosen similar latelustration policies allegedly to accomplish the goal of democratic consolidation

I show that in the cases of Poland and Romania late lustration looks substan-tially different from early lustration programmes Late lustration has expanded the

Democratization 345

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

scope and transparency levels of earlier lustration programmes rendering latelustration a very different process with a different mandate The screening andvetting measures no longer focus exclusively on political elites but include a rangeof public quasi-public and even private sector positions The new measures targeta different group of individuals ndash persons in lsquopositions of public trustrsquo broadlydefined in social economic and political terms Late lustration policies arereframed and implemented in conjunction with and in some cases as a substitutefor anti-corruption measures Lustration laws are being used by governments toaddress public frustration and inequity associated with the continued privilegingof former communist elites across academe business politics and the mediaThey have been reconfigured with the hope that they can further some of thestalled components of the CEE democratic transitions

Late lustration policies

Lustration is a form of vetting specific to CEE and is narrowly defined as lsquospecialpublic employment laws [to] regulate the process of examining whether a personholding certain higher public positions worked or collaborated with the repressiveapparatus of the communist regimersquo11 The initial lustration programmes targetedagents of the communist secret services and temporarily excluded them from keypublic offices based upon actual involvement or lying about that involvement12

Lustration was rationalized as a form of institutional and symbolic changeInstitutionally it would result in bureaucratic turnover removing individualsfrom positions of power and symbolically it would demarcate a break with thepast Both processes are intended work in tandem to restore public trust in insti-tutions The implementation of lustration has varied across CEE including truthrevelation procedures publication of information about previous regime involve-ment andor removal from positions of power13

However this earlier limited definition of lustration focused exclusively onpublic office holders or secret police collaborators no longer captures the evolvingnature of the laws Lustration in practice can now include the screening of poli-ticians academics cultural directors and persons in lsquopositions of public trustrsquofor previous secret police collaboration or regime involvement in order to deter-mine their suitability for a range of public and quasi-public positions of powerDefining lustration as vetting of politicians no longer captures the reality ofvetting in the region Defining lustration as a process focused on ascertainingsecret police collaboration also does not capture the criteria being currentlyused for employment exclusion Therefore early definitions which defined lustra-tion in terms of who was vetted and the criteria on which they were vetted nowpoorly capture the more expansive and nationally situated process of lustration14

At its essence lustration is a form of employment-vetting who that involves andthe criteria for that exclusion are the subject of debate

Late lustration has extended the scope and transparency levels of the earlylustration programmes in a way which fundamentally changes their implementation

346 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and intent First the scope of positions requiring screening has broadened Whereearly lustration programmes focused on political elites and political office holdersin top positions of power late lustration programmes also target lesser positionsSupporting positions in the civil service and even positions of confidence in thepublic sector with links to political offices such as academic positions journalistslawyers school principals the clergy and bureaucratic posts are included in latelustration15 Restricting the private sector employment opportunities availableto former secret service agents or collaborators expands the scope and scale ofretroactive justice beyond ensuring the security of public institutions16 Latelustration is designed to address a larger swathe of society and a different rangeof institutions not simply the political elites

Second there is more transparency and systemization in late lustrationprogrammes than in the original lustration programmes More public access toinformation is built into the programmes with formalized agencies to safeguardand publicize the names of individuals Some of the initial lustration programmeshave been sullied because of the unofficial publicizing of names of lsquocollaboratorsrsquoon the Internet or the instrumental leaking of information about targeted peopleLustration was designed to be a legal process with due process safeguards andrights to appeal When the process takes on an extralegal component or spinsoutside the control of the agencies designed to safeguard the information and theprocess itself lustration starts to look more like the media-hyped lsquowitch huntsrsquothan a transparent rule of law process The new laws aim to redress some of theprevious problems by increasing transparency and mechanisms of accountability

For example Polandrsquos initial lustration programme in 1992 was narrow inscope with limited information access The tight control over information didnot stop the names from being leaked to the press thereby creating a sense thatthe lustration process was a lsquowitch huntrsquo17 The periodic leaking of names tothe press worked to undermine the perception that lustration was done in amanner consistent with rule of law safeguards Keeping information classifiedor away from the public can also undermine transparency and credibility InHungary for example the original lustration law was designed to keep infor-mation from the secret files classified for 30 years18 These failed early attemptsto minimize transparency delegitimized the lustration laws By enacting formaldisclosure procedures to improve public access and information transparencythe late lustration programmes have consciously designed rules to try to safeguardthe implementation and also the legitimacy of the laws

Why choose renewed and expanded late lustration policies at this point in thetransition There are three possible hypotheses I will explore First governmentsare choosing lustration because they think it will promote good governance andfurther the democratic transitions Second political parties are choosing lustrationas a tool against political opposition and challengers Third lustration policies areexternal cues or signals about the political economic and social reforms goingon within the country and are designed for international audiences such as theEuropean Union These hypotheses are not necessarily mutually exclusive

Democratization 347

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The following section both specifies and explains the logic supporting each ofthese hypotheses The case studies of Poland and Romania will then explore thecontent and initial implementation of the laws in order to assess the relativemerits of the explanations

Why late lustration

Promoting democracy symbolic and institutional changes

At its core lustration shares functional and normative features of as well as moraland legal dilemmas associated with other post-authoritarian transitional justicemeasures19 Despite the real moral and legal questions debated with all transitionaljustice measures there remains a strong postulated connection between retroactivejustice measures and democratic transitions20 CEE governments have situatedthemselves within this debate through their lustration policy choices ManyCEE governments claim that they are enacting lustration laws to improve the trust-worthiness of public and certain private institutions as part of their larger efforts topromote democratic consolidation In this framing lustration positively contrib-utes to the process of democratic consolidation both an act of symbolic politicsand a tool of bureaucraticinstitutional change

The Council of Europe affirmed this interpretation in its 1996 resolution OnMeasures to Dismantle the Heritage of Former Communist Totalitarian Systemhighlighting how lsquoold structures and thought patterns have to be dismantled andovercomersquo through lustration and vetting policies21 The United Nations HighCommissioner for Human Rights has highlighted vetting in CEE as an exampleof constructive transitional justice policies in a post-authoritarian context22 Sub-sequent lustration cases heard by the European Court of Human Rights haveupheld this interpretation about the positive relationship between transitionaljustice measures specifically lustration and democratic consolidation in theCEE context23 As such despite the controversy surrounding the use and abuseof lustration in CEE lustration policies remain situated in the larger debateabout transitional justice measures in post-authoritarian environments and theirrelationship to democratic consolidation

Drawing from the transitional justice literature CEE governments might beenacting late lustration programmes to effect procedural and symbolic changesthat have remained either problematic or neglected in their democratic transitionsProcedurally late lustration might improve the trustworthiness of public insti-tutions by prompting more extensive bureaucratic turnover and institutionalchange In CEE there is a strong correlation between current positions of econ-omic and political power and previous positions in the communist regimes24

Many CEE countries have seen former communist elites continue to cycle intonew positions of power with lustration failing to effect the projected institutionalchanges By 2002 63 of current leaders in Romania were also politicalleaders before 198925 OrsquoDwyerrsquos work has examined how large-scale public

348 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

administrative personnel additions can result in little reform and even counterpro-ductive consequences despite direct efforts to improve public institutions26 AsHavelrsquos quote from the beginning suggests despite free elections lsquothe old bureauc-racy persists in all levelsrsquo27

Economically informal networks of former secret police officials continue todominate economic activities In Romania it has been demonstrated that the mostsignificant factor predicting membership in the new business elite was past mem-bership in the communist elite28 In Poland the lsquomajor corruption scandals mixingbusiness and politics have generally involved individuals connected with the com-munist era secret policersquo29 Corruption levels have risen in Poland as economicgrowth has advanced and popular dissatisfaction with public institutions hasgrown with increases in economic inequality30 Polish and Romanian academicshave emphasized how informal understandings and unwritten agreementsbetween current political elites and former elites in positions of economicpower have created widespread perceptions that the transitions were unfair andincomplete31 Governments in the region are being pressed externally and intern-ally to address corruption and inequality of opportunity issues

Symbolically the countries in CEE could also be using lustration policies tosignal a break with the past A symbolic break might be especially important inthe case of negotiated settlements or relatively peaceful regime transitions inwhich a power-sharing agreement between opposition groups and the regime inpower was negotiated32 The peaceful CEE lsquoVelvet Revolutionsrsquo are examplesof negotiated settlements However there is growing debate in CEE aboutwhether the price of peace in negotiated settlements was too high For examplein the Polish case a lsquothick linersquo was drawn between the past and the presentwith no clear bureaucratic reorganization to demarcate the change33 Questionsare arising about whether the concessions made at the Polish Round Table talksmight have overly minimized retroactive justice concerns lsquoMany on the rightnow regard the talks [Round Table] as a corrupt trade-off of power for impunityrsquo34

Therefore an optimal strategy for peace in the short term might have ignored ret-roactive justice concerns perpetuating a sense of continued injustice in the newsystem

According to this argument governments choose expansive lustration late inthe transition in order to effect political economic and social reforms that haveremained problematic What would the late lustration programmes look like tosupport this hypothesis The programmes would be broader in scope than early lus-tration programmes They would target a wider swathe of institutions and positionsthan simply national-level political elites If the problems the government wastrying to tackle were economic social and political in nature the new lawswould consider the competency and integrity of individuals in positions ofpower broadly defined in economic cultural social and political terms Addition-ally if lustration was designed to promote unrealized reforms in public institutionsthe original focus on public positions would be expanded to include supportinginstitutions as well such as quasi-public and in some cases private positions

Democratization 349

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Symbolic changes might require a change in the narrative surrounding latelustration with a focus on morality and renewal that had been less developedin the past Symbolically one might predict that lustration laws to cue off ofpolitically and socially salient issues directly addressing issues related to moralityequity and injustice In essence the expanded laws would aim at both broadbureaucratic and administrative change as well as tap into an important cognitiveor symbolic component to citizensrsquo perceptions of governance and publicinstitutions

Finally if late lustration was designed to effect yet unrealized institutionalreforms the new programmes would specifically correct problems with previouslustration programmes Those problems could be legal or moral If legitimacy andcredibility were problems with previous lustration programmes the new lustrationlaws would directly address these problems by changing accountability mechan-isms improving transparency and designing new oversight agencies in order toguarantee the fair implementation of the laws As such this series of hypotheseswould suggest fundamental changes in the structure intent framing andimplementation of the late lustration laws reflected in changes in scope andaccountability

Alternative hypotheses political manipulation and international signalling

Despite the intentions of the regional governments lsquothe dominant view in the aca-demic literature is that transitional justice is counterproductive because it interfereswith the development of democratic institutions and market economiesrsquo35 Offeprovides an arsenal of highly thought-provoking reasons why vetting lustrationand other forms of transitional justice could undermine trust in public institutionsand the goals of good governance36 The dominant explanation for late lustrationfits within this alternative framing of lustration highlighting how late lustration inparticular is a function of party politics

A narrowly defined party politics explanation would contend that lustrationlaws are politically manipulated by political parties in order to gain politicaladvantage This advantage could take the form of disadvantaging current orformer political opposition undermining the strength of certain candidatespersonally advantaging onersquos own party or bringing in a new younger cadre ofpoliticians not associated with the communist past37 From this perspective thelaws are often described as lsquoweapon[s] for exacting revenge against opponentsrsquo oras means to lsquodemobilize lawful opposition to the present regime or quite simplyas a method to exact personal revengersquo38 If lustration policies are elite-drivenacts of electoral politics these laws could undermine the process of democraticconsolidation If government motivations for lustration are duplicitous or self-serving citizen perceptions of government wonrsquot change and government compe-tencies wonrsquot change Even worse having political parties or politicians engage inblatant acts of political posturing for personal gain could undermine citizen trust inthe very fledgling public institutions that represent them Therefore if this

350 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

hypothesis holds true it would suggest that late lustration might fail to promote orat worst could actively undermine the trustworthiness of public institutions and theprocess of democratic consolidation

Testing this hypothesis is trickier than it appears Lustration policies like othertransitional justice measures are politically motivated They are generally enactedby recently elected political parties or new political regimes who then use theirnewfound voice to implement political changes39 Whether politically motivatedlaws become politically manipulated laws ndash laws used by a political party forpersonal advantage rather than to further democratization ndash is at the heart of thelustration controversy The test of political manipulation is if the laws arewielded against political parties for personal gain not whether or not they resultfrom political turnover or whether there are political implications

If a political manipulation hypothesis were to hold true one would see thepersonal advantaging of the party in power who enacted the expanded or renewedlustration policies If these policies resulted from party politics one would expectto see these policies being largely elite-driven benefiting political and economicelites This would be especially true for renewed or expanded lustration whichwould simply perpetuate cycles of political manipulation of the laws andconsume time and resources without actually advancing a reform agenda

This definition of party politics is intentionally narrow in order to avoid thedanger of an unfalsifiable and unverifiable party politics hypothesis Lustrationlaws are political and their impact will be political Teasing out when the lustra-tion laws are expanded in order to gain direct personal political advantage fromwhen the laws are expanded in order to effect political changes with possible indir-ect political implications is admittedly complex However by focusing on directrather than indirect political advantage and differentiating politically motivatedlaws from politically manipulated laws one can explore whether a party politicshypothesis captures the dynamic of late lustration Given that the motivation forthe laws as well as the implementation of the laws is important to the processof creating trustworthy public institutions this difference is critical

A second alternative explanation is that lustration could be an external signalto foreign investors international institutions and actors and other EU memberstates that domestic reform programmes are continuing to move forward Theproblem with focusing on external actors is that this could mean the policiesdonrsquot resonate with domestic-level concerns The legitimacy of the policies restson the extent to which they are considered socially politically and economicallyauthentic by CEE citizens For example in the case of Romania perhaps lustrationwas an attempt to cue international actors such as the European Union that itwas tackling economic and political reform issues specifically its corruptionproblems prior to joining in January 2007 Polandrsquos flagging economic growthrates and rounds of political corruption charges pushed Poland down from its pos-ition as a vanguard of the Visegrad to an economic laggard40 Perhaps late lustra-tion was an attempt to revitalize international investor interest in the Polisheconomy

Democratization 351

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

If the laws were designed for external rather than domestic actors one wouldexpect them to be strongly supported by international actors and domestic affili-ates of international bodies One might expect to see some international rewardfrom the laws either directly tied to the lustration reforms or as an acknowledg-ment of the continued reform efforts Signalling international actors aboutreforms could go hand in hand with changing citizen perceptions of the trust-worthiness of their own public institutions Therefore this explanation couldcomplement the first explanation but not the second

The following sections will take up the cases of Poland and Romania in orderto assess the relative strength of the explanations The cases will try to addressthe question why late lustration What late lustration might mean for democraticconsolidation is taken up in the conclusion

Poland

Background

From the very beginning Poland has had a complicated relationship with itslustration laws Various rounds of failed draft legal proposals several leakedlists of collaborators and cyclical repudiation of lustration and then adoption oflaws sometimes timed with the rise and fall of political parties have all createda morally discordant and logistically haphazard approach to lustration In 1989the first parliamentary motion on lustration was passed and in 1992 the firstlustration attempt was made However it wasnrsquot until 1996 that the Sejm (lowerhouse of parliament) began work on a comprehensive draft law and in August1997 a screening law finally entered into force41 The lustration programme con-centrated on screening rather than vetting people for collaboration with the SłuzbaBezpieczenstwa (SB) or the secret police services so people were not removedfrom positions unless they were shown to have lied on their lustration certificates

The law created a Lustration Court to verify the declarations of top officersand to punish in the event of false statements Some public officials resignedover collaboration allegations but largely there was limited bureaucratic turn-over42 The implementation of the 1997 lustration laws has been criticized asincomplete non-systematic and highly arbitrary exacerbated by the lack of willon the part of the Courts to implement the law43 It was not even possible torecruit the 21 judges required to sit on the Lustration Court thereby effectivelystalling the implementation of the laws for some time

The Institute of National Remembrance (IPN) was created in 1998 andcharged with archive custodial functions as well as responsibilities to assistwith the review of collaboration claims and background reviews of public officeseekers44 However there were still substantial problems with management ofinformation and implementation of the laws Specifically in 2005 a journaliststole an IPN unofficial list of up to 240000 lsquocollaboratorsrsquo nicknamed lsquoWildsteinrsquosListrsquo and posted the information on the Internet The list was not credible proved

352 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

scope and transparency levels of earlier lustration programmes rendering latelustration a very different process with a different mandate The screening andvetting measures no longer focus exclusively on political elites but include a rangeof public quasi-public and even private sector positions The new measures targeta different group of individuals ndash persons in lsquopositions of public trustrsquo broadlydefined in social economic and political terms Late lustration policies arereframed and implemented in conjunction with and in some cases as a substitutefor anti-corruption measures Lustration laws are being used by governments toaddress public frustration and inequity associated with the continued privilegingof former communist elites across academe business politics and the mediaThey have been reconfigured with the hope that they can further some of thestalled components of the CEE democratic transitions

Late lustration policies

Lustration is a form of vetting specific to CEE and is narrowly defined as lsquospecialpublic employment laws [to] regulate the process of examining whether a personholding certain higher public positions worked or collaborated with the repressiveapparatus of the communist regimersquo11 The initial lustration programmes targetedagents of the communist secret services and temporarily excluded them from keypublic offices based upon actual involvement or lying about that involvement12

Lustration was rationalized as a form of institutional and symbolic changeInstitutionally it would result in bureaucratic turnover removing individualsfrom positions of power and symbolically it would demarcate a break with thepast Both processes are intended work in tandem to restore public trust in insti-tutions The implementation of lustration has varied across CEE including truthrevelation procedures publication of information about previous regime involve-ment andor removal from positions of power13

However this earlier limited definition of lustration focused exclusively onpublic office holders or secret police collaborators no longer captures the evolvingnature of the laws Lustration in practice can now include the screening of poli-ticians academics cultural directors and persons in lsquopositions of public trustrsquofor previous secret police collaboration or regime involvement in order to deter-mine their suitability for a range of public and quasi-public positions of powerDefining lustration as vetting of politicians no longer captures the reality ofvetting in the region Defining lustration as a process focused on ascertainingsecret police collaboration also does not capture the criteria being currentlyused for employment exclusion Therefore early definitions which defined lustra-tion in terms of who was vetted and the criteria on which they were vetted nowpoorly capture the more expansive and nationally situated process of lustration14

At its essence lustration is a form of employment-vetting who that involves andthe criteria for that exclusion are the subject of debate

Late lustration has extended the scope and transparency levels of the earlylustration programmes in a way which fundamentally changes their implementation

346 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and intent First the scope of positions requiring screening has broadened Whereearly lustration programmes focused on political elites and political office holdersin top positions of power late lustration programmes also target lesser positionsSupporting positions in the civil service and even positions of confidence in thepublic sector with links to political offices such as academic positions journalistslawyers school principals the clergy and bureaucratic posts are included in latelustration15 Restricting the private sector employment opportunities availableto former secret service agents or collaborators expands the scope and scale ofretroactive justice beyond ensuring the security of public institutions16 Latelustration is designed to address a larger swathe of society and a different rangeof institutions not simply the political elites

Second there is more transparency and systemization in late lustrationprogrammes than in the original lustration programmes More public access toinformation is built into the programmes with formalized agencies to safeguardand publicize the names of individuals Some of the initial lustration programmeshave been sullied because of the unofficial publicizing of names of lsquocollaboratorsrsquoon the Internet or the instrumental leaking of information about targeted peopleLustration was designed to be a legal process with due process safeguards andrights to appeal When the process takes on an extralegal component or spinsoutside the control of the agencies designed to safeguard the information and theprocess itself lustration starts to look more like the media-hyped lsquowitch huntsrsquothan a transparent rule of law process The new laws aim to redress some of theprevious problems by increasing transparency and mechanisms of accountability

For example Polandrsquos initial lustration programme in 1992 was narrow inscope with limited information access The tight control over information didnot stop the names from being leaked to the press thereby creating a sense thatthe lustration process was a lsquowitch huntrsquo17 The periodic leaking of names tothe press worked to undermine the perception that lustration was done in amanner consistent with rule of law safeguards Keeping information classifiedor away from the public can also undermine transparency and credibility InHungary for example the original lustration law was designed to keep infor-mation from the secret files classified for 30 years18 These failed early attemptsto minimize transparency delegitimized the lustration laws By enacting formaldisclosure procedures to improve public access and information transparencythe late lustration programmes have consciously designed rules to try to safeguardthe implementation and also the legitimacy of the laws

Why choose renewed and expanded late lustration policies at this point in thetransition There are three possible hypotheses I will explore First governmentsare choosing lustration because they think it will promote good governance andfurther the democratic transitions Second political parties are choosing lustrationas a tool against political opposition and challengers Third lustration policies areexternal cues or signals about the political economic and social reforms goingon within the country and are designed for international audiences such as theEuropean Union These hypotheses are not necessarily mutually exclusive

Democratization 347

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The following section both specifies and explains the logic supporting each ofthese hypotheses The case studies of Poland and Romania will then explore thecontent and initial implementation of the laws in order to assess the relativemerits of the explanations

Why late lustration

Promoting democracy symbolic and institutional changes

At its core lustration shares functional and normative features of as well as moraland legal dilemmas associated with other post-authoritarian transitional justicemeasures19 Despite the real moral and legal questions debated with all transitionaljustice measures there remains a strong postulated connection between retroactivejustice measures and democratic transitions20 CEE governments have situatedthemselves within this debate through their lustration policy choices ManyCEE governments claim that they are enacting lustration laws to improve the trust-worthiness of public and certain private institutions as part of their larger efforts topromote democratic consolidation In this framing lustration positively contrib-utes to the process of democratic consolidation both an act of symbolic politicsand a tool of bureaucraticinstitutional change

The Council of Europe affirmed this interpretation in its 1996 resolution OnMeasures to Dismantle the Heritage of Former Communist Totalitarian Systemhighlighting how lsquoold structures and thought patterns have to be dismantled andovercomersquo through lustration and vetting policies21 The United Nations HighCommissioner for Human Rights has highlighted vetting in CEE as an exampleof constructive transitional justice policies in a post-authoritarian context22 Sub-sequent lustration cases heard by the European Court of Human Rights haveupheld this interpretation about the positive relationship between transitionaljustice measures specifically lustration and democratic consolidation in theCEE context23 As such despite the controversy surrounding the use and abuseof lustration in CEE lustration policies remain situated in the larger debateabout transitional justice measures in post-authoritarian environments and theirrelationship to democratic consolidation

Drawing from the transitional justice literature CEE governments might beenacting late lustration programmes to effect procedural and symbolic changesthat have remained either problematic or neglected in their democratic transitionsProcedurally late lustration might improve the trustworthiness of public insti-tutions by prompting more extensive bureaucratic turnover and institutionalchange In CEE there is a strong correlation between current positions of econ-omic and political power and previous positions in the communist regimes24

Many CEE countries have seen former communist elites continue to cycle intonew positions of power with lustration failing to effect the projected institutionalchanges By 2002 63 of current leaders in Romania were also politicalleaders before 198925 OrsquoDwyerrsquos work has examined how large-scale public

348 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

administrative personnel additions can result in little reform and even counterpro-ductive consequences despite direct efforts to improve public institutions26 AsHavelrsquos quote from the beginning suggests despite free elections lsquothe old bureauc-racy persists in all levelsrsquo27

Economically informal networks of former secret police officials continue todominate economic activities In Romania it has been demonstrated that the mostsignificant factor predicting membership in the new business elite was past mem-bership in the communist elite28 In Poland the lsquomajor corruption scandals mixingbusiness and politics have generally involved individuals connected with the com-munist era secret policersquo29 Corruption levels have risen in Poland as economicgrowth has advanced and popular dissatisfaction with public institutions hasgrown with increases in economic inequality30 Polish and Romanian academicshave emphasized how informal understandings and unwritten agreementsbetween current political elites and former elites in positions of economicpower have created widespread perceptions that the transitions were unfair andincomplete31 Governments in the region are being pressed externally and intern-ally to address corruption and inequality of opportunity issues

Symbolically the countries in CEE could also be using lustration policies tosignal a break with the past A symbolic break might be especially important inthe case of negotiated settlements or relatively peaceful regime transitions inwhich a power-sharing agreement between opposition groups and the regime inpower was negotiated32 The peaceful CEE lsquoVelvet Revolutionsrsquo are examplesof negotiated settlements However there is growing debate in CEE aboutwhether the price of peace in negotiated settlements was too high For examplein the Polish case a lsquothick linersquo was drawn between the past and the presentwith no clear bureaucratic reorganization to demarcate the change33 Questionsare arising about whether the concessions made at the Polish Round Table talksmight have overly minimized retroactive justice concerns lsquoMany on the rightnow regard the talks [Round Table] as a corrupt trade-off of power for impunityrsquo34

Therefore an optimal strategy for peace in the short term might have ignored ret-roactive justice concerns perpetuating a sense of continued injustice in the newsystem

According to this argument governments choose expansive lustration late inthe transition in order to effect political economic and social reforms that haveremained problematic What would the late lustration programmes look like tosupport this hypothesis The programmes would be broader in scope than early lus-tration programmes They would target a wider swathe of institutions and positionsthan simply national-level political elites If the problems the government wastrying to tackle were economic social and political in nature the new lawswould consider the competency and integrity of individuals in positions ofpower broadly defined in economic cultural social and political terms Addition-ally if lustration was designed to promote unrealized reforms in public institutionsthe original focus on public positions would be expanded to include supportinginstitutions as well such as quasi-public and in some cases private positions

Democratization 349

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Symbolic changes might require a change in the narrative surrounding latelustration with a focus on morality and renewal that had been less developedin the past Symbolically one might predict that lustration laws to cue off ofpolitically and socially salient issues directly addressing issues related to moralityequity and injustice In essence the expanded laws would aim at both broadbureaucratic and administrative change as well as tap into an important cognitiveor symbolic component to citizensrsquo perceptions of governance and publicinstitutions

Finally if late lustration was designed to effect yet unrealized institutionalreforms the new programmes would specifically correct problems with previouslustration programmes Those problems could be legal or moral If legitimacy andcredibility were problems with previous lustration programmes the new lustrationlaws would directly address these problems by changing accountability mechan-isms improving transparency and designing new oversight agencies in order toguarantee the fair implementation of the laws As such this series of hypotheseswould suggest fundamental changes in the structure intent framing andimplementation of the late lustration laws reflected in changes in scope andaccountability

Alternative hypotheses political manipulation and international signalling

Despite the intentions of the regional governments lsquothe dominant view in the aca-demic literature is that transitional justice is counterproductive because it interfereswith the development of democratic institutions and market economiesrsquo35 Offeprovides an arsenal of highly thought-provoking reasons why vetting lustrationand other forms of transitional justice could undermine trust in public institutionsand the goals of good governance36 The dominant explanation for late lustrationfits within this alternative framing of lustration highlighting how late lustration inparticular is a function of party politics

A narrowly defined party politics explanation would contend that lustrationlaws are politically manipulated by political parties in order to gain politicaladvantage This advantage could take the form of disadvantaging current orformer political opposition undermining the strength of certain candidatespersonally advantaging onersquos own party or bringing in a new younger cadre ofpoliticians not associated with the communist past37 From this perspective thelaws are often described as lsquoweapon[s] for exacting revenge against opponentsrsquo oras means to lsquodemobilize lawful opposition to the present regime or quite simplyas a method to exact personal revengersquo38 If lustration policies are elite-drivenacts of electoral politics these laws could undermine the process of democraticconsolidation If government motivations for lustration are duplicitous or self-serving citizen perceptions of government wonrsquot change and government compe-tencies wonrsquot change Even worse having political parties or politicians engage inblatant acts of political posturing for personal gain could undermine citizen trust inthe very fledgling public institutions that represent them Therefore if this

350 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

hypothesis holds true it would suggest that late lustration might fail to promote orat worst could actively undermine the trustworthiness of public institutions and theprocess of democratic consolidation

Testing this hypothesis is trickier than it appears Lustration policies like othertransitional justice measures are politically motivated They are generally enactedby recently elected political parties or new political regimes who then use theirnewfound voice to implement political changes39 Whether politically motivatedlaws become politically manipulated laws ndash laws used by a political party forpersonal advantage rather than to further democratization ndash is at the heart of thelustration controversy The test of political manipulation is if the laws arewielded against political parties for personal gain not whether or not they resultfrom political turnover or whether there are political implications

If a political manipulation hypothesis were to hold true one would see thepersonal advantaging of the party in power who enacted the expanded or renewedlustration policies If these policies resulted from party politics one would expectto see these policies being largely elite-driven benefiting political and economicelites This would be especially true for renewed or expanded lustration whichwould simply perpetuate cycles of political manipulation of the laws andconsume time and resources without actually advancing a reform agenda

This definition of party politics is intentionally narrow in order to avoid thedanger of an unfalsifiable and unverifiable party politics hypothesis Lustrationlaws are political and their impact will be political Teasing out when the lustra-tion laws are expanded in order to gain direct personal political advantage fromwhen the laws are expanded in order to effect political changes with possible indir-ect political implications is admittedly complex However by focusing on directrather than indirect political advantage and differentiating politically motivatedlaws from politically manipulated laws one can explore whether a party politicshypothesis captures the dynamic of late lustration Given that the motivation forthe laws as well as the implementation of the laws is important to the processof creating trustworthy public institutions this difference is critical

A second alternative explanation is that lustration could be an external signalto foreign investors international institutions and actors and other EU memberstates that domestic reform programmes are continuing to move forward Theproblem with focusing on external actors is that this could mean the policiesdonrsquot resonate with domestic-level concerns The legitimacy of the policies restson the extent to which they are considered socially politically and economicallyauthentic by CEE citizens For example in the case of Romania perhaps lustrationwas an attempt to cue international actors such as the European Union that itwas tackling economic and political reform issues specifically its corruptionproblems prior to joining in January 2007 Polandrsquos flagging economic growthrates and rounds of political corruption charges pushed Poland down from its pos-ition as a vanguard of the Visegrad to an economic laggard40 Perhaps late lustra-tion was an attempt to revitalize international investor interest in the Polisheconomy

Democratization 351

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

If the laws were designed for external rather than domestic actors one wouldexpect them to be strongly supported by international actors and domestic affili-ates of international bodies One might expect to see some international rewardfrom the laws either directly tied to the lustration reforms or as an acknowledg-ment of the continued reform efforts Signalling international actors aboutreforms could go hand in hand with changing citizen perceptions of the trust-worthiness of their own public institutions Therefore this explanation couldcomplement the first explanation but not the second

The following sections will take up the cases of Poland and Romania in orderto assess the relative strength of the explanations The cases will try to addressthe question why late lustration What late lustration might mean for democraticconsolidation is taken up in the conclusion

Poland

Background

From the very beginning Poland has had a complicated relationship with itslustration laws Various rounds of failed draft legal proposals several leakedlists of collaborators and cyclical repudiation of lustration and then adoption oflaws sometimes timed with the rise and fall of political parties have all createda morally discordant and logistically haphazard approach to lustration In 1989the first parliamentary motion on lustration was passed and in 1992 the firstlustration attempt was made However it wasnrsquot until 1996 that the Sejm (lowerhouse of parliament) began work on a comprehensive draft law and in August1997 a screening law finally entered into force41 The lustration programme con-centrated on screening rather than vetting people for collaboration with the SłuzbaBezpieczenstwa (SB) or the secret police services so people were not removedfrom positions unless they were shown to have lied on their lustration certificates

The law created a Lustration Court to verify the declarations of top officersand to punish in the event of false statements Some public officials resignedover collaboration allegations but largely there was limited bureaucratic turn-over42 The implementation of the 1997 lustration laws has been criticized asincomplete non-systematic and highly arbitrary exacerbated by the lack of willon the part of the Courts to implement the law43 It was not even possible torecruit the 21 judges required to sit on the Lustration Court thereby effectivelystalling the implementation of the laws for some time

The Institute of National Remembrance (IPN) was created in 1998 andcharged with archive custodial functions as well as responsibilities to assistwith the review of collaboration claims and background reviews of public officeseekers44 However there were still substantial problems with management ofinformation and implementation of the laws Specifically in 2005 a journaliststole an IPN unofficial list of up to 240000 lsquocollaboratorsrsquo nicknamed lsquoWildsteinrsquosListrsquo and posted the information on the Internet The list was not credible proved

352 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and intent First the scope of positions requiring screening has broadened Whereearly lustration programmes focused on political elites and political office holdersin top positions of power late lustration programmes also target lesser positionsSupporting positions in the civil service and even positions of confidence in thepublic sector with links to political offices such as academic positions journalistslawyers school principals the clergy and bureaucratic posts are included in latelustration15 Restricting the private sector employment opportunities availableto former secret service agents or collaborators expands the scope and scale ofretroactive justice beyond ensuring the security of public institutions16 Latelustration is designed to address a larger swathe of society and a different rangeof institutions not simply the political elites

Second there is more transparency and systemization in late lustrationprogrammes than in the original lustration programmes More public access toinformation is built into the programmes with formalized agencies to safeguardand publicize the names of individuals Some of the initial lustration programmeshave been sullied because of the unofficial publicizing of names of lsquocollaboratorsrsquoon the Internet or the instrumental leaking of information about targeted peopleLustration was designed to be a legal process with due process safeguards andrights to appeal When the process takes on an extralegal component or spinsoutside the control of the agencies designed to safeguard the information and theprocess itself lustration starts to look more like the media-hyped lsquowitch huntsrsquothan a transparent rule of law process The new laws aim to redress some of theprevious problems by increasing transparency and mechanisms of accountability

For example Polandrsquos initial lustration programme in 1992 was narrow inscope with limited information access The tight control over information didnot stop the names from being leaked to the press thereby creating a sense thatthe lustration process was a lsquowitch huntrsquo17 The periodic leaking of names tothe press worked to undermine the perception that lustration was done in amanner consistent with rule of law safeguards Keeping information classifiedor away from the public can also undermine transparency and credibility InHungary for example the original lustration law was designed to keep infor-mation from the secret files classified for 30 years18 These failed early attemptsto minimize transparency delegitimized the lustration laws By enacting formaldisclosure procedures to improve public access and information transparencythe late lustration programmes have consciously designed rules to try to safeguardthe implementation and also the legitimacy of the laws

Why choose renewed and expanded late lustration policies at this point in thetransition There are three possible hypotheses I will explore First governmentsare choosing lustration because they think it will promote good governance andfurther the democratic transitions Second political parties are choosing lustrationas a tool against political opposition and challengers Third lustration policies areexternal cues or signals about the political economic and social reforms goingon within the country and are designed for international audiences such as theEuropean Union These hypotheses are not necessarily mutually exclusive

Democratization 347

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The following section both specifies and explains the logic supporting each ofthese hypotheses The case studies of Poland and Romania will then explore thecontent and initial implementation of the laws in order to assess the relativemerits of the explanations

Why late lustration

Promoting democracy symbolic and institutional changes

At its core lustration shares functional and normative features of as well as moraland legal dilemmas associated with other post-authoritarian transitional justicemeasures19 Despite the real moral and legal questions debated with all transitionaljustice measures there remains a strong postulated connection between retroactivejustice measures and democratic transitions20 CEE governments have situatedthemselves within this debate through their lustration policy choices ManyCEE governments claim that they are enacting lustration laws to improve the trust-worthiness of public and certain private institutions as part of their larger efforts topromote democratic consolidation In this framing lustration positively contrib-utes to the process of democratic consolidation both an act of symbolic politicsand a tool of bureaucraticinstitutional change

The Council of Europe affirmed this interpretation in its 1996 resolution OnMeasures to Dismantle the Heritage of Former Communist Totalitarian Systemhighlighting how lsquoold structures and thought patterns have to be dismantled andovercomersquo through lustration and vetting policies21 The United Nations HighCommissioner for Human Rights has highlighted vetting in CEE as an exampleof constructive transitional justice policies in a post-authoritarian context22 Sub-sequent lustration cases heard by the European Court of Human Rights haveupheld this interpretation about the positive relationship between transitionaljustice measures specifically lustration and democratic consolidation in theCEE context23 As such despite the controversy surrounding the use and abuseof lustration in CEE lustration policies remain situated in the larger debateabout transitional justice measures in post-authoritarian environments and theirrelationship to democratic consolidation

Drawing from the transitional justice literature CEE governments might beenacting late lustration programmes to effect procedural and symbolic changesthat have remained either problematic or neglected in their democratic transitionsProcedurally late lustration might improve the trustworthiness of public insti-tutions by prompting more extensive bureaucratic turnover and institutionalchange In CEE there is a strong correlation between current positions of econ-omic and political power and previous positions in the communist regimes24

Many CEE countries have seen former communist elites continue to cycle intonew positions of power with lustration failing to effect the projected institutionalchanges By 2002 63 of current leaders in Romania were also politicalleaders before 198925 OrsquoDwyerrsquos work has examined how large-scale public

348 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

administrative personnel additions can result in little reform and even counterpro-ductive consequences despite direct efforts to improve public institutions26 AsHavelrsquos quote from the beginning suggests despite free elections lsquothe old bureauc-racy persists in all levelsrsquo27

Economically informal networks of former secret police officials continue todominate economic activities In Romania it has been demonstrated that the mostsignificant factor predicting membership in the new business elite was past mem-bership in the communist elite28 In Poland the lsquomajor corruption scandals mixingbusiness and politics have generally involved individuals connected with the com-munist era secret policersquo29 Corruption levels have risen in Poland as economicgrowth has advanced and popular dissatisfaction with public institutions hasgrown with increases in economic inequality30 Polish and Romanian academicshave emphasized how informal understandings and unwritten agreementsbetween current political elites and former elites in positions of economicpower have created widespread perceptions that the transitions were unfair andincomplete31 Governments in the region are being pressed externally and intern-ally to address corruption and inequality of opportunity issues

Symbolically the countries in CEE could also be using lustration policies tosignal a break with the past A symbolic break might be especially important inthe case of negotiated settlements or relatively peaceful regime transitions inwhich a power-sharing agreement between opposition groups and the regime inpower was negotiated32 The peaceful CEE lsquoVelvet Revolutionsrsquo are examplesof negotiated settlements However there is growing debate in CEE aboutwhether the price of peace in negotiated settlements was too high For examplein the Polish case a lsquothick linersquo was drawn between the past and the presentwith no clear bureaucratic reorganization to demarcate the change33 Questionsare arising about whether the concessions made at the Polish Round Table talksmight have overly minimized retroactive justice concerns lsquoMany on the rightnow regard the talks [Round Table] as a corrupt trade-off of power for impunityrsquo34

Therefore an optimal strategy for peace in the short term might have ignored ret-roactive justice concerns perpetuating a sense of continued injustice in the newsystem

According to this argument governments choose expansive lustration late inthe transition in order to effect political economic and social reforms that haveremained problematic What would the late lustration programmes look like tosupport this hypothesis The programmes would be broader in scope than early lus-tration programmes They would target a wider swathe of institutions and positionsthan simply national-level political elites If the problems the government wastrying to tackle were economic social and political in nature the new lawswould consider the competency and integrity of individuals in positions ofpower broadly defined in economic cultural social and political terms Addition-ally if lustration was designed to promote unrealized reforms in public institutionsthe original focus on public positions would be expanded to include supportinginstitutions as well such as quasi-public and in some cases private positions

Democratization 349

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Symbolic changes might require a change in the narrative surrounding latelustration with a focus on morality and renewal that had been less developedin the past Symbolically one might predict that lustration laws to cue off ofpolitically and socially salient issues directly addressing issues related to moralityequity and injustice In essence the expanded laws would aim at both broadbureaucratic and administrative change as well as tap into an important cognitiveor symbolic component to citizensrsquo perceptions of governance and publicinstitutions

Finally if late lustration was designed to effect yet unrealized institutionalreforms the new programmes would specifically correct problems with previouslustration programmes Those problems could be legal or moral If legitimacy andcredibility were problems with previous lustration programmes the new lustrationlaws would directly address these problems by changing accountability mechan-isms improving transparency and designing new oversight agencies in order toguarantee the fair implementation of the laws As such this series of hypotheseswould suggest fundamental changes in the structure intent framing andimplementation of the late lustration laws reflected in changes in scope andaccountability

Alternative hypotheses political manipulation and international signalling

Despite the intentions of the regional governments lsquothe dominant view in the aca-demic literature is that transitional justice is counterproductive because it interfereswith the development of democratic institutions and market economiesrsquo35 Offeprovides an arsenal of highly thought-provoking reasons why vetting lustrationand other forms of transitional justice could undermine trust in public institutionsand the goals of good governance36 The dominant explanation for late lustrationfits within this alternative framing of lustration highlighting how late lustration inparticular is a function of party politics

A narrowly defined party politics explanation would contend that lustrationlaws are politically manipulated by political parties in order to gain politicaladvantage This advantage could take the form of disadvantaging current orformer political opposition undermining the strength of certain candidatespersonally advantaging onersquos own party or bringing in a new younger cadre ofpoliticians not associated with the communist past37 From this perspective thelaws are often described as lsquoweapon[s] for exacting revenge against opponentsrsquo oras means to lsquodemobilize lawful opposition to the present regime or quite simplyas a method to exact personal revengersquo38 If lustration policies are elite-drivenacts of electoral politics these laws could undermine the process of democraticconsolidation If government motivations for lustration are duplicitous or self-serving citizen perceptions of government wonrsquot change and government compe-tencies wonrsquot change Even worse having political parties or politicians engage inblatant acts of political posturing for personal gain could undermine citizen trust inthe very fledgling public institutions that represent them Therefore if this

350 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

hypothesis holds true it would suggest that late lustration might fail to promote orat worst could actively undermine the trustworthiness of public institutions and theprocess of democratic consolidation

Testing this hypothesis is trickier than it appears Lustration policies like othertransitional justice measures are politically motivated They are generally enactedby recently elected political parties or new political regimes who then use theirnewfound voice to implement political changes39 Whether politically motivatedlaws become politically manipulated laws ndash laws used by a political party forpersonal advantage rather than to further democratization ndash is at the heart of thelustration controversy The test of political manipulation is if the laws arewielded against political parties for personal gain not whether or not they resultfrom political turnover or whether there are political implications

If a political manipulation hypothesis were to hold true one would see thepersonal advantaging of the party in power who enacted the expanded or renewedlustration policies If these policies resulted from party politics one would expectto see these policies being largely elite-driven benefiting political and economicelites This would be especially true for renewed or expanded lustration whichwould simply perpetuate cycles of political manipulation of the laws andconsume time and resources without actually advancing a reform agenda

This definition of party politics is intentionally narrow in order to avoid thedanger of an unfalsifiable and unverifiable party politics hypothesis Lustrationlaws are political and their impact will be political Teasing out when the lustra-tion laws are expanded in order to gain direct personal political advantage fromwhen the laws are expanded in order to effect political changes with possible indir-ect political implications is admittedly complex However by focusing on directrather than indirect political advantage and differentiating politically motivatedlaws from politically manipulated laws one can explore whether a party politicshypothesis captures the dynamic of late lustration Given that the motivation forthe laws as well as the implementation of the laws is important to the processof creating trustworthy public institutions this difference is critical

A second alternative explanation is that lustration could be an external signalto foreign investors international institutions and actors and other EU memberstates that domestic reform programmes are continuing to move forward Theproblem with focusing on external actors is that this could mean the policiesdonrsquot resonate with domestic-level concerns The legitimacy of the policies restson the extent to which they are considered socially politically and economicallyauthentic by CEE citizens For example in the case of Romania perhaps lustrationwas an attempt to cue international actors such as the European Union that itwas tackling economic and political reform issues specifically its corruptionproblems prior to joining in January 2007 Polandrsquos flagging economic growthrates and rounds of political corruption charges pushed Poland down from its pos-ition as a vanguard of the Visegrad to an economic laggard40 Perhaps late lustra-tion was an attempt to revitalize international investor interest in the Polisheconomy

Democratization 351

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

If the laws were designed for external rather than domestic actors one wouldexpect them to be strongly supported by international actors and domestic affili-ates of international bodies One might expect to see some international rewardfrom the laws either directly tied to the lustration reforms or as an acknowledg-ment of the continued reform efforts Signalling international actors aboutreforms could go hand in hand with changing citizen perceptions of the trust-worthiness of their own public institutions Therefore this explanation couldcomplement the first explanation but not the second

The following sections will take up the cases of Poland and Romania in orderto assess the relative strength of the explanations The cases will try to addressthe question why late lustration What late lustration might mean for democraticconsolidation is taken up in the conclusion

Poland

Background

From the very beginning Poland has had a complicated relationship with itslustration laws Various rounds of failed draft legal proposals several leakedlists of collaborators and cyclical repudiation of lustration and then adoption oflaws sometimes timed with the rise and fall of political parties have all createda morally discordant and logistically haphazard approach to lustration In 1989the first parliamentary motion on lustration was passed and in 1992 the firstlustration attempt was made However it wasnrsquot until 1996 that the Sejm (lowerhouse of parliament) began work on a comprehensive draft law and in August1997 a screening law finally entered into force41 The lustration programme con-centrated on screening rather than vetting people for collaboration with the SłuzbaBezpieczenstwa (SB) or the secret police services so people were not removedfrom positions unless they were shown to have lied on their lustration certificates

The law created a Lustration Court to verify the declarations of top officersand to punish in the event of false statements Some public officials resignedover collaboration allegations but largely there was limited bureaucratic turn-over42 The implementation of the 1997 lustration laws has been criticized asincomplete non-systematic and highly arbitrary exacerbated by the lack of willon the part of the Courts to implement the law43 It was not even possible torecruit the 21 judges required to sit on the Lustration Court thereby effectivelystalling the implementation of the laws for some time

The Institute of National Remembrance (IPN) was created in 1998 andcharged with archive custodial functions as well as responsibilities to assistwith the review of collaboration claims and background reviews of public officeseekers44 However there were still substantial problems with management ofinformation and implementation of the laws Specifically in 2005 a journaliststole an IPN unofficial list of up to 240000 lsquocollaboratorsrsquo nicknamed lsquoWildsteinrsquosListrsquo and posted the information on the Internet The list was not credible proved

352 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The following section both specifies and explains the logic supporting each ofthese hypotheses The case studies of Poland and Romania will then explore thecontent and initial implementation of the laws in order to assess the relativemerits of the explanations

Why late lustration

Promoting democracy symbolic and institutional changes

At its core lustration shares functional and normative features of as well as moraland legal dilemmas associated with other post-authoritarian transitional justicemeasures19 Despite the real moral and legal questions debated with all transitionaljustice measures there remains a strong postulated connection between retroactivejustice measures and democratic transitions20 CEE governments have situatedthemselves within this debate through their lustration policy choices ManyCEE governments claim that they are enacting lustration laws to improve the trust-worthiness of public and certain private institutions as part of their larger efforts topromote democratic consolidation In this framing lustration positively contrib-utes to the process of democratic consolidation both an act of symbolic politicsand a tool of bureaucraticinstitutional change

The Council of Europe affirmed this interpretation in its 1996 resolution OnMeasures to Dismantle the Heritage of Former Communist Totalitarian Systemhighlighting how lsquoold structures and thought patterns have to be dismantled andovercomersquo through lustration and vetting policies21 The United Nations HighCommissioner for Human Rights has highlighted vetting in CEE as an exampleof constructive transitional justice policies in a post-authoritarian context22 Sub-sequent lustration cases heard by the European Court of Human Rights haveupheld this interpretation about the positive relationship between transitionaljustice measures specifically lustration and democratic consolidation in theCEE context23 As such despite the controversy surrounding the use and abuseof lustration in CEE lustration policies remain situated in the larger debateabout transitional justice measures in post-authoritarian environments and theirrelationship to democratic consolidation

Drawing from the transitional justice literature CEE governments might beenacting late lustration programmes to effect procedural and symbolic changesthat have remained either problematic or neglected in their democratic transitionsProcedurally late lustration might improve the trustworthiness of public insti-tutions by prompting more extensive bureaucratic turnover and institutionalchange In CEE there is a strong correlation between current positions of econ-omic and political power and previous positions in the communist regimes24

Many CEE countries have seen former communist elites continue to cycle intonew positions of power with lustration failing to effect the projected institutionalchanges By 2002 63 of current leaders in Romania were also politicalleaders before 198925 OrsquoDwyerrsquos work has examined how large-scale public

348 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

administrative personnel additions can result in little reform and even counterpro-ductive consequences despite direct efforts to improve public institutions26 AsHavelrsquos quote from the beginning suggests despite free elections lsquothe old bureauc-racy persists in all levelsrsquo27

Economically informal networks of former secret police officials continue todominate economic activities In Romania it has been demonstrated that the mostsignificant factor predicting membership in the new business elite was past mem-bership in the communist elite28 In Poland the lsquomajor corruption scandals mixingbusiness and politics have generally involved individuals connected with the com-munist era secret policersquo29 Corruption levels have risen in Poland as economicgrowth has advanced and popular dissatisfaction with public institutions hasgrown with increases in economic inequality30 Polish and Romanian academicshave emphasized how informal understandings and unwritten agreementsbetween current political elites and former elites in positions of economicpower have created widespread perceptions that the transitions were unfair andincomplete31 Governments in the region are being pressed externally and intern-ally to address corruption and inequality of opportunity issues

Symbolically the countries in CEE could also be using lustration policies tosignal a break with the past A symbolic break might be especially important inthe case of negotiated settlements or relatively peaceful regime transitions inwhich a power-sharing agreement between opposition groups and the regime inpower was negotiated32 The peaceful CEE lsquoVelvet Revolutionsrsquo are examplesof negotiated settlements However there is growing debate in CEE aboutwhether the price of peace in negotiated settlements was too high For examplein the Polish case a lsquothick linersquo was drawn between the past and the presentwith no clear bureaucratic reorganization to demarcate the change33 Questionsare arising about whether the concessions made at the Polish Round Table talksmight have overly minimized retroactive justice concerns lsquoMany on the rightnow regard the talks [Round Table] as a corrupt trade-off of power for impunityrsquo34

Therefore an optimal strategy for peace in the short term might have ignored ret-roactive justice concerns perpetuating a sense of continued injustice in the newsystem

According to this argument governments choose expansive lustration late inthe transition in order to effect political economic and social reforms that haveremained problematic What would the late lustration programmes look like tosupport this hypothesis The programmes would be broader in scope than early lus-tration programmes They would target a wider swathe of institutions and positionsthan simply national-level political elites If the problems the government wastrying to tackle were economic social and political in nature the new lawswould consider the competency and integrity of individuals in positions ofpower broadly defined in economic cultural social and political terms Addition-ally if lustration was designed to promote unrealized reforms in public institutionsthe original focus on public positions would be expanded to include supportinginstitutions as well such as quasi-public and in some cases private positions

Democratization 349

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Symbolic changes might require a change in the narrative surrounding latelustration with a focus on morality and renewal that had been less developedin the past Symbolically one might predict that lustration laws to cue off ofpolitically and socially salient issues directly addressing issues related to moralityequity and injustice In essence the expanded laws would aim at both broadbureaucratic and administrative change as well as tap into an important cognitiveor symbolic component to citizensrsquo perceptions of governance and publicinstitutions

Finally if late lustration was designed to effect yet unrealized institutionalreforms the new programmes would specifically correct problems with previouslustration programmes Those problems could be legal or moral If legitimacy andcredibility were problems with previous lustration programmes the new lustrationlaws would directly address these problems by changing accountability mechan-isms improving transparency and designing new oversight agencies in order toguarantee the fair implementation of the laws As such this series of hypotheseswould suggest fundamental changes in the structure intent framing andimplementation of the late lustration laws reflected in changes in scope andaccountability

Alternative hypotheses political manipulation and international signalling

Despite the intentions of the regional governments lsquothe dominant view in the aca-demic literature is that transitional justice is counterproductive because it interfereswith the development of democratic institutions and market economiesrsquo35 Offeprovides an arsenal of highly thought-provoking reasons why vetting lustrationand other forms of transitional justice could undermine trust in public institutionsand the goals of good governance36 The dominant explanation for late lustrationfits within this alternative framing of lustration highlighting how late lustration inparticular is a function of party politics

A narrowly defined party politics explanation would contend that lustrationlaws are politically manipulated by political parties in order to gain politicaladvantage This advantage could take the form of disadvantaging current orformer political opposition undermining the strength of certain candidatespersonally advantaging onersquos own party or bringing in a new younger cadre ofpoliticians not associated with the communist past37 From this perspective thelaws are often described as lsquoweapon[s] for exacting revenge against opponentsrsquo oras means to lsquodemobilize lawful opposition to the present regime or quite simplyas a method to exact personal revengersquo38 If lustration policies are elite-drivenacts of electoral politics these laws could undermine the process of democraticconsolidation If government motivations for lustration are duplicitous or self-serving citizen perceptions of government wonrsquot change and government compe-tencies wonrsquot change Even worse having political parties or politicians engage inblatant acts of political posturing for personal gain could undermine citizen trust inthe very fledgling public institutions that represent them Therefore if this

350 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

hypothesis holds true it would suggest that late lustration might fail to promote orat worst could actively undermine the trustworthiness of public institutions and theprocess of democratic consolidation

Testing this hypothesis is trickier than it appears Lustration policies like othertransitional justice measures are politically motivated They are generally enactedby recently elected political parties or new political regimes who then use theirnewfound voice to implement political changes39 Whether politically motivatedlaws become politically manipulated laws ndash laws used by a political party forpersonal advantage rather than to further democratization ndash is at the heart of thelustration controversy The test of political manipulation is if the laws arewielded against political parties for personal gain not whether or not they resultfrom political turnover or whether there are political implications

If a political manipulation hypothesis were to hold true one would see thepersonal advantaging of the party in power who enacted the expanded or renewedlustration policies If these policies resulted from party politics one would expectto see these policies being largely elite-driven benefiting political and economicelites This would be especially true for renewed or expanded lustration whichwould simply perpetuate cycles of political manipulation of the laws andconsume time and resources without actually advancing a reform agenda

This definition of party politics is intentionally narrow in order to avoid thedanger of an unfalsifiable and unverifiable party politics hypothesis Lustrationlaws are political and their impact will be political Teasing out when the lustra-tion laws are expanded in order to gain direct personal political advantage fromwhen the laws are expanded in order to effect political changes with possible indir-ect political implications is admittedly complex However by focusing on directrather than indirect political advantage and differentiating politically motivatedlaws from politically manipulated laws one can explore whether a party politicshypothesis captures the dynamic of late lustration Given that the motivation forthe laws as well as the implementation of the laws is important to the processof creating trustworthy public institutions this difference is critical

A second alternative explanation is that lustration could be an external signalto foreign investors international institutions and actors and other EU memberstates that domestic reform programmes are continuing to move forward Theproblem with focusing on external actors is that this could mean the policiesdonrsquot resonate with domestic-level concerns The legitimacy of the policies restson the extent to which they are considered socially politically and economicallyauthentic by CEE citizens For example in the case of Romania perhaps lustrationwas an attempt to cue international actors such as the European Union that itwas tackling economic and political reform issues specifically its corruptionproblems prior to joining in January 2007 Polandrsquos flagging economic growthrates and rounds of political corruption charges pushed Poland down from its pos-ition as a vanguard of the Visegrad to an economic laggard40 Perhaps late lustra-tion was an attempt to revitalize international investor interest in the Polisheconomy

Democratization 351

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

If the laws were designed for external rather than domestic actors one wouldexpect them to be strongly supported by international actors and domestic affili-ates of international bodies One might expect to see some international rewardfrom the laws either directly tied to the lustration reforms or as an acknowledg-ment of the continued reform efforts Signalling international actors aboutreforms could go hand in hand with changing citizen perceptions of the trust-worthiness of their own public institutions Therefore this explanation couldcomplement the first explanation but not the second

The following sections will take up the cases of Poland and Romania in orderto assess the relative strength of the explanations The cases will try to addressthe question why late lustration What late lustration might mean for democraticconsolidation is taken up in the conclusion

Poland

Background

From the very beginning Poland has had a complicated relationship with itslustration laws Various rounds of failed draft legal proposals several leakedlists of collaborators and cyclical repudiation of lustration and then adoption oflaws sometimes timed with the rise and fall of political parties have all createda morally discordant and logistically haphazard approach to lustration In 1989the first parliamentary motion on lustration was passed and in 1992 the firstlustration attempt was made However it wasnrsquot until 1996 that the Sejm (lowerhouse of parliament) began work on a comprehensive draft law and in August1997 a screening law finally entered into force41 The lustration programme con-centrated on screening rather than vetting people for collaboration with the SłuzbaBezpieczenstwa (SB) or the secret police services so people were not removedfrom positions unless they were shown to have lied on their lustration certificates

The law created a Lustration Court to verify the declarations of top officersand to punish in the event of false statements Some public officials resignedover collaboration allegations but largely there was limited bureaucratic turn-over42 The implementation of the 1997 lustration laws has been criticized asincomplete non-systematic and highly arbitrary exacerbated by the lack of willon the part of the Courts to implement the law43 It was not even possible torecruit the 21 judges required to sit on the Lustration Court thereby effectivelystalling the implementation of the laws for some time

The Institute of National Remembrance (IPN) was created in 1998 andcharged with archive custodial functions as well as responsibilities to assistwith the review of collaboration claims and background reviews of public officeseekers44 However there were still substantial problems with management ofinformation and implementation of the laws Specifically in 2005 a journaliststole an IPN unofficial list of up to 240000 lsquocollaboratorsrsquo nicknamed lsquoWildsteinrsquosListrsquo and posted the information on the Internet The list was not credible proved

352 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

administrative personnel additions can result in little reform and even counterpro-ductive consequences despite direct efforts to improve public institutions26 AsHavelrsquos quote from the beginning suggests despite free elections lsquothe old bureauc-racy persists in all levelsrsquo27

Economically informal networks of former secret police officials continue todominate economic activities In Romania it has been demonstrated that the mostsignificant factor predicting membership in the new business elite was past mem-bership in the communist elite28 In Poland the lsquomajor corruption scandals mixingbusiness and politics have generally involved individuals connected with the com-munist era secret policersquo29 Corruption levels have risen in Poland as economicgrowth has advanced and popular dissatisfaction with public institutions hasgrown with increases in economic inequality30 Polish and Romanian academicshave emphasized how informal understandings and unwritten agreementsbetween current political elites and former elites in positions of economicpower have created widespread perceptions that the transitions were unfair andincomplete31 Governments in the region are being pressed externally and intern-ally to address corruption and inequality of opportunity issues

Symbolically the countries in CEE could also be using lustration policies tosignal a break with the past A symbolic break might be especially important inthe case of negotiated settlements or relatively peaceful regime transitions inwhich a power-sharing agreement between opposition groups and the regime inpower was negotiated32 The peaceful CEE lsquoVelvet Revolutionsrsquo are examplesof negotiated settlements However there is growing debate in CEE aboutwhether the price of peace in negotiated settlements was too high For examplein the Polish case a lsquothick linersquo was drawn between the past and the presentwith no clear bureaucratic reorganization to demarcate the change33 Questionsare arising about whether the concessions made at the Polish Round Table talksmight have overly minimized retroactive justice concerns lsquoMany on the rightnow regard the talks [Round Table] as a corrupt trade-off of power for impunityrsquo34

Therefore an optimal strategy for peace in the short term might have ignored ret-roactive justice concerns perpetuating a sense of continued injustice in the newsystem

According to this argument governments choose expansive lustration late inthe transition in order to effect political economic and social reforms that haveremained problematic What would the late lustration programmes look like tosupport this hypothesis The programmes would be broader in scope than early lus-tration programmes They would target a wider swathe of institutions and positionsthan simply national-level political elites If the problems the government wastrying to tackle were economic social and political in nature the new lawswould consider the competency and integrity of individuals in positions ofpower broadly defined in economic cultural social and political terms Addition-ally if lustration was designed to promote unrealized reforms in public institutionsthe original focus on public positions would be expanded to include supportinginstitutions as well such as quasi-public and in some cases private positions

Democratization 349

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Symbolic changes might require a change in the narrative surrounding latelustration with a focus on morality and renewal that had been less developedin the past Symbolically one might predict that lustration laws to cue off ofpolitically and socially salient issues directly addressing issues related to moralityequity and injustice In essence the expanded laws would aim at both broadbureaucratic and administrative change as well as tap into an important cognitiveor symbolic component to citizensrsquo perceptions of governance and publicinstitutions

Finally if late lustration was designed to effect yet unrealized institutionalreforms the new programmes would specifically correct problems with previouslustration programmes Those problems could be legal or moral If legitimacy andcredibility were problems with previous lustration programmes the new lustrationlaws would directly address these problems by changing accountability mechan-isms improving transparency and designing new oversight agencies in order toguarantee the fair implementation of the laws As such this series of hypotheseswould suggest fundamental changes in the structure intent framing andimplementation of the late lustration laws reflected in changes in scope andaccountability

Alternative hypotheses political manipulation and international signalling

Despite the intentions of the regional governments lsquothe dominant view in the aca-demic literature is that transitional justice is counterproductive because it interfereswith the development of democratic institutions and market economiesrsquo35 Offeprovides an arsenal of highly thought-provoking reasons why vetting lustrationand other forms of transitional justice could undermine trust in public institutionsand the goals of good governance36 The dominant explanation for late lustrationfits within this alternative framing of lustration highlighting how late lustration inparticular is a function of party politics

A narrowly defined party politics explanation would contend that lustrationlaws are politically manipulated by political parties in order to gain politicaladvantage This advantage could take the form of disadvantaging current orformer political opposition undermining the strength of certain candidatespersonally advantaging onersquos own party or bringing in a new younger cadre ofpoliticians not associated with the communist past37 From this perspective thelaws are often described as lsquoweapon[s] for exacting revenge against opponentsrsquo oras means to lsquodemobilize lawful opposition to the present regime or quite simplyas a method to exact personal revengersquo38 If lustration policies are elite-drivenacts of electoral politics these laws could undermine the process of democraticconsolidation If government motivations for lustration are duplicitous or self-serving citizen perceptions of government wonrsquot change and government compe-tencies wonrsquot change Even worse having political parties or politicians engage inblatant acts of political posturing for personal gain could undermine citizen trust inthe very fledgling public institutions that represent them Therefore if this

350 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

hypothesis holds true it would suggest that late lustration might fail to promote orat worst could actively undermine the trustworthiness of public institutions and theprocess of democratic consolidation

Testing this hypothesis is trickier than it appears Lustration policies like othertransitional justice measures are politically motivated They are generally enactedby recently elected political parties or new political regimes who then use theirnewfound voice to implement political changes39 Whether politically motivatedlaws become politically manipulated laws ndash laws used by a political party forpersonal advantage rather than to further democratization ndash is at the heart of thelustration controversy The test of political manipulation is if the laws arewielded against political parties for personal gain not whether or not they resultfrom political turnover or whether there are political implications

If a political manipulation hypothesis were to hold true one would see thepersonal advantaging of the party in power who enacted the expanded or renewedlustration policies If these policies resulted from party politics one would expectto see these policies being largely elite-driven benefiting political and economicelites This would be especially true for renewed or expanded lustration whichwould simply perpetuate cycles of political manipulation of the laws andconsume time and resources without actually advancing a reform agenda

This definition of party politics is intentionally narrow in order to avoid thedanger of an unfalsifiable and unverifiable party politics hypothesis Lustrationlaws are political and their impact will be political Teasing out when the lustra-tion laws are expanded in order to gain direct personal political advantage fromwhen the laws are expanded in order to effect political changes with possible indir-ect political implications is admittedly complex However by focusing on directrather than indirect political advantage and differentiating politically motivatedlaws from politically manipulated laws one can explore whether a party politicshypothesis captures the dynamic of late lustration Given that the motivation forthe laws as well as the implementation of the laws is important to the processof creating trustworthy public institutions this difference is critical

A second alternative explanation is that lustration could be an external signalto foreign investors international institutions and actors and other EU memberstates that domestic reform programmes are continuing to move forward Theproblem with focusing on external actors is that this could mean the policiesdonrsquot resonate with domestic-level concerns The legitimacy of the policies restson the extent to which they are considered socially politically and economicallyauthentic by CEE citizens For example in the case of Romania perhaps lustrationwas an attempt to cue international actors such as the European Union that itwas tackling economic and political reform issues specifically its corruptionproblems prior to joining in January 2007 Polandrsquos flagging economic growthrates and rounds of political corruption charges pushed Poland down from its pos-ition as a vanguard of the Visegrad to an economic laggard40 Perhaps late lustra-tion was an attempt to revitalize international investor interest in the Polisheconomy

Democratization 351

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

If the laws were designed for external rather than domestic actors one wouldexpect them to be strongly supported by international actors and domestic affili-ates of international bodies One might expect to see some international rewardfrom the laws either directly tied to the lustration reforms or as an acknowledg-ment of the continued reform efforts Signalling international actors aboutreforms could go hand in hand with changing citizen perceptions of the trust-worthiness of their own public institutions Therefore this explanation couldcomplement the first explanation but not the second

The following sections will take up the cases of Poland and Romania in orderto assess the relative strength of the explanations The cases will try to addressthe question why late lustration What late lustration might mean for democraticconsolidation is taken up in the conclusion

Poland

Background

From the very beginning Poland has had a complicated relationship with itslustration laws Various rounds of failed draft legal proposals several leakedlists of collaborators and cyclical repudiation of lustration and then adoption oflaws sometimes timed with the rise and fall of political parties have all createda morally discordant and logistically haphazard approach to lustration In 1989the first parliamentary motion on lustration was passed and in 1992 the firstlustration attempt was made However it wasnrsquot until 1996 that the Sejm (lowerhouse of parliament) began work on a comprehensive draft law and in August1997 a screening law finally entered into force41 The lustration programme con-centrated on screening rather than vetting people for collaboration with the SłuzbaBezpieczenstwa (SB) or the secret police services so people were not removedfrom positions unless they were shown to have lied on their lustration certificates

The law created a Lustration Court to verify the declarations of top officersand to punish in the event of false statements Some public officials resignedover collaboration allegations but largely there was limited bureaucratic turn-over42 The implementation of the 1997 lustration laws has been criticized asincomplete non-systematic and highly arbitrary exacerbated by the lack of willon the part of the Courts to implement the law43 It was not even possible torecruit the 21 judges required to sit on the Lustration Court thereby effectivelystalling the implementation of the laws for some time

The Institute of National Remembrance (IPN) was created in 1998 andcharged with archive custodial functions as well as responsibilities to assistwith the review of collaboration claims and background reviews of public officeseekers44 However there were still substantial problems with management ofinformation and implementation of the laws Specifically in 2005 a journaliststole an IPN unofficial list of up to 240000 lsquocollaboratorsrsquo nicknamed lsquoWildsteinrsquosListrsquo and posted the information on the Internet The list was not credible proved

352 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Symbolic changes might require a change in the narrative surrounding latelustration with a focus on morality and renewal that had been less developedin the past Symbolically one might predict that lustration laws to cue off ofpolitically and socially salient issues directly addressing issues related to moralityequity and injustice In essence the expanded laws would aim at both broadbureaucratic and administrative change as well as tap into an important cognitiveor symbolic component to citizensrsquo perceptions of governance and publicinstitutions

Finally if late lustration was designed to effect yet unrealized institutionalreforms the new programmes would specifically correct problems with previouslustration programmes Those problems could be legal or moral If legitimacy andcredibility were problems with previous lustration programmes the new lustrationlaws would directly address these problems by changing accountability mechan-isms improving transparency and designing new oversight agencies in order toguarantee the fair implementation of the laws As such this series of hypotheseswould suggest fundamental changes in the structure intent framing andimplementation of the late lustration laws reflected in changes in scope andaccountability

Alternative hypotheses political manipulation and international signalling

Despite the intentions of the regional governments lsquothe dominant view in the aca-demic literature is that transitional justice is counterproductive because it interfereswith the development of democratic institutions and market economiesrsquo35 Offeprovides an arsenal of highly thought-provoking reasons why vetting lustrationand other forms of transitional justice could undermine trust in public institutionsand the goals of good governance36 The dominant explanation for late lustrationfits within this alternative framing of lustration highlighting how late lustration inparticular is a function of party politics

A narrowly defined party politics explanation would contend that lustrationlaws are politically manipulated by political parties in order to gain politicaladvantage This advantage could take the form of disadvantaging current orformer political opposition undermining the strength of certain candidatespersonally advantaging onersquos own party or bringing in a new younger cadre ofpoliticians not associated with the communist past37 From this perspective thelaws are often described as lsquoweapon[s] for exacting revenge against opponentsrsquo oras means to lsquodemobilize lawful opposition to the present regime or quite simplyas a method to exact personal revengersquo38 If lustration policies are elite-drivenacts of electoral politics these laws could undermine the process of democraticconsolidation If government motivations for lustration are duplicitous or self-serving citizen perceptions of government wonrsquot change and government compe-tencies wonrsquot change Even worse having political parties or politicians engage inblatant acts of political posturing for personal gain could undermine citizen trust inthe very fledgling public institutions that represent them Therefore if this

350 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

hypothesis holds true it would suggest that late lustration might fail to promote orat worst could actively undermine the trustworthiness of public institutions and theprocess of democratic consolidation

Testing this hypothesis is trickier than it appears Lustration policies like othertransitional justice measures are politically motivated They are generally enactedby recently elected political parties or new political regimes who then use theirnewfound voice to implement political changes39 Whether politically motivatedlaws become politically manipulated laws ndash laws used by a political party forpersonal advantage rather than to further democratization ndash is at the heart of thelustration controversy The test of political manipulation is if the laws arewielded against political parties for personal gain not whether or not they resultfrom political turnover or whether there are political implications

If a political manipulation hypothesis were to hold true one would see thepersonal advantaging of the party in power who enacted the expanded or renewedlustration policies If these policies resulted from party politics one would expectto see these policies being largely elite-driven benefiting political and economicelites This would be especially true for renewed or expanded lustration whichwould simply perpetuate cycles of political manipulation of the laws andconsume time and resources without actually advancing a reform agenda

This definition of party politics is intentionally narrow in order to avoid thedanger of an unfalsifiable and unverifiable party politics hypothesis Lustrationlaws are political and their impact will be political Teasing out when the lustra-tion laws are expanded in order to gain direct personal political advantage fromwhen the laws are expanded in order to effect political changes with possible indir-ect political implications is admittedly complex However by focusing on directrather than indirect political advantage and differentiating politically motivatedlaws from politically manipulated laws one can explore whether a party politicshypothesis captures the dynamic of late lustration Given that the motivation forthe laws as well as the implementation of the laws is important to the processof creating trustworthy public institutions this difference is critical

A second alternative explanation is that lustration could be an external signalto foreign investors international institutions and actors and other EU memberstates that domestic reform programmes are continuing to move forward Theproblem with focusing on external actors is that this could mean the policiesdonrsquot resonate with domestic-level concerns The legitimacy of the policies restson the extent to which they are considered socially politically and economicallyauthentic by CEE citizens For example in the case of Romania perhaps lustrationwas an attempt to cue international actors such as the European Union that itwas tackling economic and political reform issues specifically its corruptionproblems prior to joining in January 2007 Polandrsquos flagging economic growthrates and rounds of political corruption charges pushed Poland down from its pos-ition as a vanguard of the Visegrad to an economic laggard40 Perhaps late lustra-tion was an attempt to revitalize international investor interest in the Polisheconomy

Democratization 351

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

If the laws were designed for external rather than domestic actors one wouldexpect them to be strongly supported by international actors and domestic affili-ates of international bodies One might expect to see some international rewardfrom the laws either directly tied to the lustration reforms or as an acknowledg-ment of the continued reform efforts Signalling international actors aboutreforms could go hand in hand with changing citizen perceptions of the trust-worthiness of their own public institutions Therefore this explanation couldcomplement the first explanation but not the second

The following sections will take up the cases of Poland and Romania in orderto assess the relative strength of the explanations The cases will try to addressthe question why late lustration What late lustration might mean for democraticconsolidation is taken up in the conclusion

Poland

Background

From the very beginning Poland has had a complicated relationship with itslustration laws Various rounds of failed draft legal proposals several leakedlists of collaborators and cyclical repudiation of lustration and then adoption oflaws sometimes timed with the rise and fall of political parties have all createda morally discordant and logistically haphazard approach to lustration In 1989the first parliamentary motion on lustration was passed and in 1992 the firstlustration attempt was made However it wasnrsquot until 1996 that the Sejm (lowerhouse of parliament) began work on a comprehensive draft law and in August1997 a screening law finally entered into force41 The lustration programme con-centrated on screening rather than vetting people for collaboration with the SłuzbaBezpieczenstwa (SB) or the secret police services so people were not removedfrom positions unless they were shown to have lied on their lustration certificates

The law created a Lustration Court to verify the declarations of top officersand to punish in the event of false statements Some public officials resignedover collaboration allegations but largely there was limited bureaucratic turn-over42 The implementation of the 1997 lustration laws has been criticized asincomplete non-systematic and highly arbitrary exacerbated by the lack of willon the part of the Courts to implement the law43 It was not even possible torecruit the 21 judges required to sit on the Lustration Court thereby effectivelystalling the implementation of the laws for some time

The Institute of National Remembrance (IPN) was created in 1998 andcharged with archive custodial functions as well as responsibilities to assistwith the review of collaboration claims and background reviews of public officeseekers44 However there were still substantial problems with management ofinformation and implementation of the laws Specifically in 2005 a journaliststole an IPN unofficial list of up to 240000 lsquocollaboratorsrsquo nicknamed lsquoWildsteinrsquosListrsquo and posted the information on the Internet The list was not credible proved

352 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

hypothesis holds true it would suggest that late lustration might fail to promote orat worst could actively undermine the trustworthiness of public institutions and theprocess of democratic consolidation

Testing this hypothesis is trickier than it appears Lustration policies like othertransitional justice measures are politically motivated They are generally enactedby recently elected political parties or new political regimes who then use theirnewfound voice to implement political changes39 Whether politically motivatedlaws become politically manipulated laws ndash laws used by a political party forpersonal advantage rather than to further democratization ndash is at the heart of thelustration controversy The test of political manipulation is if the laws arewielded against political parties for personal gain not whether or not they resultfrom political turnover or whether there are political implications

If a political manipulation hypothesis were to hold true one would see thepersonal advantaging of the party in power who enacted the expanded or renewedlustration policies If these policies resulted from party politics one would expectto see these policies being largely elite-driven benefiting political and economicelites This would be especially true for renewed or expanded lustration whichwould simply perpetuate cycles of political manipulation of the laws andconsume time and resources without actually advancing a reform agenda

This definition of party politics is intentionally narrow in order to avoid thedanger of an unfalsifiable and unverifiable party politics hypothesis Lustrationlaws are political and their impact will be political Teasing out when the lustra-tion laws are expanded in order to gain direct personal political advantage fromwhen the laws are expanded in order to effect political changes with possible indir-ect political implications is admittedly complex However by focusing on directrather than indirect political advantage and differentiating politically motivatedlaws from politically manipulated laws one can explore whether a party politicshypothesis captures the dynamic of late lustration Given that the motivation forthe laws as well as the implementation of the laws is important to the processof creating trustworthy public institutions this difference is critical

A second alternative explanation is that lustration could be an external signalto foreign investors international institutions and actors and other EU memberstates that domestic reform programmes are continuing to move forward Theproblem with focusing on external actors is that this could mean the policiesdonrsquot resonate with domestic-level concerns The legitimacy of the policies restson the extent to which they are considered socially politically and economicallyauthentic by CEE citizens For example in the case of Romania perhaps lustrationwas an attempt to cue international actors such as the European Union that itwas tackling economic and political reform issues specifically its corruptionproblems prior to joining in January 2007 Polandrsquos flagging economic growthrates and rounds of political corruption charges pushed Poland down from its pos-ition as a vanguard of the Visegrad to an economic laggard40 Perhaps late lustra-tion was an attempt to revitalize international investor interest in the Polisheconomy

Democratization 351

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

If the laws were designed for external rather than domestic actors one wouldexpect them to be strongly supported by international actors and domestic affili-ates of international bodies One might expect to see some international rewardfrom the laws either directly tied to the lustration reforms or as an acknowledg-ment of the continued reform efforts Signalling international actors aboutreforms could go hand in hand with changing citizen perceptions of the trust-worthiness of their own public institutions Therefore this explanation couldcomplement the first explanation but not the second

The following sections will take up the cases of Poland and Romania in orderto assess the relative strength of the explanations The cases will try to addressthe question why late lustration What late lustration might mean for democraticconsolidation is taken up in the conclusion

Poland

Background

From the very beginning Poland has had a complicated relationship with itslustration laws Various rounds of failed draft legal proposals several leakedlists of collaborators and cyclical repudiation of lustration and then adoption oflaws sometimes timed with the rise and fall of political parties have all createda morally discordant and logistically haphazard approach to lustration In 1989the first parliamentary motion on lustration was passed and in 1992 the firstlustration attempt was made However it wasnrsquot until 1996 that the Sejm (lowerhouse of parliament) began work on a comprehensive draft law and in August1997 a screening law finally entered into force41 The lustration programme con-centrated on screening rather than vetting people for collaboration with the SłuzbaBezpieczenstwa (SB) or the secret police services so people were not removedfrom positions unless they were shown to have lied on their lustration certificates

The law created a Lustration Court to verify the declarations of top officersand to punish in the event of false statements Some public officials resignedover collaboration allegations but largely there was limited bureaucratic turn-over42 The implementation of the 1997 lustration laws has been criticized asincomplete non-systematic and highly arbitrary exacerbated by the lack of willon the part of the Courts to implement the law43 It was not even possible torecruit the 21 judges required to sit on the Lustration Court thereby effectivelystalling the implementation of the laws for some time

The Institute of National Remembrance (IPN) was created in 1998 andcharged with archive custodial functions as well as responsibilities to assistwith the review of collaboration claims and background reviews of public officeseekers44 However there were still substantial problems with management ofinformation and implementation of the laws Specifically in 2005 a journaliststole an IPN unofficial list of up to 240000 lsquocollaboratorsrsquo nicknamed lsquoWildsteinrsquosListrsquo and posted the information on the Internet The list was not credible proved

352 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

If the laws were designed for external rather than domestic actors one wouldexpect them to be strongly supported by international actors and domestic affili-ates of international bodies One might expect to see some international rewardfrom the laws either directly tied to the lustration reforms or as an acknowledg-ment of the continued reform efforts Signalling international actors aboutreforms could go hand in hand with changing citizen perceptions of the trust-worthiness of their own public institutions Therefore this explanation couldcomplement the first explanation but not the second

The following sections will take up the cases of Poland and Romania in orderto assess the relative strength of the explanations The cases will try to addressthe question why late lustration What late lustration might mean for democraticconsolidation is taken up in the conclusion

Poland

Background

From the very beginning Poland has had a complicated relationship with itslustration laws Various rounds of failed draft legal proposals several leakedlists of collaborators and cyclical repudiation of lustration and then adoption oflaws sometimes timed with the rise and fall of political parties have all createda morally discordant and logistically haphazard approach to lustration In 1989the first parliamentary motion on lustration was passed and in 1992 the firstlustration attempt was made However it wasnrsquot until 1996 that the Sejm (lowerhouse of parliament) began work on a comprehensive draft law and in August1997 a screening law finally entered into force41 The lustration programme con-centrated on screening rather than vetting people for collaboration with the SłuzbaBezpieczenstwa (SB) or the secret police services so people were not removedfrom positions unless they were shown to have lied on their lustration certificates

The law created a Lustration Court to verify the declarations of top officersand to punish in the event of false statements Some public officials resignedover collaboration allegations but largely there was limited bureaucratic turn-over42 The implementation of the 1997 lustration laws has been criticized asincomplete non-systematic and highly arbitrary exacerbated by the lack of willon the part of the Courts to implement the law43 It was not even possible torecruit the 21 judges required to sit on the Lustration Court thereby effectivelystalling the implementation of the laws for some time

The Institute of National Remembrance (IPN) was created in 1998 andcharged with archive custodial functions as well as responsibilities to assistwith the review of collaboration claims and background reviews of public officeseekers44 However there were still substantial problems with management ofinformation and implementation of the laws Specifically in 2005 a journaliststole an IPN unofficial list of up to 240000 lsquocollaboratorsrsquo nicknamed lsquoWildsteinrsquosListrsquo and posted the information on the Internet The list was not credible proved

352 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

highly inflammatory and was timed to coincide with the 2005 round of elec-tions45 At this point the original truth telling nature of the programme hadbecome sullied by electoral politics When Lech Kaczynski decided to makelsquobuilding a new moral orderrsquo Law and Justice Partyrsquos platform in 2005 the unpre-dictable and at times arbitrary nature of the previous lustration programmes hadundermined the credibility of the laws

Late lustration in Poland

By 2006 Polish lustration had been described as lsquono lustration at allrsquo46 Lech andJarosław Kaczynski of the Law and Justice Party partially blamed the widespreadcorruption and cronyism on the former spy network and its continued influence onPolish society faulting the lack of a true retroactive justice element to the tran-sition47 At Lechrsquos inauguration he reiterated his moral cleansing missionlsquoPoland absolutely needs to establish moral order and this moral order meansalso our efforts to deal with the burden of the past by rejecting it This canbe achieved by political screening Vetting must be carried out with all determi-nationrsquo48 Thus the goal of building a new moral order was directly tied to anew lustration programme In November 2006 a new lustration plan was ratifiedand it went into effect on 15 March 2007 The new programme substantiallyexpanded the scope and transparency of previous lustration efforts

The scope of the vetting programme changed in two ways First the types ofpositions for which vetting would be required expanded The previous screeninglaws applied to ministers members of parliament and senators essentially tra-ditionally defined public office holders The new laws would require the screeningof 53 categories of workers or persons in lsquopositions of public trustrsquo includingteachers academics journalists state company executives school principalsdiplomats lawyers police and other broadly defined civil servants49 This wasconsistent with early drafts of the 1997 law which had never come to fruition50

One of the areas of lsquopublic trustrsquo controversially omitted was the clergy51 Secondthe definition of collaboration also changed loosening the conditions underwhich lsquocollaborationrsquo could be found52 This definitional change would classifypeople as collaborators who had contact with or were harassed by the secretpolice This was a politically charged decision because it overturned a 2000Supreme Court ruling that decided this level of involvement did not constitutecollaboration

With the expansion in scope a greater number of persons would be screenedThe previous lustration law required screening of approximating 27000 senioroffice holders By contrast the new vetting law would require all Poles bornbefore 1 August 1972 and in positions of lsquopublic trustrsquo to complete a vettingcertificate Depending on the final implementation of the law this could includeanywhere from 300000 to 15 million people with the figure 700000 routinelycited53 It is estimated that implementation of the laws as currently draftedcould take ten years54 As before individuals who lied about their regime

Democratization 353

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

involvement would be banned from certain public employment positions for tenyears However the longer time period for implementing the laws suggested acommitment to a longer lustration process than before

The new laws increased the transparency of the lustration programme Theoriginal lustration laws shielded information from publication for 30 years withinformation being declassified on 1 January each year55 Under the new law thesecurity service files would be published on the Internet Employers would alsobe required to verify that they had vetted their employees This expanded thelocus of responsibility from the individual alone to the individual and theemployer56 It increased the public nature of the laws and provided a built-in enfor-cement mechanism

In May 2007 before the 15 May deadline to file lustration declarations theConstitutional Court struck down elements of the expanded scope of the newlaw It argued that both the categories of individuals and the definition of collab-oration were too expansive and the lack of a right to appeal to the Supreme Courtwas unconstitutional57 Specifically it argued against the retroactive nature of thelustration law a verdict that resonates with the main debates in transitional justiceTherefore the expansive scope of the new lustration programme which was thecrux of the lustration reform was ruled unconstitutional in many respects TheCourt asked the current government to review the laws in order to makechanges that would bring them into compliance with the Polish ConstitutionDespite the Civic Platform victory in November 2007 in which JarosławKaczynski was replaced as prime minister by Donald Tusk the president hassaid he would continue with his previous mandate and is drafting another lustrationlaw58 How this issue will be resolved is presently uncertain However the originalquestion remains why late lustrate so late in the transition

Why lustrate

This paper has suggested three possible reasons why a government would chooseexpanded lustration 1) to try to create confidence in the trustworthiness of publicinstitutions in order to promote democratic consolidation 2) as a way to disadvan-tage political competition andor 3) as an international signal about reformefforts Which does the legal structure of the laws and popular perception aboutthe laws suggest is the dominant explanation

First if the new laws were designed to promote institutional trustworthinessthey would target the political economic and social institutions of public trustrather than focus myopically on the political elite Institutionally speaking thenew laws were broadly aimed at lsquopositions of public trustrsquo They were not target-ing the political office holders as they have in the past Laws targeting journalistsor academics or school principals are not tools to offset the power of rival politicalparties The new laws were targeted at a much larger swathe of society suggestingthey were addressing bigger issues of justice economic and political equality andsocial privileging Targeting positions that are not directly linked to public office

354 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

holders does not support a hypothesis that a party in power was using the laws todisadvantage political competition

Second if the new laws were trying to enhance the trustworthiness of publicinstitutions they would correct past problems with transparency With limits onpublicly available information or incremental revelations about files the processhas been criticized as arbitrary and non-transparent This has fuelled fears ofpolitical manipulation To combat this the new laws would open all of the filesand publish them on the Internet This would prevent political blackmailing orsecret information revelations Kaminiski and Nalepa point out that the keyfactor distinguishing lustration from decommunization is the vulnerability toblackmail59 Removing selective access to information reduces this danger As ashow of transparency the Kaczynskis were some of the first to have their filespublicized

The Polish system does not disqualify people from positions because of pastinvolvement people who lie about that involvement are removed from officeTherefore built into the structure is a control mechanism against overt politicalmanipulation but it is based on full transparency Opponents of previous lustrationhave changed their minds and endorsed the calls for increased transparency in thelatest lustration programme Michnik has called for the files to be opened as a wayto increase the transparency of the information60 Walesa took it upon himself topublish the files accepting that full transparency of the information was the bestway to move past this problem AsWalesa said lsquoI got sick and tired of the constantaccusations doubts and insinuations being peddled by these people and decided topublish these materials for all to seersquo61 When calls for transparency are endorsedby previous opponents of lustration and transparency of information is demon-strated by the party implementing the changes this suggests motives other thanpolitical manipulation of the files for direct personal gain

Third if the lustration programmes were designed to increase institutionaltrustworthiness and promote democratic consolidation they would addresspopular concerns about economic and political equity The late lustration lawshave become explicitly linked to anti-corruption programmes by the implementinggovernments Late lustration proposals have been debated concurrent with andsometimes in conjunction with anti-corruption measures in parliament Corruptionhas continued to be an enduring problem for all of the post-communist countriesNot only have corruption levels increased in CEE but there is a marked increase inthe salience of corruption as a political issue in the region62 As Table 1 showsmeasures of corruption and perceptions of corruption have gone up over time inPoland

By linking lustration with anti-corruption measures the expanded justice pro-gramme is aimed at redressing continued economic and political nomenklaturanetworks The economic inequalities and continued aggrandizing tendencies ofthe Polish elites were two important motivations cited by the current Polish gov-ernment in the enactment of the 2007 lustration law63 The continued perceptionthat some people remain above the law have contributed to low levels of citizen

Democratization 355

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

trust of the new public institutions64 For example the richest Polish businessmentoday had extensive contacts with the security services prior to 1989 a chargerepeated by former Interior Minister Antoni Macierewicz65 Those Polish secretpolice agents who did not make it through the vetting process successfullyended up in private security companies business and the Mafia66 This allowedformer secret service networks to persist and flourish in the private sector ndash oneof the reasons why the expanded lustration law has also targeted related privatesector positions There remain public questions regarding how the fortunes ofthe rich were accumulated This feeds a perception that prior regime collaborationhas not only gone unpunished but continues to economically and politically pri-vilege a group of elites

There was also a push for increased transparency and information about theMilitary Intelligence Service (WSI) a highly secretive agency that penetratedall aspects of political economic and social life including the media universities

Table 1 Trust and Corruption

2001 2002 2003 2004 2005 2006

Poland Trust in Various Public InstitutionsCivil Service 28 34 24National Government 30 27 14 7Judiciary 29 34 24 21Police 43 47 42 43Trade Unions 20 20 25 21Public Institutions 25 24 15Poland Corruption MeasuresFreedom House Corruption Levels (1ndash7 lower number less corruption)

225 225 25 25 3 325CPI (0 high corruption-10 low corruption)

41 4 36 35 34 37Romania Trust in Various Public InstitutionsCivil Service 32 33 34National Government 41 37 38 36Judiciary 29 30 35 29Police 35 38 43 40Trade Unions 22 22 27 26Public Institutions 29 30 30Romania Corruption MeasuresFreedom House Corruption Levels

45 475 45 45 425 425CPI (0 high corruption-10 low corruption)

28 26 28 29 3 31

Sources Inter-University Consortium for Political and Social ResearchCandidate Countries Eurobarometer Various years Wwwiicpsrumichedu Freedom House Nationsin Transit Democratization from Central Europe to Eurasia (2007) httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484 Transparency International various yearsCorruption Perceptions Index httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

356 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and social organizations The new law required the screening of its agents as wellas the disbanding of the agency itself67 The former Prime Minister KazimierzMarcinkiewicz directly linked the major political scandals in Poland with the unre-formed and unvetted intelligence service68 As one government official commen-ted lsquoThis is the biggest bugbear a lawless unreformed communist erabureaucracy that has escaped all political controlrsquo69 Given the nature of thisorganization and its continued links to business and political networks itsability to avoid lustration for the past 18 years is rather remarkable and an indi-cation of the flawed nature of previous programmes It is also an indication ofthe desire of the new programme to tackle unresolved problems with the transitioneven if they are politically sensitive If the most influential business and politicalnetworks are going to be targeted this cannot be politically advantageous in theshort term to the party that implements these changes

There is also interest in having the new lustration laws target past privatiza-tions Special investigations of certain privatizations have been raised includinga suggestion to allow the state to take over a company that was built lsquounjustlyor with communist connectionsrsquo70 Investigating lingering economic injusticesthat might have gone unpunished thus far is consistent with a hypothesis thatthe laws are designed to redress problems in the transition and promote democraticreforms in post-communist societies

Fourth public opinion about lustration affects its relative utility If lustration isintended to have a symbolic impact and therefore affect citizen perceptions ofpublic institutions it must resonate with the population as legitimate In 199138 of Poles supported lustration In 1992 64 supported lustration policiesjumping over the one year period in which there were cycles of presidential intri-gue71 In 1994 public opinion polls showed 75 of respondents thought SBcollaborators should not occupy senior state posts72 From 1994ndash1999 a clearmajority of Poles favoured vetting key political officials for links with the SBwith only one in three opposed to lustration73 Even after several failed roundsof lustration in 2000 52 of Poles thought lustration of presidential candidateswas necessary with 72 saying they thought it was important to know aboutthe past of candidates and 10 thinking that lustration policies in particular didin fact prove the trustworthiness of candidates74 More recent public opinionpolls (2006) have shown that Poles favour the principle of vetting as lsquoan essentialcleansing processrsquo that was not carried out immediately after communism75Whilethese attitudinal indicators are not definitive they suggest that late lustration istapping into concerns that appear legitimate to the national population

There is a collective sense that the past actively affects the political and econ-omic reality of the present A historian working at IPN explained lsquoWe cannotmove forward [until] we make sure that the people who shape our future arenot implicated in the pastrsquo76 Universities preempted the enactment of the lawand starting probing their own staff with an eye toward lsquothe scores of academics[who] were zealous SB collaborators in the 1980srsquo77 If the late lustration policieswere simply tools of political manipulation designed to advantage the political

Democratization 357

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

elite they would actively opposed by the very agency that is the repository of fileson the past Universities would also protest the use of the files which in manycases were going to require self-lustration and could negatively impact the univer-sity staff Neither of these agents directly supports or advantages the party inpower which again fails to support an argument that the laws are politicallymanipulated to achieve party advantage

Fifth the media has broadly framed the new lustration laws as an attempt bythe Kaczynskis to purge an entire generation of older politicians from publicoffice and more narrowly as a tool of revenge wielded by the brothers againstSolidarity in general and Lech Walesa specifically78 This characterization fitswith a hypothesis that the laws are manipulated for personal political advantageby the party in power However arguments that the laws are party politicsdressed up as transitional justice donrsquot capture the nature of political cleavagesor party politics in Poland well While Poland has had substantial political turn-over there have not been clear anti-communist forces lobbying for lustrationand pro-communist force arguing against it Polandrsquos lustration issues have notcleaved along what would be traditionally hypothesized party lines79 This timearound several prominent dissidents including Walesa himself have changedtheir minds and supported a more open lustration process for once and for allDespite the political cycling that has gone on with lustration in Poland therehave been no clear winners All parties have been harmed by the inability toimplement transparent and fair transitional justice programmes

One of the alternative hypotheses suggested that late lustration policies mightbe designed for external audiences signalling positive changes in the domesticenvironment However there are potential negative economic consequences tothis retroactive justice measure The new laws called for the lustration of statecompany executives and business leaders The Financial Supervision Authority(KNF) Polandrsquos new unified banking corporate and financial markets regulatingorganization feared that if board members and managers of companies werelustrated this could provoke financial uncertainty and possibly an economicdownturn80

Moreover the Council of Europe has explicitly questioned the legality of theexpanded law and suggested that certain elements could undermine sound rule oflaw practices81 The Council of Europersquos Commissioner for Human Rights expli-citly criticized the new law saying lsquoit does not uphold the standards of a state basedon rule of law and respect for human rightsrsquo82 In addition the Helsinki Committeeof Poland a national affiliate of a broader international NGO communitycommitted to upholding the International Helsinki Federation of Human Rightsformally questioned the legality of the expanded laws83 Given the negativepolitical and economic reactions by the international community to the expandedlustration programmes this does not support a hypothesis that the laws aredesigned as international signals about reforms

In sum the expansive scope of the new lustration law suggested a concertedeffort to change the bureaucratic composition and competencies of institutions

358 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

across political economic and social spheres The laws appeared authentic to thepopulation and targeted social inequity corruption and economic inequality ofopportunity that were of concern to the population Both the transparency andaccountability measures included in the new programme were substantial legalchanges that would correct some problems with the implementation of previouslustration programmes While no one piece of evidence about the laws is sufficientto prove that the leadership designed expansive late lustration policies to promotedemocratic consolidation these three components together all affirm the samehypothesis Late lustration laws look like reformist tools designed and framedby the government as a way to create an institutional and symbolic break withthe past in order to further the democratic transition Whether a lustrationprogramme will or could accomplish such a feat remains to be seen

Romania

Romania presents an interesting contrast to Poland Despite its having one of themost pervasive and active secret police presences in CEE lustration has beenalmost non-existent in Romania In terms of the nature of the transition thebloody removal of Ceausescu was a far cry from the Round Table talks inPoland Romania was not part of the Visegrad Group of early reformers receivingthe dubious distinction of lsquothe most corrupt among countries seeking accession tothe [European] Unionrsquo84 (see Table 1) In essence Romania was in a different pol-itical economic and international situation from Poland but opted for a similarlate lustration programme lsquoWhy lustrate so late in the transitionrsquo is an equallycompelling question for Romania

Background

In March 1990 just months after the November 1989 revolution the Proclamationof Timisoara called for lustration of the Communist Party nomeklatura and Secur-itate cadres85 Despite this early popular movement for transitional justice Roma-niarsquos first post-1989 president pardoned members of the Ceausescu family andhigh-ranking Communist Party members thereby foreclosing that possibility86

By 1996 Romania had made the least progress of countries in the region in thescreening of security personnel or pursuing transitional justice87

The first centre-right government came to power from 1996ndash2000 and initiateda series of transitional justice measures In October 1999 the Ticu Dumitrescu Lawwas passed creating the Council for the Study of the Securitate Archives (CNSAS)to oversee the secret police files control public access to this information andoversee compliance with the lustration measures88 The Constitutional Courtrejected a challenge to the constitutionality of the law in November 199989 TheCNSAS was formed but the substantial delays appointing council membersfunding the body giving it a place to function or even providing it with the filesessentially rendered it symbolically important but institutionally ineffectual90

Democratization 359

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

In 2004 the Justice and Truth political coalition pushed forward with arenewed lustration programme supported by President Traian Basescu In 2005there were two parallel lustration initiatives in Parliament designed to build onthis work one more radical proposal from the National Initiative Party and theother a relatively more moderate although still substantially expanded proposalput forward by the National Liberals The National Liberalsrsquo proposal waspassed by the Senate in April 200691 However the Chamber of Deputieswhich has the final say lsquohas shelved the document indefinitelyrsquo92 In December2006 President Basescu formally condemned the communist regime and inmid-May 2007 he once again affirmed his commitment to a comprehensive lustra-tion programme93 At this point it remains unclear what the status of lustrationwill look like

Despite the legal morass the CNSAS has continued to review files and issuerulings Because the lustration law has not been finalized the CNSASrsquos verdictsare largely symbolic although they are believed to have moral value94 Thework of the CNSAS and the lustration laws were challenged by the ConstitutionalCourt in January 2008 which ruled that certain aspects of the CNSASrsquos workassumed juridical attributes that infringed on rights and liberties and were there-fore unconstitutional95 The government adopted an emergency decree to overrulethe Court and allow access to the files thereby allowing the CNSAS to continue itswork96 As with the Polish case the future of the expanded lustration programmeis not yet known

Late lustration in Romania

Despite the murky future of the lustration programme in Romania why latelustration is an important question As in the Polish case the Romanian lawsexpanded the scope and transparency of the laws The scope of the laws increasedin two ways First the list of positions requiring lustration widened affecting poli-ticians at national regional and local levels While major political offices remainon the list such as the president parliament and directors of government insti-tutions local regional positions would also be subject to lustration includingmayors judges inspectors and local officials Major security positions in thepolice and army at all levels were also included In addition to traditionally under-stood political positions the media the clergy and academics would also besubject to lustration Moreover managers of central or local cultural institutionswould require lustration as would other cultural figures and persons in lsquopositionsof public trustrsquo97 The expansion of lustration to quasi-private sector positions aswell as cultural positions suggested that the new laws were broadly aimed at pos-itions in civil society

The definition of collaboration also expanded the scope of the proceedingsCollaboration sufficient to preclude employment possibilities includes active par-ticipation in the Romanian Communist Party and the Union of Communist Youthat national regional or county levels Work with the Council of Socialist Culture

360 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and Education in any propaganda capacity for example editors or secretaries inpress institutions would be prohibitive Professors in party schools would beexcluded as would individuals who held ranking positions in banks or whoworked in foreign currency operations Finally former Securitate officersmembers of the militia and former judges would also be affected by the lustrationlaw In this way both the scope of positions and the scope of collaborationexpanded Notably collaboration does not hinge on secret police collaborationthereby suggesting that the traditional definition of lustration no longer fits withthe expansive nature of the proposed vetting programme

The expanded scope has increased the consequent size of the vetting net 135million files have been transferred to the Council for review and declassifying98

Given the estimated eight miles of files it could take ten years for the files to berevealed99 This would extend the process of lustration substantially into the futureand refocus the laws away from a purely truth-revelation exercise

In addition to the substantial changes in the scope of the laws the governmentdesigned the new law to improve the transparency of the proceedings by removingthe classified status from the archives of the Central Committee of the RomanianCommunist Party and releasing the Securitate files to CNSAS100 This openedaccess to information and freed files that had previously been classified for 40years Under the previous lustration programmes only those files classified aslsquopolitical policersquo meaning people who collaborated with the Securitate could belustrated Part of the new lustration law involves potentially reclassifying allfiles as lsquopolitical policersquo qualitatively expanding the scope of information avail-able and therefore the depth and transparency of the lustration procedures101

Moreover there are a number of actors now involved in the lustration processThe process is not centralized or controlled by a single locus of power A multi-plication of institutions became involved with the truth revelationinvestigationprocess including two truth commissions a presidential commission and agovernment institute as well as smaller fact-checking commissions which inde-pendently developed to verify the work of the national investigation commis-sions102 These multiple levels of accountability also suggest somethingfundamentally different about the transparency of the new lustration efforts

Why lustrate

The question lsquowhy lustratersquo is equally compelling in the Romanian case Does theRomanian case confirm a political competition hypothesis better than the Polishcase What national or international conditions might explain late lustration inRomania

First the scope of the new lustration programme in Romania was similar to thePolish case The types of positions targeted went well beyond political elitesbroadly addressing so called lsquopositions of trustrsquo The government defined thesepositions of trust to include local and regional political and economic officialsand persons in positions of cultural or moral authority such as academics and

Democratization 361

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

journalists In terms of institutional impact it was designed for a maximal effect onpublic and quasi-public institutions at all levels The laws appear to target theperceived problem of low levels of bureaucratic change The laws do not ignoretop-ranking political office holders but they are not focused on this group exclu-sively The wide purview of the laws suggests a larger reformist strategy aimed atboth public institutions and the civil society institutions that support them More-over the lustration programme explicitly addresses moral values and public trustthereby tapping into the hypothesized symbolic intention of the laws in furtheringthe process of democratic consolidation

The targeting of the clergy for lustration in the Romanian case is an example ofthe symbolic nature of the programme The clergy has admitted to widespread col-laboration with the Securitate and has been included in the list of positions of trustto be lustrated103 The clergy is not directly affiliated or supported by a politicalbloc therefore lustrating this category of individuals cannot be explained as afunction of gaining direct political advantage on the part of the implementingparty Moreover lustrating the clergy could negatively impact the party inpower since the church enjoys the highest levels of public trust of Romaniarsquospublic institutions (83)104 The targeting of the clergy fits with the moral cleans-ing narrative being put forth to partially explain lustration If lustration is hypoth-esized to catalyze both institutional and symbolic change it would include thesetypes of positions with moral resonance

Second if the new lustration law was designed to support the democratic tran-sition it would increase transparency and accountability in order to reduce thepotential for the laws to be politically manipulated The declassification of all cat-egories of files and the strengthening of the power of the CNSAS suggest an attemptto correct information management problems105 As mentioned there are manyagents involved with the implementation of this programme suggesting onceagain a lack of party orchestration of the process for direct political gain In conjunc-tion with the multiple sources monitoring lustration there is a push by the govern-ment for more media openness with respect to politics as a whole and lustration inparticular106 This also supports an argument that the government is trying toincrease transparency in order to improve the legality and legitimacy of the process

Third Romaniarsquos lustration efforts were bundled with other reform pro-grammes including constitutional reforms reformation of the political classchanges in voting structure to be more inclusive of minorities and national secur-ity changes suggesting a larger reformation mandate107 The lustration law wasproposed and circulated in Parliament at the same time as an anti-corruptionlaw The anti-corruption proposal got caught in political fighting and expiredbefore it could be acted upon108 Additionally the lustration laws were adoptedin conjunction with a draft law reforming the intelligence service109 After1989 approximately 1600 former Securitate officers ended up holding keyposts in the intelligence service110 As such the packaging of lustration withinthe context of broader economic political social and security measures pointsto a larger government reform mandate

362 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Romania suffers from low levels of citizen trust in government and high levelsof corruption (see Table 1) Corruption thrives in all spheres in Romania and it isdirectly tied to the political class Perceptions of corruption are fuelled by the per-vasive belief that the people who contributed to the previous totalitarian regimecontinue to obtain legal and business advantages with 80 of Romanianspolled thinking that corruption levels grew or stagnated even after joiningEU111 Since public office holders and industry leaders are largely drawn fromformer communist elites or Securitate informers there is a belief that the lack ofretroactive justice measures has perpetuated economic and political inequalitiesThe current laws directly address the perceptions of economic inequality andinjustice by focusing on the lustration of economic positions of power includingfinancial institutions By lustrating positions of both economic and political poweracross public and quasi-public institutions the new laws take on the evidence thatthe former secret service networks remain in top political economic and socialpositions and are using their positions for personal gains

The role of former Securitate officers in Romanian society today remains asubject of public anxiety As Vladimir Tismaneanu the head of the PresidentialCommission for the Study of the Communist Dictatorship in Romania notedlsquopeople were perplexed noticing the thriving careers of proven Securitate collab-oratorsrsquo112 The Securitate have maintained powerful ties to business elites in thenew regime lsquoRomanian Securitate agents and activists were the first to benefitfrom an unregulated transition toward capitalism and a multiparty systemrsquo113 In2006 the President of the Institute for the Investigation of the Crimes of Commun-ism summed up the nature of regime change in Romania lsquoIn rsquo89 only Commun-ism was killed but the former state security and Communist Party chiefs took theeconomic powerrsquo114 The continued involvement of former Securitate officers inpolitical and economic networks fuels citizen perceptions that the transition wasincomplete

Finally public opinion on lustration is mixed reflecting a general sense of con-fusion about what will correct the problems in Romanian society Student organiz-ations have called for the lustration of deans and academics and unions havelobbied for lustration of their leaders and representatives115 A civic associationof journalists has pushed for lustration of the media116 In early 2006 50 of citi-zens polled wanted lustration to immediately come into force andmore than half ofcitizens wanted the archives made publicly accessible on the internet117 Howeveronly 43 thought lustration might be useful and 47 thought it might have noimpact whatsoever118 A similar poll later in 2006 showed that 36 of personspolled felt that society would be lsquocleaner and more honestrsquo after lustration with33 showing an interest in revelations and 47 showing no interest at all119

Given the mixed views on the impact of lustration it does not appear likely thatthe party in power designed extensive and controversial lustration laws to tapinto populist sentiments in order to gain a short term direct political advantage

However a political manipulation alternative hypothesis remains compellingin the context of Romania Domestic political fights over lustration and interparty

Democratization 363

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

accusations of collaboration have impacted all Romaniarsquos lustration efforts andcontinue to block the implementation of ratified laws120 The 2006 lustrationlaw proposal turned into a hotly contested and morally charged national debatepassing in the Senate by a single vote and largely opposed by the politicalparties who were Communist Party holdovers121 Lustration changes wereexpected to affect at least 100 current MPs in Parliament which would havesubstantially changed the parliamentary balance of power122 These events areall consistent with an explanation of lustration as a by-product of competitionbetween political parties

Nonetheless the evidence does not fit neatly into a party politics explanationThe primary supporters of lustration the National Liberal Party were politicallydisadvantaged by the laws123 They have been the party most affected by collab-oration accusations with top Liberal officials expelled from the party includingtheir very popular minister of culture Mona Musca124 Basescursquos lsquoexplicit andcategoricalrsquo condemnation of the previous communist system and its record of atro-cities was also a politically precarious position to take in favour of lustration andtransparency125 President Basescursquos speech was received by a divided and hostileParliament and a December 2007 Public Opinion Barometer poll in Romaniashowed citizens still considered Ceausescu was the best political leader thatRomania ever had126 Basescu pushed forward with the legal initiative andavoided an impeachment attempt only after a popular referendum127 This evi-dence does not fit with a political manipulation hypothesis especially given thehigh potential risk for the president and the party initiating the reforms

In addressing the question lsquowhy lustratersquo the evidence for a political manipu-lation hypothesis is lacking As predicted there is some opposition to the policiesby individuals and parties that might be politically disadvantaged There is alsoopposition to the law from the Constitutional Court which has debated both theappropriateness of all retroactive justice measures as well as the constitutionalityof these specific lustration laws However neither of these supports an argumentthat the laws are designed and implemented to advantage a certain party at theexpense of adversaries The fact that the laws are politically motivated and conten-tious does not lead to the conclusion that they are political manipulated

Finally there is some evidence that the late lustration programme was partiallydesigned or timed for international consumption There was substantial signallingon the part of the Romanian president and prime minister about domestic efforts toclean up their oft-cited problems with corruption especially right before the finalaccession negotiations in late 2006128 Therefore it is possible that Romaniarsquospublic posturing might have tipped the EUrsquos assessment of Romania at a crucialmoment in membership considerations However like Poland the expansivescope of the lustration laws could violate freedoms protected by the EuropeanUnionrsquos Court of Justice as well as international obligations under the EuropeanCharter of Human Rights and the International Labor Organization Moreover theEU has explicitly questioned whether lustration conflicts with underlying EUvalues129 Therefore while it is possible that part of the lustration effort was

364 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

designed to appease the international communityrsquos concerns about domesticcorruption problems given the international communityrsquos lack of clear supportregarding the implementation of lustration in other countries this would havebeen a highly risky strategy

In sum the reasons for late lustration in Romania bear a strong resemblance tothe Polish case despite the different political economic and social conditions inthe countries The expansive scope of the Romanian laws the types of positionstargeted the transparency improvements and the proliferation of oversightagencies and mechanisms to monitor implementation of the laws all point to agovernment programme designed to effect broad institutional change as well assymbolic change As with the Polish case lustration and anti-corruption effortshave been conflated in the political sphere There is a link made between continuedcorruption and lack of transitional justice by the governments in the region Lustrationefforts are framed in this anti-corruption narrative and conjoined with economicand political reform efforts This all suggests that the government enacted latelustration in order to address the evidence and perceptions about economicsocial and political problems that have remained unresolved in the transition

Conclusion supporting or undermining democratic transitions

Three findings arise from this comparison of late lustration programmes in Polandand Romania First late lustration looks substantially different from early lustrationprogrammes and has a different more expansive mandate Late lustration is aimedbroadly at positions of public trust spanning political cultural social and economicpositions The programmes are not focused either exclusively or myopically on toppolitical office holders but include positions of trust at national regional and locallevels The criteria for collaborationwere also loosened in both programmes signal-ling a significant change in determining what level of previous secret police or evenregime involvement would lead to employment exclusion The two-pronged expan-sive scope tackles new policy goals including anti-corruption and politicalprivileging concerns The policies are designed to complement and in some casessubstitute for anti-corruption measures Moral cleansing is a dominant theme inboth programmes with a focus on correcting lingering inequalities in terms of econ-omic and political opportunities This resonates with the symbolic change com-ponent of lustrationrsquos goals The similarities of the programmes the transparencysafeguards and the grouping of lustration with other reform efforts suggest aconcerted attempt by the governments to change citizen perceptions of the insti-tutional capacity and integrity of public and quasi-public institutions

This analysis of the structure and intention of late lustration is an importantcontribution to the lustration literature because it highlights the evolving defi-nition of lustration and its intended impact There remains much debate over thegoals of lustration As lustration expands to include non-political positions orprivate sector positions or changes the criteria for determining collaborationthis will impact the very way the term is used in the transitional justice literature

Democratization 365

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

elite they would actively opposed by the very agency that is the repository of fileson the past Universities would also protest the use of the files which in manycases were going to require self-lustration and could negatively impact the univer-sity staff Neither of these agents directly supports or advantages the party inpower which again fails to support an argument that the laws are politicallymanipulated to achieve party advantage

Fifth the media has broadly framed the new lustration laws as an attempt bythe Kaczynskis to purge an entire generation of older politicians from publicoffice and more narrowly as a tool of revenge wielded by the brothers againstSolidarity in general and Lech Walesa specifically78 This characterization fitswith a hypothesis that the laws are manipulated for personal political advantageby the party in power However arguments that the laws are party politicsdressed up as transitional justice donrsquot capture the nature of political cleavagesor party politics in Poland well While Poland has had substantial political turn-over there have not been clear anti-communist forces lobbying for lustrationand pro-communist force arguing against it Polandrsquos lustration issues have notcleaved along what would be traditionally hypothesized party lines79 This timearound several prominent dissidents including Walesa himself have changedtheir minds and supported a more open lustration process for once and for allDespite the political cycling that has gone on with lustration in Poland therehave been no clear winners All parties have been harmed by the inability toimplement transparent and fair transitional justice programmes

One of the alternative hypotheses suggested that late lustration policies mightbe designed for external audiences signalling positive changes in the domesticenvironment However there are potential negative economic consequences tothis retroactive justice measure The new laws called for the lustration of statecompany executives and business leaders The Financial Supervision Authority(KNF) Polandrsquos new unified banking corporate and financial markets regulatingorganization feared that if board members and managers of companies werelustrated this could provoke financial uncertainty and possibly an economicdownturn80

Moreover the Council of Europe has explicitly questioned the legality of theexpanded law and suggested that certain elements could undermine sound rule oflaw practices81 The Council of Europersquos Commissioner for Human Rights expli-citly criticized the new law saying lsquoit does not uphold the standards of a state basedon rule of law and respect for human rightsrsquo82 In addition the Helsinki Committeeof Poland a national affiliate of a broader international NGO communitycommitted to upholding the International Helsinki Federation of Human Rightsformally questioned the legality of the expanded laws83 Given the negativepolitical and economic reactions by the international community to the expandedlustration programmes this does not support a hypothesis that the laws aredesigned as international signals about reforms

In sum the expansive scope of the new lustration law suggested a concertedeffort to change the bureaucratic composition and competencies of institutions

358 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

across political economic and social spheres The laws appeared authentic to thepopulation and targeted social inequity corruption and economic inequality ofopportunity that were of concern to the population Both the transparency andaccountability measures included in the new programme were substantial legalchanges that would correct some problems with the implementation of previouslustration programmes While no one piece of evidence about the laws is sufficientto prove that the leadership designed expansive late lustration policies to promotedemocratic consolidation these three components together all affirm the samehypothesis Late lustration laws look like reformist tools designed and framedby the government as a way to create an institutional and symbolic break withthe past in order to further the democratic transition Whether a lustrationprogramme will or could accomplish such a feat remains to be seen

Romania

Romania presents an interesting contrast to Poland Despite its having one of themost pervasive and active secret police presences in CEE lustration has beenalmost non-existent in Romania In terms of the nature of the transition thebloody removal of Ceausescu was a far cry from the Round Table talks inPoland Romania was not part of the Visegrad Group of early reformers receivingthe dubious distinction of lsquothe most corrupt among countries seeking accession tothe [European] Unionrsquo84 (see Table 1) In essence Romania was in a different pol-itical economic and international situation from Poland but opted for a similarlate lustration programme lsquoWhy lustrate so late in the transitionrsquo is an equallycompelling question for Romania

Background

In March 1990 just months after the November 1989 revolution the Proclamationof Timisoara called for lustration of the Communist Party nomeklatura and Secur-itate cadres85 Despite this early popular movement for transitional justice Roma-niarsquos first post-1989 president pardoned members of the Ceausescu family andhigh-ranking Communist Party members thereby foreclosing that possibility86

By 1996 Romania had made the least progress of countries in the region in thescreening of security personnel or pursuing transitional justice87

The first centre-right government came to power from 1996ndash2000 and initiateda series of transitional justice measures In October 1999 the Ticu Dumitrescu Lawwas passed creating the Council for the Study of the Securitate Archives (CNSAS)to oversee the secret police files control public access to this information andoversee compliance with the lustration measures88 The Constitutional Courtrejected a challenge to the constitutionality of the law in November 199989 TheCNSAS was formed but the substantial delays appointing council membersfunding the body giving it a place to function or even providing it with the filesessentially rendered it symbolically important but institutionally ineffectual90

Democratization 359

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

In 2004 the Justice and Truth political coalition pushed forward with arenewed lustration programme supported by President Traian Basescu In 2005there were two parallel lustration initiatives in Parliament designed to build onthis work one more radical proposal from the National Initiative Party and theother a relatively more moderate although still substantially expanded proposalput forward by the National Liberals The National Liberalsrsquo proposal waspassed by the Senate in April 200691 However the Chamber of Deputieswhich has the final say lsquohas shelved the document indefinitelyrsquo92 In December2006 President Basescu formally condemned the communist regime and inmid-May 2007 he once again affirmed his commitment to a comprehensive lustra-tion programme93 At this point it remains unclear what the status of lustrationwill look like

Despite the legal morass the CNSAS has continued to review files and issuerulings Because the lustration law has not been finalized the CNSASrsquos verdictsare largely symbolic although they are believed to have moral value94 Thework of the CNSAS and the lustration laws were challenged by the ConstitutionalCourt in January 2008 which ruled that certain aspects of the CNSASrsquos workassumed juridical attributes that infringed on rights and liberties and were there-fore unconstitutional95 The government adopted an emergency decree to overrulethe Court and allow access to the files thereby allowing the CNSAS to continue itswork96 As with the Polish case the future of the expanded lustration programmeis not yet known

Late lustration in Romania

Despite the murky future of the lustration programme in Romania why latelustration is an important question As in the Polish case the Romanian lawsexpanded the scope and transparency of the laws The scope of the laws increasedin two ways First the list of positions requiring lustration widened affecting poli-ticians at national regional and local levels While major political offices remainon the list such as the president parliament and directors of government insti-tutions local regional positions would also be subject to lustration includingmayors judges inspectors and local officials Major security positions in thepolice and army at all levels were also included In addition to traditionally under-stood political positions the media the clergy and academics would also besubject to lustration Moreover managers of central or local cultural institutionswould require lustration as would other cultural figures and persons in lsquopositionsof public trustrsquo97 The expansion of lustration to quasi-private sector positions aswell as cultural positions suggested that the new laws were broadly aimed at pos-itions in civil society

The definition of collaboration also expanded the scope of the proceedingsCollaboration sufficient to preclude employment possibilities includes active par-ticipation in the Romanian Communist Party and the Union of Communist Youthat national regional or county levels Work with the Council of Socialist Culture

360 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and Education in any propaganda capacity for example editors or secretaries inpress institutions would be prohibitive Professors in party schools would beexcluded as would individuals who held ranking positions in banks or whoworked in foreign currency operations Finally former Securitate officersmembers of the militia and former judges would also be affected by the lustrationlaw In this way both the scope of positions and the scope of collaborationexpanded Notably collaboration does not hinge on secret police collaborationthereby suggesting that the traditional definition of lustration no longer fits withthe expansive nature of the proposed vetting programme

The expanded scope has increased the consequent size of the vetting net 135million files have been transferred to the Council for review and declassifying98

Given the estimated eight miles of files it could take ten years for the files to berevealed99 This would extend the process of lustration substantially into the futureand refocus the laws away from a purely truth-revelation exercise

In addition to the substantial changes in the scope of the laws the governmentdesigned the new law to improve the transparency of the proceedings by removingthe classified status from the archives of the Central Committee of the RomanianCommunist Party and releasing the Securitate files to CNSAS100 This openedaccess to information and freed files that had previously been classified for 40years Under the previous lustration programmes only those files classified aslsquopolitical policersquo meaning people who collaborated with the Securitate could belustrated Part of the new lustration law involves potentially reclassifying allfiles as lsquopolitical policersquo qualitatively expanding the scope of information avail-able and therefore the depth and transparency of the lustration procedures101

Moreover there are a number of actors now involved in the lustration processThe process is not centralized or controlled by a single locus of power A multi-plication of institutions became involved with the truth revelationinvestigationprocess including two truth commissions a presidential commission and agovernment institute as well as smaller fact-checking commissions which inde-pendently developed to verify the work of the national investigation commis-sions102 These multiple levels of accountability also suggest somethingfundamentally different about the transparency of the new lustration efforts

Why lustrate

The question lsquowhy lustratersquo is equally compelling in the Romanian case Does theRomanian case confirm a political competition hypothesis better than the Polishcase What national or international conditions might explain late lustration inRomania

First the scope of the new lustration programme in Romania was similar to thePolish case The types of positions targeted went well beyond political elitesbroadly addressing so called lsquopositions of trustrsquo The government defined thesepositions of trust to include local and regional political and economic officialsand persons in positions of cultural or moral authority such as academics and

Democratization 361

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

journalists In terms of institutional impact it was designed for a maximal effect onpublic and quasi-public institutions at all levels The laws appear to target theperceived problem of low levels of bureaucratic change The laws do not ignoretop-ranking political office holders but they are not focused on this group exclu-sively The wide purview of the laws suggests a larger reformist strategy aimed atboth public institutions and the civil society institutions that support them More-over the lustration programme explicitly addresses moral values and public trustthereby tapping into the hypothesized symbolic intention of the laws in furtheringthe process of democratic consolidation

The targeting of the clergy for lustration in the Romanian case is an example ofthe symbolic nature of the programme The clergy has admitted to widespread col-laboration with the Securitate and has been included in the list of positions of trustto be lustrated103 The clergy is not directly affiliated or supported by a politicalbloc therefore lustrating this category of individuals cannot be explained as afunction of gaining direct political advantage on the part of the implementingparty Moreover lustrating the clergy could negatively impact the party inpower since the church enjoys the highest levels of public trust of Romaniarsquospublic institutions (83)104 The targeting of the clergy fits with the moral cleans-ing narrative being put forth to partially explain lustration If lustration is hypoth-esized to catalyze both institutional and symbolic change it would include thesetypes of positions with moral resonance

Second if the new lustration law was designed to support the democratic tran-sition it would increase transparency and accountability in order to reduce thepotential for the laws to be politically manipulated The declassification of all cat-egories of files and the strengthening of the power of the CNSAS suggest an attemptto correct information management problems105 As mentioned there are manyagents involved with the implementation of this programme suggesting onceagain a lack of party orchestration of the process for direct political gain In conjunc-tion with the multiple sources monitoring lustration there is a push by the govern-ment for more media openness with respect to politics as a whole and lustration inparticular106 This also supports an argument that the government is trying toincrease transparency in order to improve the legality and legitimacy of the process

Third Romaniarsquos lustration efforts were bundled with other reform pro-grammes including constitutional reforms reformation of the political classchanges in voting structure to be more inclusive of minorities and national secur-ity changes suggesting a larger reformation mandate107 The lustration law wasproposed and circulated in Parliament at the same time as an anti-corruptionlaw The anti-corruption proposal got caught in political fighting and expiredbefore it could be acted upon108 Additionally the lustration laws were adoptedin conjunction with a draft law reforming the intelligence service109 After1989 approximately 1600 former Securitate officers ended up holding keyposts in the intelligence service110 As such the packaging of lustration withinthe context of broader economic political social and security measures pointsto a larger government reform mandate

362 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Romania suffers from low levels of citizen trust in government and high levelsof corruption (see Table 1) Corruption thrives in all spheres in Romania and it isdirectly tied to the political class Perceptions of corruption are fuelled by the per-vasive belief that the people who contributed to the previous totalitarian regimecontinue to obtain legal and business advantages with 80 of Romanianspolled thinking that corruption levels grew or stagnated even after joiningEU111 Since public office holders and industry leaders are largely drawn fromformer communist elites or Securitate informers there is a belief that the lack ofretroactive justice measures has perpetuated economic and political inequalitiesThe current laws directly address the perceptions of economic inequality andinjustice by focusing on the lustration of economic positions of power includingfinancial institutions By lustrating positions of both economic and political poweracross public and quasi-public institutions the new laws take on the evidence thatthe former secret service networks remain in top political economic and socialpositions and are using their positions for personal gains

The role of former Securitate officers in Romanian society today remains asubject of public anxiety As Vladimir Tismaneanu the head of the PresidentialCommission for the Study of the Communist Dictatorship in Romania notedlsquopeople were perplexed noticing the thriving careers of proven Securitate collab-oratorsrsquo112 The Securitate have maintained powerful ties to business elites in thenew regime lsquoRomanian Securitate agents and activists were the first to benefitfrom an unregulated transition toward capitalism and a multiparty systemrsquo113 In2006 the President of the Institute for the Investigation of the Crimes of Commun-ism summed up the nature of regime change in Romania lsquoIn rsquo89 only Commun-ism was killed but the former state security and Communist Party chiefs took theeconomic powerrsquo114 The continued involvement of former Securitate officers inpolitical and economic networks fuels citizen perceptions that the transition wasincomplete

Finally public opinion on lustration is mixed reflecting a general sense of con-fusion about what will correct the problems in Romanian society Student organiz-ations have called for the lustration of deans and academics and unions havelobbied for lustration of their leaders and representatives115 A civic associationof journalists has pushed for lustration of the media116 In early 2006 50 of citi-zens polled wanted lustration to immediately come into force andmore than half ofcitizens wanted the archives made publicly accessible on the internet117 Howeveronly 43 thought lustration might be useful and 47 thought it might have noimpact whatsoever118 A similar poll later in 2006 showed that 36 of personspolled felt that society would be lsquocleaner and more honestrsquo after lustration with33 showing an interest in revelations and 47 showing no interest at all119

Given the mixed views on the impact of lustration it does not appear likely thatthe party in power designed extensive and controversial lustration laws to tapinto populist sentiments in order to gain a short term direct political advantage

However a political manipulation alternative hypothesis remains compellingin the context of Romania Domestic political fights over lustration and interparty

Democratization 363

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

accusations of collaboration have impacted all Romaniarsquos lustration efforts andcontinue to block the implementation of ratified laws120 The 2006 lustrationlaw proposal turned into a hotly contested and morally charged national debatepassing in the Senate by a single vote and largely opposed by the politicalparties who were Communist Party holdovers121 Lustration changes wereexpected to affect at least 100 current MPs in Parliament which would havesubstantially changed the parliamentary balance of power122 These events areall consistent with an explanation of lustration as a by-product of competitionbetween political parties

Nonetheless the evidence does not fit neatly into a party politics explanationThe primary supporters of lustration the National Liberal Party were politicallydisadvantaged by the laws123 They have been the party most affected by collab-oration accusations with top Liberal officials expelled from the party includingtheir very popular minister of culture Mona Musca124 Basescursquos lsquoexplicit andcategoricalrsquo condemnation of the previous communist system and its record of atro-cities was also a politically precarious position to take in favour of lustration andtransparency125 President Basescursquos speech was received by a divided and hostileParliament and a December 2007 Public Opinion Barometer poll in Romaniashowed citizens still considered Ceausescu was the best political leader thatRomania ever had126 Basescu pushed forward with the legal initiative andavoided an impeachment attempt only after a popular referendum127 This evi-dence does not fit with a political manipulation hypothesis especially given thehigh potential risk for the president and the party initiating the reforms

In addressing the question lsquowhy lustratersquo the evidence for a political manipu-lation hypothesis is lacking As predicted there is some opposition to the policiesby individuals and parties that might be politically disadvantaged There is alsoopposition to the law from the Constitutional Court which has debated both theappropriateness of all retroactive justice measures as well as the constitutionalityof these specific lustration laws However neither of these supports an argumentthat the laws are designed and implemented to advantage a certain party at theexpense of adversaries The fact that the laws are politically motivated and conten-tious does not lead to the conclusion that they are political manipulated

Finally there is some evidence that the late lustration programme was partiallydesigned or timed for international consumption There was substantial signallingon the part of the Romanian president and prime minister about domestic efforts toclean up their oft-cited problems with corruption especially right before the finalaccession negotiations in late 2006128 Therefore it is possible that Romaniarsquospublic posturing might have tipped the EUrsquos assessment of Romania at a crucialmoment in membership considerations However like Poland the expansivescope of the lustration laws could violate freedoms protected by the EuropeanUnionrsquos Court of Justice as well as international obligations under the EuropeanCharter of Human Rights and the International Labor Organization Moreover theEU has explicitly questioned whether lustration conflicts with underlying EUvalues129 Therefore while it is possible that part of the lustration effort was

364 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

designed to appease the international communityrsquos concerns about domesticcorruption problems given the international communityrsquos lack of clear supportregarding the implementation of lustration in other countries this would havebeen a highly risky strategy

In sum the reasons for late lustration in Romania bear a strong resemblance tothe Polish case despite the different political economic and social conditions inthe countries The expansive scope of the Romanian laws the types of positionstargeted the transparency improvements and the proliferation of oversightagencies and mechanisms to monitor implementation of the laws all point to agovernment programme designed to effect broad institutional change as well assymbolic change As with the Polish case lustration and anti-corruption effortshave been conflated in the political sphere There is a link made between continuedcorruption and lack of transitional justice by the governments in the region Lustrationefforts are framed in this anti-corruption narrative and conjoined with economicand political reform efforts This all suggests that the government enacted latelustration in order to address the evidence and perceptions about economicsocial and political problems that have remained unresolved in the transition

Conclusion supporting or undermining democratic transitions

Three findings arise from this comparison of late lustration programmes in Polandand Romania First late lustration looks substantially different from early lustrationprogrammes and has a different more expansive mandate Late lustration is aimedbroadly at positions of public trust spanning political cultural social and economicpositions The programmes are not focused either exclusively or myopically on toppolitical office holders but include positions of trust at national regional and locallevels The criteria for collaborationwere also loosened in both programmes signal-ling a significant change in determining what level of previous secret police or evenregime involvement would lead to employment exclusion The two-pronged expan-sive scope tackles new policy goals including anti-corruption and politicalprivileging concerns The policies are designed to complement and in some casessubstitute for anti-corruption measures Moral cleansing is a dominant theme inboth programmes with a focus on correcting lingering inequalities in terms of econ-omic and political opportunities This resonates with the symbolic change com-ponent of lustrationrsquos goals The similarities of the programmes the transparencysafeguards and the grouping of lustration with other reform efforts suggest aconcerted attempt by the governments to change citizen perceptions of the insti-tutional capacity and integrity of public and quasi-public institutions

This analysis of the structure and intention of late lustration is an importantcontribution to the lustration literature because it highlights the evolving defi-nition of lustration and its intended impact There remains much debate over thegoals of lustration As lustration expands to include non-political positions orprivate sector positions or changes the criteria for determining collaborationthis will impact the very way the term is used in the transitional justice literature

Democratization 365

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

across political economic and social spheres The laws appeared authentic to thepopulation and targeted social inequity corruption and economic inequality ofopportunity that were of concern to the population Both the transparency andaccountability measures included in the new programme were substantial legalchanges that would correct some problems with the implementation of previouslustration programmes While no one piece of evidence about the laws is sufficientto prove that the leadership designed expansive late lustration policies to promotedemocratic consolidation these three components together all affirm the samehypothesis Late lustration laws look like reformist tools designed and framedby the government as a way to create an institutional and symbolic break withthe past in order to further the democratic transition Whether a lustrationprogramme will or could accomplish such a feat remains to be seen

Romania

Romania presents an interesting contrast to Poland Despite its having one of themost pervasive and active secret police presences in CEE lustration has beenalmost non-existent in Romania In terms of the nature of the transition thebloody removal of Ceausescu was a far cry from the Round Table talks inPoland Romania was not part of the Visegrad Group of early reformers receivingthe dubious distinction of lsquothe most corrupt among countries seeking accession tothe [European] Unionrsquo84 (see Table 1) In essence Romania was in a different pol-itical economic and international situation from Poland but opted for a similarlate lustration programme lsquoWhy lustrate so late in the transitionrsquo is an equallycompelling question for Romania

Background

In March 1990 just months after the November 1989 revolution the Proclamationof Timisoara called for lustration of the Communist Party nomeklatura and Secur-itate cadres85 Despite this early popular movement for transitional justice Roma-niarsquos first post-1989 president pardoned members of the Ceausescu family andhigh-ranking Communist Party members thereby foreclosing that possibility86

By 1996 Romania had made the least progress of countries in the region in thescreening of security personnel or pursuing transitional justice87

The first centre-right government came to power from 1996ndash2000 and initiateda series of transitional justice measures In October 1999 the Ticu Dumitrescu Lawwas passed creating the Council for the Study of the Securitate Archives (CNSAS)to oversee the secret police files control public access to this information andoversee compliance with the lustration measures88 The Constitutional Courtrejected a challenge to the constitutionality of the law in November 199989 TheCNSAS was formed but the substantial delays appointing council membersfunding the body giving it a place to function or even providing it with the filesessentially rendered it symbolically important but institutionally ineffectual90

Democratization 359

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

In 2004 the Justice and Truth political coalition pushed forward with arenewed lustration programme supported by President Traian Basescu In 2005there were two parallel lustration initiatives in Parliament designed to build onthis work one more radical proposal from the National Initiative Party and theother a relatively more moderate although still substantially expanded proposalput forward by the National Liberals The National Liberalsrsquo proposal waspassed by the Senate in April 200691 However the Chamber of Deputieswhich has the final say lsquohas shelved the document indefinitelyrsquo92 In December2006 President Basescu formally condemned the communist regime and inmid-May 2007 he once again affirmed his commitment to a comprehensive lustra-tion programme93 At this point it remains unclear what the status of lustrationwill look like

Despite the legal morass the CNSAS has continued to review files and issuerulings Because the lustration law has not been finalized the CNSASrsquos verdictsare largely symbolic although they are believed to have moral value94 Thework of the CNSAS and the lustration laws were challenged by the ConstitutionalCourt in January 2008 which ruled that certain aspects of the CNSASrsquos workassumed juridical attributes that infringed on rights and liberties and were there-fore unconstitutional95 The government adopted an emergency decree to overrulethe Court and allow access to the files thereby allowing the CNSAS to continue itswork96 As with the Polish case the future of the expanded lustration programmeis not yet known

Late lustration in Romania

Despite the murky future of the lustration programme in Romania why latelustration is an important question As in the Polish case the Romanian lawsexpanded the scope and transparency of the laws The scope of the laws increasedin two ways First the list of positions requiring lustration widened affecting poli-ticians at national regional and local levels While major political offices remainon the list such as the president parliament and directors of government insti-tutions local regional positions would also be subject to lustration includingmayors judges inspectors and local officials Major security positions in thepolice and army at all levels were also included In addition to traditionally under-stood political positions the media the clergy and academics would also besubject to lustration Moreover managers of central or local cultural institutionswould require lustration as would other cultural figures and persons in lsquopositionsof public trustrsquo97 The expansion of lustration to quasi-private sector positions aswell as cultural positions suggested that the new laws were broadly aimed at pos-itions in civil society

The definition of collaboration also expanded the scope of the proceedingsCollaboration sufficient to preclude employment possibilities includes active par-ticipation in the Romanian Communist Party and the Union of Communist Youthat national regional or county levels Work with the Council of Socialist Culture

360 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and Education in any propaganda capacity for example editors or secretaries inpress institutions would be prohibitive Professors in party schools would beexcluded as would individuals who held ranking positions in banks or whoworked in foreign currency operations Finally former Securitate officersmembers of the militia and former judges would also be affected by the lustrationlaw In this way both the scope of positions and the scope of collaborationexpanded Notably collaboration does not hinge on secret police collaborationthereby suggesting that the traditional definition of lustration no longer fits withthe expansive nature of the proposed vetting programme

The expanded scope has increased the consequent size of the vetting net 135million files have been transferred to the Council for review and declassifying98

Given the estimated eight miles of files it could take ten years for the files to berevealed99 This would extend the process of lustration substantially into the futureand refocus the laws away from a purely truth-revelation exercise

In addition to the substantial changes in the scope of the laws the governmentdesigned the new law to improve the transparency of the proceedings by removingthe classified status from the archives of the Central Committee of the RomanianCommunist Party and releasing the Securitate files to CNSAS100 This openedaccess to information and freed files that had previously been classified for 40years Under the previous lustration programmes only those files classified aslsquopolitical policersquo meaning people who collaborated with the Securitate could belustrated Part of the new lustration law involves potentially reclassifying allfiles as lsquopolitical policersquo qualitatively expanding the scope of information avail-able and therefore the depth and transparency of the lustration procedures101

Moreover there are a number of actors now involved in the lustration processThe process is not centralized or controlled by a single locus of power A multi-plication of institutions became involved with the truth revelationinvestigationprocess including two truth commissions a presidential commission and agovernment institute as well as smaller fact-checking commissions which inde-pendently developed to verify the work of the national investigation commis-sions102 These multiple levels of accountability also suggest somethingfundamentally different about the transparency of the new lustration efforts

Why lustrate

The question lsquowhy lustratersquo is equally compelling in the Romanian case Does theRomanian case confirm a political competition hypothesis better than the Polishcase What national or international conditions might explain late lustration inRomania

First the scope of the new lustration programme in Romania was similar to thePolish case The types of positions targeted went well beyond political elitesbroadly addressing so called lsquopositions of trustrsquo The government defined thesepositions of trust to include local and regional political and economic officialsand persons in positions of cultural or moral authority such as academics and

Democratization 361

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

journalists In terms of institutional impact it was designed for a maximal effect onpublic and quasi-public institutions at all levels The laws appear to target theperceived problem of low levels of bureaucratic change The laws do not ignoretop-ranking political office holders but they are not focused on this group exclu-sively The wide purview of the laws suggests a larger reformist strategy aimed atboth public institutions and the civil society institutions that support them More-over the lustration programme explicitly addresses moral values and public trustthereby tapping into the hypothesized symbolic intention of the laws in furtheringthe process of democratic consolidation

The targeting of the clergy for lustration in the Romanian case is an example ofthe symbolic nature of the programme The clergy has admitted to widespread col-laboration with the Securitate and has been included in the list of positions of trustto be lustrated103 The clergy is not directly affiliated or supported by a politicalbloc therefore lustrating this category of individuals cannot be explained as afunction of gaining direct political advantage on the part of the implementingparty Moreover lustrating the clergy could negatively impact the party inpower since the church enjoys the highest levels of public trust of Romaniarsquospublic institutions (83)104 The targeting of the clergy fits with the moral cleans-ing narrative being put forth to partially explain lustration If lustration is hypoth-esized to catalyze both institutional and symbolic change it would include thesetypes of positions with moral resonance

Second if the new lustration law was designed to support the democratic tran-sition it would increase transparency and accountability in order to reduce thepotential for the laws to be politically manipulated The declassification of all cat-egories of files and the strengthening of the power of the CNSAS suggest an attemptto correct information management problems105 As mentioned there are manyagents involved with the implementation of this programme suggesting onceagain a lack of party orchestration of the process for direct political gain In conjunc-tion with the multiple sources monitoring lustration there is a push by the govern-ment for more media openness with respect to politics as a whole and lustration inparticular106 This also supports an argument that the government is trying toincrease transparency in order to improve the legality and legitimacy of the process

Third Romaniarsquos lustration efforts were bundled with other reform pro-grammes including constitutional reforms reformation of the political classchanges in voting structure to be more inclusive of minorities and national secur-ity changes suggesting a larger reformation mandate107 The lustration law wasproposed and circulated in Parliament at the same time as an anti-corruptionlaw The anti-corruption proposal got caught in political fighting and expiredbefore it could be acted upon108 Additionally the lustration laws were adoptedin conjunction with a draft law reforming the intelligence service109 After1989 approximately 1600 former Securitate officers ended up holding keyposts in the intelligence service110 As such the packaging of lustration withinthe context of broader economic political social and security measures pointsto a larger government reform mandate

362 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Romania suffers from low levels of citizen trust in government and high levelsof corruption (see Table 1) Corruption thrives in all spheres in Romania and it isdirectly tied to the political class Perceptions of corruption are fuelled by the per-vasive belief that the people who contributed to the previous totalitarian regimecontinue to obtain legal and business advantages with 80 of Romanianspolled thinking that corruption levels grew or stagnated even after joiningEU111 Since public office holders and industry leaders are largely drawn fromformer communist elites or Securitate informers there is a belief that the lack ofretroactive justice measures has perpetuated economic and political inequalitiesThe current laws directly address the perceptions of economic inequality andinjustice by focusing on the lustration of economic positions of power includingfinancial institutions By lustrating positions of both economic and political poweracross public and quasi-public institutions the new laws take on the evidence thatthe former secret service networks remain in top political economic and socialpositions and are using their positions for personal gains

The role of former Securitate officers in Romanian society today remains asubject of public anxiety As Vladimir Tismaneanu the head of the PresidentialCommission for the Study of the Communist Dictatorship in Romania notedlsquopeople were perplexed noticing the thriving careers of proven Securitate collab-oratorsrsquo112 The Securitate have maintained powerful ties to business elites in thenew regime lsquoRomanian Securitate agents and activists were the first to benefitfrom an unregulated transition toward capitalism and a multiparty systemrsquo113 In2006 the President of the Institute for the Investigation of the Crimes of Commun-ism summed up the nature of regime change in Romania lsquoIn rsquo89 only Commun-ism was killed but the former state security and Communist Party chiefs took theeconomic powerrsquo114 The continued involvement of former Securitate officers inpolitical and economic networks fuels citizen perceptions that the transition wasincomplete

Finally public opinion on lustration is mixed reflecting a general sense of con-fusion about what will correct the problems in Romanian society Student organiz-ations have called for the lustration of deans and academics and unions havelobbied for lustration of their leaders and representatives115 A civic associationof journalists has pushed for lustration of the media116 In early 2006 50 of citi-zens polled wanted lustration to immediately come into force andmore than half ofcitizens wanted the archives made publicly accessible on the internet117 Howeveronly 43 thought lustration might be useful and 47 thought it might have noimpact whatsoever118 A similar poll later in 2006 showed that 36 of personspolled felt that society would be lsquocleaner and more honestrsquo after lustration with33 showing an interest in revelations and 47 showing no interest at all119

Given the mixed views on the impact of lustration it does not appear likely thatthe party in power designed extensive and controversial lustration laws to tapinto populist sentiments in order to gain a short term direct political advantage

However a political manipulation alternative hypothesis remains compellingin the context of Romania Domestic political fights over lustration and interparty

Democratization 363

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

accusations of collaboration have impacted all Romaniarsquos lustration efforts andcontinue to block the implementation of ratified laws120 The 2006 lustrationlaw proposal turned into a hotly contested and morally charged national debatepassing in the Senate by a single vote and largely opposed by the politicalparties who were Communist Party holdovers121 Lustration changes wereexpected to affect at least 100 current MPs in Parliament which would havesubstantially changed the parliamentary balance of power122 These events areall consistent with an explanation of lustration as a by-product of competitionbetween political parties

Nonetheless the evidence does not fit neatly into a party politics explanationThe primary supporters of lustration the National Liberal Party were politicallydisadvantaged by the laws123 They have been the party most affected by collab-oration accusations with top Liberal officials expelled from the party includingtheir very popular minister of culture Mona Musca124 Basescursquos lsquoexplicit andcategoricalrsquo condemnation of the previous communist system and its record of atro-cities was also a politically precarious position to take in favour of lustration andtransparency125 President Basescursquos speech was received by a divided and hostileParliament and a December 2007 Public Opinion Barometer poll in Romaniashowed citizens still considered Ceausescu was the best political leader thatRomania ever had126 Basescu pushed forward with the legal initiative andavoided an impeachment attempt only after a popular referendum127 This evi-dence does not fit with a political manipulation hypothesis especially given thehigh potential risk for the president and the party initiating the reforms

In addressing the question lsquowhy lustratersquo the evidence for a political manipu-lation hypothesis is lacking As predicted there is some opposition to the policiesby individuals and parties that might be politically disadvantaged There is alsoopposition to the law from the Constitutional Court which has debated both theappropriateness of all retroactive justice measures as well as the constitutionalityof these specific lustration laws However neither of these supports an argumentthat the laws are designed and implemented to advantage a certain party at theexpense of adversaries The fact that the laws are politically motivated and conten-tious does not lead to the conclusion that they are political manipulated

Finally there is some evidence that the late lustration programme was partiallydesigned or timed for international consumption There was substantial signallingon the part of the Romanian president and prime minister about domestic efforts toclean up their oft-cited problems with corruption especially right before the finalaccession negotiations in late 2006128 Therefore it is possible that Romaniarsquospublic posturing might have tipped the EUrsquos assessment of Romania at a crucialmoment in membership considerations However like Poland the expansivescope of the lustration laws could violate freedoms protected by the EuropeanUnionrsquos Court of Justice as well as international obligations under the EuropeanCharter of Human Rights and the International Labor Organization Moreover theEU has explicitly questioned whether lustration conflicts with underlying EUvalues129 Therefore while it is possible that part of the lustration effort was

364 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

designed to appease the international communityrsquos concerns about domesticcorruption problems given the international communityrsquos lack of clear supportregarding the implementation of lustration in other countries this would havebeen a highly risky strategy

In sum the reasons for late lustration in Romania bear a strong resemblance tothe Polish case despite the different political economic and social conditions inthe countries The expansive scope of the Romanian laws the types of positionstargeted the transparency improvements and the proliferation of oversightagencies and mechanisms to monitor implementation of the laws all point to agovernment programme designed to effect broad institutional change as well assymbolic change As with the Polish case lustration and anti-corruption effortshave been conflated in the political sphere There is a link made between continuedcorruption and lack of transitional justice by the governments in the region Lustrationefforts are framed in this anti-corruption narrative and conjoined with economicand political reform efforts This all suggests that the government enacted latelustration in order to address the evidence and perceptions about economicsocial and political problems that have remained unresolved in the transition

Conclusion supporting or undermining democratic transitions

Three findings arise from this comparison of late lustration programmes in Polandand Romania First late lustration looks substantially different from early lustrationprogrammes and has a different more expansive mandate Late lustration is aimedbroadly at positions of public trust spanning political cultural social and economicpositions The programmes are not focused either exclusively or myopically on toppolitical office holders but include positions of trust at national regional and locallevels The criteria for collaborationwere also loosened in both programmes signal-ling a significant change in determining what level of previous secret police or evenregime involvement would lead to employment exclusion The two-pronged expan-sive scope tackles new policy goals including anti-corruption and politicalprivileging concerns The policies are designed to complement and in some casessubstitute for anti-corruption measures Moral cleansing is a dominant theme inboth programmes with a focus on correcting lingering inequalities in terms of econ-omic and political opportunities This resonates with the symbolic change com-ponent of lustrationrsquos goals The similarities of the programmes the transparencysafeguards and the grouping of lustration with other reform efforts suggest aconcerted attempt by the governments to change citizen perceptions of the insti-tutional capacity and integrity of public and quasi-public institutions

This analysis of the structure and intention of late lustration is an importantcontribution to the lustration literature because it highlights the evolving defi-nition of lustration and its intended impact There remains much debate over thegoals of lustration As lustration expands to include non-political positions orprivate sector positions or changes the criteria for determining collaborationthis will impact the very way the term is used in the transitional justice literature

Democratization 365

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

In 2004 the Justice and Truth political coalition pushed forward with arenewed lustration programme supported by President Traian Basescu In 2005there were two parallel lustration initiatives in Parliament designed to build onthis work one more radical proposal from the National Initiative Party and theother a relatively more moderate although still substantially expanded proposalput forward by the National Liberals The National Liberalsrsquo proposal waspassed by the Senate in April 200691 However the Chamber of Deputieswhich has the final say lsquohas shelved the document indefinitelyrsquo92 In December2006 President Basescu formally condemned the communist regime and inmid-May 2007 he once again affirmed his commitment to a comprehensive lustra-tion programme93 At this point it remains unclear what the status of lustrationwill look like

Despite the legal morass the CNSAS has continued to review files and issuerulings Because the lustration law has not been finalized the CNSASrsquos verdictsare largely symbolic although they are believed to have moral value94 Thework of the CNSAS and the lustration laws were challenged by the ConstitutionalCourt in January 2008 which ruled that certain aspects of the CNSASrsquos workassumed juridical attributes that infringed on rights and liberties and were there-fore unconstitutional95 The government adopted an emergency decree to overrulethe Court and allow access to the files thereby allowing the CNSAS to continue itswork96 As with the Polish case the future of the expanded lustration programmeis not yet known

Late lustration in Romania

Despite the murky future of the lustration programme in Romania why latelustration is an important question As in the Polish case the Romanian lawsexpanded the scope and transparency of the laws The scope of the laws increasedin two ways First the list of positions requiring lustration widened affecting poli-ticians at national regional and local levels While major political offices remainon the list such as the president parliament and directors of government insti-tutions local regional positions would also be subject to lustration includingmayors judges inspectors and local officials Major security positions in thepolice and army at all levels were also included In addition to traditionally under-stood political positions the media the clergy and academics would also besubject to lustration Moreover managers of central or local cultural institutionswould require lustration as would other cultural figures and persons in lsquopositionsof public trustrsquo97 The expansion of lustration to quasi-private sector positions aswell as cultural positions suggested that the new laws were broadly aimed at pos-itions in civil society

The definition of collaboration also expanded the scope of the proceedingsCollaboration sufficient to preclude employment possibilities includes active par-ticipation in the Romanian Communist Party and the Union of Communist Youthat national regional or county levels Work with the Council of Socialist Culture

360 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and Education in any propaganda capacity for example editors or secretaries inpress institutions would be prohibitive Professors in party schools would beexcluded as would individuals who held ranking positions in banks or whoworked in foreign currency operations Finally former Securitate officersmembers of the militia and former judges would also be affected by the lustrationlaw In this way both the scope of positions and the scope of collaborationexpanded Notably collaboration does not hinge on secret police collaborationthereby suggesting that the traditional definition of lustration no longer fits withthe expansive nature of the proposed vetting programme

The expanded scope has increased the consequent size of the vetting net 135million files have been transferred to the Council for review and declassifying98

Given the estimated eight miles of files it could take ten years for the files to berevealed99 This would extend the process of lustration substantially into the futureand refocus the laws away from a purely truth-revelation exercise

In addition to the substantial changes in the scope of the laws the governmentdesigned the new law to improve the transparency of the proceedings by removingthe classified status from the archives of the Central Committee of the RomanianCommunist Party and releasing the Securitate files to CNSAS100 This openedaccess to information and freed files that had previously been classified for 40years Under the previous lustration programmes only those files classified aslsquopolitical policersquo meaning people who collaborated with the Securitate could belustrated Part of the new lustration law involves potentially reclassifying allfiles as lsquopolitical policersquo qualitatively expanding the scope of information avail-able and therefore the depth and transparency of the lustration procedures101

Moreover there are a number of actors now involved in the lustration processThe process is not centralized or controlled by a single locus of power A multi-plication of institutions became involved with the truth revelationinvestigationprocess including two truth commissions a presidential commission and agovernment institute as well as smaller fact-checking commissions which inde-pendently developed to verify the work of the national investigation commis-sions102 These multiple levels of accountability also suggest somethingfundamentally different about the transparency of the new lustration efforts

Why lustrate

The question lsquowhy lustratersquo is equally compelling in the Romanian case Does theRomanian case confirm a political competition hypothesis better than the Polishcase What national or international conditions might explain late lustration inRomania

First the scope of the new lustration programme in Romania was similar to thePolish case The types of positions targeted went well beyond political elitesbroadly addressing so called lsquopositions of trustrsquo The government defined thesepositions of trust to include local and regional political and economic officialsand persons in positions of cultural or moral authority such as academics and

Democratization 361

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

journalists In terms of institutional impact it was designed for a maximal effect onpublic and quasi-public institutions at all levels The laws appear to target theperceived problem of low levels of bureaucratic change The laws do not ignoretop-ranking political office holders but they are not focused on this group exclu-sively The wide purview of the laws suggests a larger reformist strategy aimed atboth public institutions and the civil society institutions that support them More-over the lustration programme explicitly addresses moral values and public trustthereby tapping into the hypothesized symbolic intention of the laws in furtheringthe process of democratic consolidation

The targeting of the clergy for lustration in the Romanian case is an example ofthe symbolic nature of the programme The clergy has admitted to widespread col-laboration with the Securitate and has been included in the list of positions of trustto be lustrated103 The clergy is not directly affiliated or supported by a politicalbloc therefore lustrating this category of individuals cannot be explained as afunction of gaining direct political advantage on the part of the implementingparty Moreover lustrating the clergy could negatively impact the party inpower since the church enjoys the highest levels of public trust of Romaniarsquospublic institutions (83)104 The targeting of the clergy fits with the moral cleans-ing narrative being put forth to partially explain lustration If lustration is hypoth-esized to catalyze both institutional and symbolic change it would include thesetypes of positions with moral resonance

Second if the new lustration law was designed to support the democratic tran-sition it would increase transparency and accountability in order to reduce thepotential for the laws to be politically manipulated The declassification of all cat-egories of files and the strengthening of the power of the CNSAS suggest an attemptto correct information management problems105 As mentioned there are manyagents involved with the implementation of this programme suggesting onceagain a lack of party orchestration of the process for direct political gain In conjunc-tion with the multiple sources monitoring lustration there is a push by the govern-ment for more media openness with respect to politics as a whole and lustration inparticular106 This also supports an argument that the government is trying toincrease transparency in order to improve the legality and legitimacy of the process

Third Romaniarsquos lustration efforts were bundled with other reform pro-grammes including constitutional reforms reformation of the political classchanges in voting structure to be more inclusive of minorities and national secur-ity changes suggesting a larger reformation mandate107 The lustration law wasproposed and circulated in Parliament at the same time as an anti-corruptionlaw The anti-corruption proposal got caught in political fighting and expiredbefore it could be acted upon108 Additionally the lustration laws were adoptedin conjunction with a draft law reforming the intelligence service109 After1989 approximately 1600 former Securitate officers ended up holding keyposts in the intelligence service110 As such the packaging of lustration withinthe context of broader economic political social and security measures pointsto a larger government reform mandate

362 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Romania suffers from low levels of citizen trust in government and high levelsof corruption (see Table 1) Corruption thrives in all spheres in Romania and it isdirectly tied to the political class Perceptions of corruption are fuelled by the per-vasive belief that the people who contributed to the previous totalitarian regimecontinue to obtain legal and business advantages with 80 of Romanianspolled thinking that corruption levels grew or stagnated even after joiningEU111 Since public office holders and industry leaders are largely drawn fromformer communist elites or Securitate informers there is a belief that the lack ofretroactive justice measures has perpetuated economic and political inequalitiesThe current laws directly address the perceptions of economic inequality andinjustice by focusing on the lustration of economic positions of power includingfinancial institutions By lustrating positions of both economic and political poweracross public and quasi-public institutions the new laws take on the evidence thatthe former secret service networks remain in top political economic and socialpositions and are using their positions for personal gains

The role of former Securitate officers in Romanian society today remains asubject of public anxiety As Vladimir Tismaneanu the head of the PresidentialCommission for the Study of the Communist Dictatorship in Romania notedlsquopeople were perplexed noticing the thriving careers of proven Securitate collab-oratorsrsquo112 The Securitate have maintained powerful ties to business elites in thenew regime lsquoRomanian Securitate agents and activists were the first to benefitfrom an unregulated transition toward capitalism and a multiparty systemrsquo113 In2006 the President of the Institute for the Investigation of the Crimes of Commun-ism summed up the nature of regime change in Romania lsquoIn rsquo89 only Commun-ism was killed but the former state security and Communist Party chiefs took theeconomic powerrsquo114 The continued involvement of former Securitate officers inpolitical and economic networks fuels citizen perceptions that the transition wasincomplete

Finally public opinion on lustration is mixed reflecting a general sense of con-fusion about what will correct the problems in Romanian society Student organiz-ations have called for the lustration of deans and academics and unions havelobbied for lustration of their leaders and representatives115 A civic associationof journalists has pushed for lustration of the media116 In early 2006 50 of citi-zens polled wanted lustration to immediately come into force andmore than half ofcitizens wanted the archives made publicly accessible on the internet117 Howeveronly 43 thought lustration might be useful and 47 thought it might have noimpact whatsoever118 A similar poll later in 2006 showed that 36 of personspolled felt that society would be lsquocleaner and more honestrsquo after lustration with33 showing an interest in revelations and 47 showing no interest at all119

Given the mixed views on the impact of lustration it does not appear likely thatthe party in power designed extensive and controversial lustration laws to tapinto populist sentiments in order to gain a short term direct political advantage

However a political manipulation alternative hypothesis remains compellingin the context of Romania Domestic political fights over lustration and interparty

Democratization 363

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

accusations of collaboration have impacted all Romaniarsquos lustration efforts andcontinue to block the implementation of ratified laws120 The 2006 lustrationlaw proposal turned into a hotly contested and morally charged national debatepassing in the Senate by a single vote and largely opposed by the politicalparties who were Communist Party holdovers121 Lustration changes wereexpected to affect at least 100 current MPs in Parliament which would havesubstantially changed the parliamentary balance of power122 These events areall consistent with an explanation of lustration as a by-product of competitionbetween political parties

Nonetheless the evidence does not fit neatly into a party politics explanationThe primary supporters of lustration the National Liberal Party were politicallydisadvantaged by the laws123 They have been the party most affected by collab-oration accusations with top Liberal officials expelled from the party includingtheir very popular minister of culture Mona Musca124 Basescursquos lsquoexplicit andcategoricalrsquo condemnation of the previous communist system and its record of atro-cities was also a politically precarious position to take in favour of lustration andtransparency125 President Basescursquos speech was received by a divided and hostileParliament and a December 2007 Public Opinion Barometer poll in Romaniashowed citizens still considered Ceausescu was the best political leader thatRomania ever had126 Basescu pushed forward with the legal initiative andavoided an impeachment attempt only after a popular referendum127 This evi-dence does not fit with a political manipulation hypothesis especially given thehigh potential risk for the president and the party initiating the reforms

In addressing the question lsquowhy lustratersquo the evidence for a political manipu-lation hypothesis is lacking As predicted there is some opposition to the policiesby individuals and parties that might be politically disadvantaged There is alsoopposition to the law from the Constitutional Court which has debated both theappropriateness of all retroactive justice measures as well as the constitutionalityof these specific lustration laws However neither of these supports an argumentthat the laws are designed and implemented to advantage a certain party at theexpense of adversaries The fact that the laws are politically motivated and conten-tious does not lead to the conclusion that they are political manipulated

Finally there is some evidence that the late lustration programme was partiallydesigned or timed for international consumption There was substantial signallingon the part of the Romanian president and prime minister about domestic efforts toclean up their oft-cited problems with corruption especially right before the finalaccession negotiations in late 2006128 Therefore it is possible that Romaniarsquospublic posturing might have tipped the EUrsquos assessment of Romania at a crucialmoment in membership considerations However like Poland the expansivescope of the lustration laws could violate freedoms protected by the EuropeanUnionrsquos Court of Justice as well as international obligations under the EuropeanCharter of Human Rights and the International Labor Organization Moreover theEU has explicitly questioned whether lustration conflicts with underlying EUvalues129 Therefore while it is possible that part of the lustration effort was

364 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

designed to appease the international communityrsquos concerns about domesticcorruption problems given the international communityrsquos lack of clear supportregarding the implementation of lustration in other countries this would havebeen a highly risky strategy

In sum the reasons for late lustration in Romania bear a strong resemblance tothe Polish case despite the different political economic and social conditions inthe countries The expansive scope of the Romanian laws the types of positionstargeted the transparency improvements and the proliferation of oversightagencies and mechanisms to monitor implementation of the laws all point to agovernment programme designed to effect broad institutional change as well assymbolic change As with the Polish case lustration and anti-corruption effortshave been conflated in the political sphere There is a link made between continuedcorruption and lack of transitional justice by the governments in the region Lustrationefforts are framed in this anti-corruption narrative and conjoined with economicand political reform efforts This all suggests that the government enacted latelustration in order to address the evidence and perceptions about economicsocial and political problems that have remained unresolved in the transition

Conclusion supporting or undermining democratic transitions

Three findings arise from this comparison of late lustration programmes in Polandand Romania First late lustration looks substantially different from early lustrationprogrammes and has a different more expansive mandate Late lustration is aimedbroadly at positions of public trust spanning political cultural social and economicpositions The programmes are not focused either exclusively or myopically on toppolitical office holders but include positions of trust at national regional and locallevels The criteria for collaborationwere also loosened in both programmes signal-ling a significant change in determining what level of previous secret police or evenregime involvement would lead to employment exclusion The two-pronged expan-sive scope tackles new policy goals including anti-corruption and politicalprivileging concerns The policies are designed to complement and in some casessubstitute for anti-corruption measures Moral cleansing is a dominant theme inboth programmes with a focus on correcting lingering inequalities in terms of econ-omic and political opportunities This resonates with the symbolic change com-ponent of lustrationrsquos goals The similarities of the programmes the transparencysafeguards and the grouping of lustration with other reform efforts suggest aconcerted attempt by the governments to change citizen perceptions of the insti-tutional capacity and integrity of public and quasi-public institutions

This analysis of the structure and intention of late lustration is an importantcontribution to the lustration literature because it highlights the evolving defi-nition of lustration and its intended impact There remains much debate over thegoals of lustration As lustration expands to include non-political positions orprivate sector positions or changes the criteria for determining collaborationthis will impact the very way the term is used in the transitional justice literature

Democratization 365

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

and Education in any propaganda capacity for example editors or secretaries inpress institutions would be prohibitive Professors in party schools would beexcluded as would individuals who held ranking positions in banks or whoworked in foreign currency operations Finally former Securitate officersmembers of the militia and former judges would also be affected by the lustrationlaw In this way both the scope of positions and the scope of collaborationexpanded Notably collaboration does not hinge on secret police collaborationthereby suggesting that the traditional definition of lustration no longer fits withthe expansive nature of the proposed vetting programme

The expanded scope has increased the consequent size of the vetting net 135million files have been transferred to the Council for review and declassifying98

Given the estimated eight miles of files it could take ten years for the files to berevealed99 This would extend the process of lustration substantially into the futureand refocus the laws away from a purely truth-revelation exercise

In addition to the substantial changes in the scope of the laws the governmentdesigned the new law to improve the transparency of the proceedings by removingthe classified status from the archives of the Central Committee of the RomanianCommunist Party and releasing the Securitate files to CNSAS100 This openedaccess to information and freed files that had previously been classified for 40years Under the previous lustration programmes only those files classified aslsquopolitical policersquo meaning people who collaborated with the Securitate could belustrated Part of the new lustration law involves potentially reclassifying allfiles as lsquopolitical policersquo qualitatively expanding the scope of information avail-able and therefore the depth and transparency of the lustration procedures101

Moreover there are a number of actors now involved in the lustration processThe process is not centralized or controlled by a single locus of power A multi-plication of institutions became involved with the truth revelationinvestigationprocess including two truth commissions a presidential commission and agovernment institute as well as smaller fact-checking commissions which inde-pendently developed to verify the work of the national investigation commis-sions102 These multiple levels of accountability also suggest somethingfundamentally different about the transparency of the new lustration efforts

Why lustrate

The question lsquowhy lustratersquo is equally compelling in the Romanian case Does theRomanian case confirm a political competition hypothesis better than the Polishcase What national or international conditions might explain late lustration inRomania

First the scope of the new lustration programme in Romania was similar to thePolish case The types of positions targeted went well beyond political elitesbroadly addressing so called lsquopositions of trustrsquo The government defined thesepositions of trust to include local and regional political and economic officialsand persons in positions of cultural or moral authority such as academics and

Democratization 361

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

journalists In terms of institutional impact it was designed for a maximal effect onpublic and quasi-public institutions at all levels The laws appear to target theperceived problem of low levels of bureaucratic change The laws do not ignoretop-ranking political office holders but they are not focused on this group exclu-sively The wide purview of the laws suggests a larger reformist strategy aimed atboth public institutions and the civil society institutions that support them More-over the lustration programme explicitly addresses moral values and public trustthereby tapping into the hypothesized symbolic intention of the laws in furtheringthe process of democratic consolidation

The targeting of the clergy for lustration in the Romanian case is an example ofthe symbolic nature of the programme The clergy has admitted to widespread col-laboration with the Securitate and has been included in the list of positions of trustto be lustrated103 The clergy is not directly affiliated or supported by a politicalbloc therefore lustrating this category of individuals cannot be explained as afunction of gaining direct political advantage on the part of the implementingparty Moreover lustrating the clergy could negatively impact the party inpower since the church enjoys the highest levels of public trust of Romaniarsquospublic institutions (83)104 The targeting of the clergy fits with the moral cleans-ing narrative being put forth to partially explain lustration If lustration is hypoth-esized to catalyze both institutional and symbolic change it would include thesetypes of positions with moral resonance

Second if the new lustration law was designed to support the democratic tran-sition it would increase transparency and accountability in order to reduce thepotential for the laws to be politically manipulated The declassification of all cat-egories of files and the strengthening of the power of the CNSAS suggest an attemptto correct information management problems105 As mentioned there are manyagents involved with the implementation of this programme suggesting onceagain a lack of party orchestration of the process for direct political gain In conjunc-tion with the multiple sources monitoring lustration there is a push by the govern-ment for more media openness with respect to politics as a whole and lustration inparticular106 This also supports an argument that the government is trying toincrease transparency in order to improve the legality and legitimacy of the process

Third Romaniarsquos lustration efforts were bundled with other reform pro-grammes including constitutional reforms reformation of the political classchanges in voting structure to be more inclusive of minorities and national secur-ity changes suggesting a larger reformation mandate107 The lustration law wasproposed and circulated in Parliament at the same time as an anti-corruptionlaw The anti-corruption proposal got caught in political fighting and expiredbefore it could be acted upon108 Additionally the lustration laws were adoptedin conjunction with a draft law reforming the intelligence service109 After1989 approximately 1600 former Securitate officers ended up holding keyposts in the intelligence service110 As such the packaging of lustration withinthe context of broader economic political social and security measures pointsto a larger government reform mandate

362 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Romania suffers from low levels of citizen trust in government and high levelsof corruption (see Table 1) Corruption thrives in all spheres in Romania and it isdirectly tied to the political class Perceptions of corruption are fuelled by the per-vasive belief that the people who contributed to the previous totalitarian regimecontinue to obtain legal and business advantages with 80 of Romanianspolled thinking that corruption levels grew or stagnated even after joiningEU111 Since public office holders and industry leaders are largely drawn fromformer communist elites or Securitate informers there is a belief that the lack ofretroactive justice measures has perpetuated economic and political inequalitiesThe current laws directly address the perceptions of economic inequality andinjustice by focusing on the lustration of economic positions of power includingfinancial institutions By lustrating positions of both economic and political poweracross public and quasi-public institutions the new laws take on the evidence thatthe former secret service networks remain in top political economic and socialpositions and are using their positions for personal gains

The role of former Securitate officers in Romanian society today remains asubject of public anxiety As Vladimir Tismaneanu the head of the PresidentialCommission for the Study of the Communist Dictatorship in Romania notedlsquopeople were perplexed noticing the thriving careers of proven Securitate collab-oratorsrsquo112 The Securitate have maintained powerful ties to business elites in thenew regime lsquoRomanian Securitate agents and activists were the first to benefitfrom an unregulated transition toward capitalism and a multiparty systemrsquo113 In2006 the President of the Institute for the Investigation of the Crimes of Commun-ism summed up the nature of regime change in Romania lsquoIn rsquo89 only Commun-ism was killed but the former state security and Communist Party chiefs took theeconomic powerrsquo114 The continued involvement of former Securitate officers inpolitical and economic networks fuels citizen perceptions that the transition wasincomplete

Finally public opinion on lustration is mixed reflecting a general sense of con-fusion about what will correct the problems in Romanian society Student organiz-ations have called for the lustration of deans and academics and unions havelobbied for lustration of their leaders and representatives115 A civic associationof journalists has pushed for lustration of the media116 In early 2006 50 of citi-zens polled wanted lustration to immediately come into force andmore than half ofcitizens wanted the archives made publicly accessible on the internet117 Howeveronly 43 thought lustration might be useful and 47 thought it might have noimpact whatsoever118 A similar poll later in 2006 showed that 36 of personspolled felt that society would be lsquocleaner and more honestrsquo after lustration with33 showing an interest in revelations and 47 showing no interest at all119

Given the mixed views on the impact of lustration it does not appear likely thatthe party in power designed extensive and controversial lustration laws to tapinto populist sentiments in order to gain a short term direct political advantage

However a political manipulation alternative hypothesis remains compellingin the context of Romania Domestic political fights over lustration and interparty

Democratization 363

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

accusations of collaboration have impacted all Romaniarsquos lustration efforts andcontinue to block the implementation of ratified laws120 The 2006 lustrationlaw proposal turned into a hotly contested and morally charged national debatepassing in the Senate by a single vote and largely opposed by the politicalparties who were Communist Party holdovers121 Lustration changes wereexpected to affect at least 100 current MPs in Parliament which would havesubstantially changed the parliamentary balance of power122 These events areall consistent with an explanation of lustration as a by-product of competitionbetween political parties

Nonetheless the evidence does not fit neatly into a party politics explanationThe primary supporters of lustration the National Liberal Party were politicallydisadvantaged by the laws123 They have been the party most affected by collab-oration accusations with top Liberal officials expelled from the party includingtheir very popular minister of culture Mona Musca124 Basescursquos lsquoexplicit andcategoricalrsquo condemnation of the previous communist system and its record of atro-cities was also a politically precarious position to take in favour of lustration andtransparency125 President Basescursquos speech was received by a divided and hostileParliament and a December 2007 Public Opinion Barometer poll in Romaniashowed citizens still considered Ceausescu was the best political leader thatRomania ever had126 Basescu pushed forward with the legal initiative andavoided an impeachment attempt only after a popular referendum127 This evi-dence does not fit with a political manipulation hypothesis especially given thehigh potential risk for the president and the party initiating the reforms

In addressing the question lsquowhy lustratersquo the evidence for a political manipu-lation hypothesis is lacking As predicted there is some opposition to the policiesby individuals and parties that might be politically disadvantaged There is alsoopposition to the law from the Constitutional Court which has debated both theappropriateness of all retroactive justice measures as well as the constitutionalityof these specific lustration laws However neither of these supports an argumentthat the laws are designed and implemented to advantage a certain party at theexpense of adversaries The fact that the laws are politically motivated and conten-tious does not lead to the conclusion that they are political manipulated

Finally there is some evidence that the late lustration programme was partiallydesigned or timed for international consumption There was substantial signallingon the part of the Romanian president and prime minister about domestic efforts toclean up their oft-cited problems with corruption especially right before the finalaccession negotiations in late 2006128 Therefore it is possible that Romaniarsquospublic posturing might have tipped the EUrsquos assessment of Romania at a crucialmoment in membership considerations However like Poland the expansivescope of the lustration laws could violate freedoms protected by the EuropeanUnionrsquos Court of Justice as well as international obligations under the EuropeanCharter of Human Rights and the International Labor Organization Moreover theEU has explicitly questioned whether lustration conflicts with underlying EUvalues129 Therefore while it is possible that part of the lustration effort was

364 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

designed to appease the international communityrsquos concerns about domesticcorruption problems given the international communityrsquos lack of clear supportregarding the implementation of lustration in other countries this would havebeen a highly risky strategy

In sum the reasons for late lustration in Romania bear a strong resemblance tothe Polish case despite the different political economic and social conditions inthe countries The expansive scope of the Romanian laws the types of positionstargeted the transparency improvements and the proliferation of oversightagencies and mechanisms to monitor implementation of the laws all point to agovernment programme designed to effect broad institutional change as well assymbolic change As with the Polish case lustration and anti-corruption effortshave been conflated in the political sphere There is a link made between continuedcorruption and lack of transitional justice by the governments in the region Lustrationefforts are framed in this anti-corruption narrative and conjoined with economicand political reform efforts This all suggests that the government enacted latelustration in order to address the evidence and perceptions about economicsocial and political problems that have remained unresolved in the transition

Conclusion supporting or undermining democratic transitions

Three findings arise from this comparison of late lustration programmes in Polandand Romania First late lustration looks substantially different from early lustrationprogrammes and has a different more expansive mandate Late lustration is aimedbroadly at positions of public trust spanning political cultural social and economicpositions The programmes are not focused either exclusively or myopically on toppolitical office holders but include positions of trust at national regional and locallevels The criteria for collaborationwere also loosened in both programmes signal-ling a significant change in determining what level of previous secret police or evenregime involvement would lead to employment exclusion The two-pronged expan-sive scope tackles new policy goals including anti-corruption and politicalprivileging concerns The policies are designed to complement and in some casessubstitute for anti-corruption measures Moral cleansing is a dominant theme inboth programmes with a focus on correcting lingering inequalities in terms of econ-omic and political opportunities This resonates with the symbolic change com-ponent of lustrationrsquos goals The similarities of the programmes the transparencysafeguards and the grouping of lustration with other reform efforts suggest aconcerted attempt by the governments to change citizen perceptions of the insti-tutional capacity and integrity of public and quasi-public institutions

This analysis of the structure and intention of late lustration is an importantcontribution to the lustration literature because it highlights the evolving defi-nition of lustration and its intended impact There remains much debate over thegoals of lustration As lustration expands to include non-political positions orprivate sector positions or changes the criteria for determining collaborationthis will impact the very way the term is used in the transitional justice literature

Democratization 365

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

journalists In terms of institutional impact it was designed for a maximal effect onpublic and quasi-public institutions at all levels The laws appear to target theperceived problem of low levels of bureaucratic change The laws do not ignoretop-ranking political office holders but they are not focused on this group exclu-sively The wide purview of the laws suggests a larger reformist strategy aimed atboth public institutions and the civil society institutions that support them More-over the lustration programme explicitly addresses moral values and public trustthereby tapping into the hypothesized symbolic intention of the laws in furtheringthe process of democratic consolidation

The targeting of the clergy for lustration in the Romanian case is an example ofthe symbolic nature of the programme The clergy has admitted to widespread col-laboration with the Securitate and has been included in the list of positions of trustto be lustrated103 The clergy is not directly affiliated or supported by a politicalbloc therefore lustrating this category of individuals cannot be explained as afunction of gaining direct political advantage on the part of the implementingparty Moreover lustrating the clergy could negatively impact the party inpower since the church enjoys the highest levels of public trust of Romaniarsquospublic institutions (83)104 The targeting of the clergy fits with the moral cleans-ing narrative being put forth to partially explain lustration If lustration is hypoth-esized to catalyze both institutional and symbolic change it would include thesetypes of positions with moral resonance

Second if the new lustration law was designed to support the democratic tran-sition it would increase transparency and accountability in order to reduce thepotential for the laws to be politically manipulated The declassification of all cat-egories of files and the strengthening of the power of the CNSAS suggest an attemptto correct information management problems105 As mentioned there are manyagents involved with the implementation of this programme suggesting onceagain a lack of party orchestration of the process for direct political gain In conjunc-tion with the multiple sources monitoring lustration there is a push by the govern-ment for more media openness with respect to politics as a whole and lustration inparticular106 This also supports an argument that the government is trying toincrease transparency in order to improve the legality and legitimacy of the process

Third Romaniarsquos lustration efforts were bundled with other reform pro-grammes including constitutional reforms reformation of the political classchanges in voting structure to be more inclusive of minorities and national secur-ity changes suggesting a larger reformation mandate107 The lustration law wasproposed and circulated in Parliament at the same time as an anti-corruptionlaw The anti-corruption proposal got caught in political fighting and expiredbefore it could be acted upon108 Additionally the lustration laws were adoptedin conjunction with a draft law reforming the intelligence service109 After1989 approximately 1600 former Securitate officers ended up holding keyposts in the intelligence service110 As such the packaging of lustration withinthe context of broader economic political social and security measures pointsto a larger government reform mandate

362 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Romania suffers from low levels of citizen trust in government and high levelsof corruption (see Table 1) Corruption thrives in all spheres in Romania and it isdirectly tied to the political class Perceptions of corruption are fuelled by the per-vasive belief that the people who contributed to the previous totalitarian regimecontinue to obtain legal and business advantages with 80 of Romanianspolled thinking that corruption levels grew or stagnated even after joiningEU111 Since public office holders and industry leaders are largely drawn fromformer communist elites or Securitate informers there is a belief that the lack ofretroactive justice measures has perpetuated economic and political inequalitiesThe current laws directly address the perceptions of economic inequality andinjustice by focusing on the lustration of economic positions of power includingfinancial institutions By lustrating positions of both economic and political poweracross public and quasi-public institutions the new laws take on the evidence thatthe former secret service networks remain in top political economic and socialpositions and are using their positions for personal gains

The role of former Securitate officers in Romanian society today remains asubject of public anxiety As Vladimir Tismaneanu the head of the PresidentialCommission for the Study of the Communist Dictatorship in Romania notedlsquopeople were perplexed noticing the thriving careers of proven Securitate collab-oratorsrsquo112 The Securitate have maintained powerful ties to business elites in thenew regime lsquoRomanian Securitate agents and activists were the first to benefitfrom an unregulated transition toward capitalism and a multiparty systemrsquo113 In2006 the President of the Institute for the Investigation of the Crimes of Commun-ism summed up the nature of regime change in Romania lsquoIn rsquo89 only Commun-ism was killed but the former state security and Communist Party chiefs took theeconomic powerrsquo114 The continued involvement of former Securitate officers inpolitical and economic networks fuels citizen perceptions that the transition wasincomplete

Finally public opinion on lustration is mixed reflecting a general sense of con-fusion about what will correct the problems in Romanian society Student organiz-ations have called for the lustration of deans and academics and unions havelobbied for lustration of their leaders and representatives115 A civic associationof journalists has pushed for lustration of the media116 In early 2006 50 of citi-zens polled wanted lustration to immediately come into force andmore than half ofcitizens wanted the archives made publicly accessible on the internet117 Howeveronly 43 thought lustration might be useful and 47 thought it might have noimpact whatsoever118 A similar poll later in 2006 showed that 36 of personspolled felt that society would be lsquocleaner and more honestrsquo after lustration with33 showing an interest in revelations and 47 showing no interest at all119

Given the mixed views on the impact of lustration it does not appear likely thatthe party in power designed extensive and controversial lustration laws to tapinto populist sentiments in order to gain a short term direct political advantage

However a political manipulation alternative hypothesis remains compellingin the context of Romania Domestic political fights over lustration and interparty

Democratization 363

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

accusations of collaboration have impacted all Romaniarsquos lustration efforts andcontinue to block the implementation of ratified laws120 The 2006 lustrationlaw proposal turned into a hotly contested and morally charged national debatepassing in the Senate by a single vote and largely opposed by the politicalparties who were Communist Party holdovers121 Lustration changes wereexpected to affect at least 100 current MPs in Parliament which would havesubstantially changed the parliamentary balance of power122 These events areall consistent with an explanation of lustration as a by-product of competitionbetween political parties

Nonetheless the evidence does not fit neatly into a party politics explanationThe primary supporters of lustration the National Liberal Party were politicallydisadvantaged by the laws123 They have been the party most affected by collab-oration accusations with top Liberal officials expelled from the party includingtheir very popular minister of culture Mona Musca124 Basescursquos lsquoexplicit andcategoricalrsquo condemnation of the previous communist system and its record of atro-cities was also a politically precarious position to take in favour of lustration andtransparency125 President Basescursquos speech was received by a divided and hostileParliament and a December 2007 Public Opinion Barometer poll in Romaniashowed citizens still considered Ceausescu was the best political leader thatRomania ever had126 Basescu pushed forward with the legal initiative andavoided an impeachment attempt only after a popular referendum127 This evi-dence does not fit with a political manipulation hypothesis especially given thehigh potential risk for the president and the party initiating the reforms

In addressing the question lsquowhy lustratersquo the evidence for a political manipu-lation hypothesis is lacking As predicted there is some opposition to the policiesby individuals and parties that might be politically disadvantaged There is alsoopposition to the law from the Constitutional Court which has debated both theappropriateness of all retroactive justice measures as well as the constitutionalityof these specific lustration laws However neither of these supports an argumentthat the laws are designed and implemented to advantage a certain party at theexpense of adversaries The fact that the laws are politically motivated and conten-tious does not lead to the conclusion that they are political manipulated

Finally there is some evidence that the late lustration programme was partiallydesigned or timed for international consumption There was substantial signallingon the part of the Romanian president and prime minister about domestic efforts toclean up their oft-cited problems with corruption especially right before the finalaccession negotiations in late 2006128 Therefore it is possible that Romaniarsquospublic posturing might have tipped the EUrsquos assessment of Romania at a crucialmoment in membership considerations However like Poland the expansivescope of the lustration laws could violate freedoms protected by the EuropeanUnionrsquos Court of Justice as well as international obligations under the EuropeanCharter of Human Rights and the International Labor Organization Moreover theEU has explicitly questioned whether lustration conflicts with underlying EUvalues129 Therefore while it is possible that part of the lustration effort was

364 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

designed to appease the international communityrsquos concerns about domesticcorruption problems given the international communityrsquos lack of clear supportregarding the implementation of lustration in other countries this would havebeen a highly risky strategy

In sum the reasons for late lustration in Romania bear a strong resemblance tothe Polish case despite the different political economic and social conditions inthe countries The expansive scope of the Romanian laws the types of positionstargeted the transparency improvements and the proliferation of oversightagencies and mechanisms to monitor implementation of the laws all point to agovernment programme designed to effect broad institutional change as well assymbolic change As with the Polish case lustration and anti-corruption effortshave been conflated in the political sphere There is a link made between continuedcorruption and lack of transitional justice by the governments in the region Lustrationefforts are framed in this anti-corruption narrative and conjoined with economicand political reform efforts This all suggests that the government enacted latelustration in order to address the evidence and perceptions about economicsocial and political problems that have remained unresolved in the transition

Conclusion supporting or undermining democratic transitions

Three findings arise from this comparison of late lustration programmes in Polandand Romania First late lustration looks substantially different from early lustrationprogrammes and has a different more expansive mandate Late lustration is aimedbroadly at positions of public trust spanning political cultural social and economicpositions The programmes are not focused either exclusively or myopically on toppolitical office holders but include positions of trust at national regional and locallevels The criteria for collaborationwere also loosened in both programmes signal-ling a significant change in determining what level of previous secret police or evenregime involvement would lead to employment exclusion The two-pronged expan-sive scope tackles new policy goals including anti-corruption and politicalprivileging concerns The policies are designed to complement and in some casessubstitute for anti-corruption measures Moral cleansing is a dominant theme inboth programmes with a focus on correcting lingering inequalities in terms of econ-omic and political opportunities This resonates with the symbolic change com-ponent of lustrationrsquos goals The similarities of the programmes the transparencysafeguards and the grouping of lustration with other reform efforts suggest aconcerted attempt by the governments to change citizen perceptions of the insti-tutional capacity and integrity of public and quasi-public institutions

This analysis of the structure and intention of late lustration is an importantcontribution to the lustration literature because it highlights the evolving defi-nition of lustration and its intended impact There remains much debate over thegoals of lustration As lustration expands to include non-political positions orprivate sector positions or changes the criteria for determining collaborationthis will impact the very way the term is used in the transitional justice literature

Democratization 365

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Romania suffers from low levels of citizen trust in government and high levelsof corruption (see Table 1) Corruption thrives in all spheres in Romania and it isdirectly tied to the political class Perceptions of corruption are fuelled by the per-vasive belief that the people who contributed to the previous totalitarian regimecontinue to obtain legal and business advantages with 80 of Romanianspolled thinking that corruption levels grew or stagnated even after joiningEU111 Since public office holders and industry leaders are largely drawn fromformer communist elites or Securitate informers there is a belief that the lack ofretroactive justice measures has perpetuated economic and political inequalitiesThe current laws directly address the perceptions of economic inequality andinjustice by focusing on the lustration of economic positions of power includingfinancial institutions By lustrating positions of both economic and political poweracross public and quasi-public institutions the new laws take on the evidence thatthe former secret service networks remain in top political economic and socialpositions and are using their positions for personal gains

The role of former Securitate officers in Romanian society today remains asubject of public anxiety As Vladimir Tismaneanu the head of the PresidentialCommission for the Study of the Communist Dictatorship in Romania notedlsquopeople were perplexed noticing the thriving careers of proven Securitate collab-oratorsrsquo112 The Securitate have maintained powerful ties to business elites in thenew regime lsquoRomanian Securitate agents and activists were the first to benefitfrom an unregulated transition toward capitalism and a multiparty systemrsquo113 In2006 the President of the Institute for the Investigation of the Crimes of Commun-ism summed up the nature of regime change in Romania lsquoIn rsquo89 only Commun-ism was killed but the former state security and Communist Party chiefs took theeconomic powerrsquo114 The continued involvement of former Securitate officers inpolitical and economic networks fuels citizen perceptions that the transition wasincomplete

Finally public opinion on lustration is mixed reflecting a general sense of con-fusion about what will correct the problems in Romanian society Student organiz-ations have called for the lustration of deans and academics and unions havelobbied for lustration of their leaders and representatives115 A civic associationof journalists has pushed for lustration of the media116 In early 2006 50 of citi-zens polled wanted lustration to immediately come into force andmore than half ofcitizens wanted the archives made publicly accessible on the internet117 Howeveronly 43 thought lustration might be useful and 47 thought it might have noimpact whatsoever118 A similar poll later in 2006 showed that 36 of personspolled felt that society would be lsquocleaner and more honestrsquo after lustration with33 showing an interest in revelations and 47 showing no interest at all119

Given the mixed views on the impact of lustration it does not appear likely thatthe party in power designed extensive and controversial lustration laws to tapinto populist sentiments in order to gain a short term direct political advantage

However a political manipulation alternative hypothesis remains compellingin the context of Romania Domestic political fights over lustration and interparty

Democratization 363

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

accusations of collaboration have impacted all Romaniarsquos lustration efforts andcontinue to block the implementation of ratified laws120 The 2006 lustrationlaw proposal turned into a hotly contested and morally charged national debatepassing in the Senate by a single vote and largely opposed by the politicalparties who were Communist Party holdovers121 Lustration changes wereexpected to affect at least 100 current MPs in Parliament which would havesubstantially changed the parliamentary balance of power122 These events areall consistent with an explanation of lustration as a by-product of competitionbetween political parties

Nonetheless the evidence does not fit neatly into a party politics explanationThe primary supporters of lustration the National Liberal Party were politicallydisadvantaged by the laws123 They have been the party most affected by collab-oration accusations with top Liberal officials expelled from the party includingtheir very popular minister of culture Mona Musca124 Basescursquos lsquoexplicit andcategoricalrsquo condemnation of the previous communist system and its record of atro-cities was also a politically precarious position to take in favour of lustration andtransparency125 President Basescursquos speech was received by a divided and hostileParliament and a December 2007 Public Opinion Barometer poll in Romaniashowed citizens still considered Ceausescu was the best political leader thatRomania ever had126 Basescu pushed forward with the legal initiative andavoided an impeachment attempt only after a popular referendum127 This evi-dence does not fit with a political manipulation hypothesis especially given thehigh potential risk for the president and the party initiating the reforms

In addressing the question lsquowhy lustratersquo the evidence for a political manipu-lation hypothesis is lacking As predicted there is some opposition to the policiesby individuals and parties that might be politically disadvantaged There is alsoopposition to the law from the Constitutional Court which has debated both theappropriateness of all retroactive justice measures as well as the constitutionalityof these specific lustration laws However neither of these supports an argumentthat the laws are designed and implemented to advantage a certain party at theexpense of adversaries The fact that the laws are politically motivated and conten-tious does not lead to the conclusion that they are political manipulated

Finally there is some evidence that the late lustration programme was partiallydesigned or timed for international consumption There was substantial signallingon the part of the Romanian president and prime minister about domestic efforts toclean up their oft-cited problems with corruption especially right before the finalaccession negotiations in late 2006128 Therefore it is possible that Romaniarsquospublic posturing might have tipped the EUrsquos assessment of Romania at a crucialmoment in membership considerations However like Poland the expansivescope of the lustration laws could violate freedoms protected by the EuropeanUnionrsquos Court of Justice as well as international obligations under the EuropeanCharter of Human Rights and the International Labor Organization Moreover theEU has explicitly questioned whether lustration conflicts with underlying EUvalues129 Therefore while it is possible that part of the lustration effort was

364 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

designed to appease the international communityrsquos concerns about domesticcorruption problems given the international communityrsquos lack of clear supportregarding the implementation of lustration in other countries this would havebeen a highly risky strategy

In sum the reasons for late lustration in Romania bear a strong resemblance tothe Polish case despite the different political economic and social conditions inthe countries The expansive scope of the Romanian laws the types of positionstargeted the transparency improvements and the proliferation of oversightagencies and mechanisms to monitor implementation of the laws all point to agovernment programme designed to effect broad institutional change as well assymbolic change As with the Polish case lustration and anti-corruption effortshave been conflated in the political sphere There is a link made between continuedcorruption and lack of transitional justice by the governments in the region Lustrationefforts are framed in this anti-corruption narrative and conjoined with economicand political reform efforts This all suggests that the government enacted latelustration in order to address the evidence and perceptions about economicsocial and political problems that have remained unresolved in the transition

Conclusion supporting or undermining democratic transitions

Three findings arise from this comparison of late lustration programmes in Polandand Romania First late lustration looks substantially different from early lustrationprogrammes and has a different more expansive mandate Late lustration is aimedbroadly at positions of public trust spanning political cultural social and economicpositions The programmes are not focused either exclusively or myopically on toppolitical office holders but include positions of trust at national regional and locallevels The criteria for collaborationwere also loosened in both programmes signal-ling a significant change in determining what level of previous secret police or evenregime involvement would lead to employment exclusion The two-pronged expan-sive scope tackles new policy goals including anti-corruption and politicalprivileging concerns The policies are designed to complement and in some casessubstitute for anti-corruption measures Moral cleansing is a dominant theme inboth programmes with a focus on correcting lingering inequalities in terms of econ-omic and political opportunities This resonates with the symbolic change com-ponent of lustrationrsquos goals The similarities of the programmes the transparencysafeguards and the grouping of lustration with other reform efforts suggest aconcerted attempt by the governments to change citizen perceptions of the insti-tutional capacity and integrity of public and quasi-public institutions

This analysis of the structure and intention of late lustration is an importantcontribution to the lustration literature because it highlights the evolving defi-nition of lustration and its intended impact There remains much debate over thegoals of lustration As lustration expands to include non-political positions orprivate sector positions or changes the criteria for determining collaborationthis will impact the very way the term is used in the transitional justice literature

Democratization 365

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

accusations of collaboration have impacted all Romaniarsquos lustration efforts andcontinue to block the implementation of ratified laws120 The 2006 lustrationlaw proposal turned into a hotly contested and morally charged national debatepassing in the Senate by a single vote and largely opposed by the politicalparties who were Communist Party holdovers121 Lustration changes wereexpected to affect at least 100 current MPs in Parliament which would havesubstantially changed the parliamentary balance of power122 These events areall consistent with an explanation of lustration as a by-product of competitionbetween political parties

Nonetheless the evidence does not fit neatly into a party politics explanationThe primary supporters of lustration the National Liberal Party were politicallydisadvantaged by the laws123 They have been the party most affected by collab-oration accusations with top Liberal officials expelled from the party includingtheir very popular minister of culture Mona Musca124 Basescursquos lsquoexplicit andcategoricalrsquo condemnation of the previous communist system and its record of atro-cities was also a politically precarious position to take in favour of lustration andtransparency125 President Basescursquos speech was received by a divided and hostileParliament and a December 2007 Public Opinion Barometer poll in Romaniashowed citizens still considered Ceausescu was the best political leader thatRomania ever had126 Basescu pushed forward with the legal initiative andavoided an impeachment attempt only after a popular referendum127 This evi-dence does not fit with a political manipulation hypothesis especially given thehigh potential risk for the president and the party initiating the reforms

In addressing the question lsquowhy lustratersquo the evidence for a political manipu-lation hypothesis is lacking As predicted there is some opposition to the policiesby individuals and parties that might be politically disadvantaged There is alsoopposition to the law from the Constitutional Court which has debated both theappropriateness of all retroactive justice measures as well as the constitutionalityof these specific lustration laws However neither of these supports an argumentthat the laws are designed and implemented to advantage a certain party at theexpense of adversaries The fact that the laws are politically motivated and conten-tious does not lead to the conclusion that they are political manipulated

Finally there is some evidence that the late lustration programme was partiallydesigned or timed for international consumption There was substantial signallingon the part of the Romanian president and prime minister about domestic efforts toclean up their oft-cited problems with corruption especially right before the finalaccession negotiations in late 2006128 Therefore it is possible that Romaniarsquospublic posturing might have tipped the EUrsquos assessment of Romania at a crucialmoment in membership considerations However like Poland the expansivescope of the lustration laws could violate freedoms protected by the EuropeanUnionrsquos Court of Justice as well as international obligations under the EuropeanCharter of Human Rights and the International Labor Organization Moreover theEU has explicitly questioned whether lustration conflicts with underlying EUvalues129 Therefore while it is possible that part of the lustration effort was

364 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

designed to appease the international communityrsquos concerns about domesticcorruption problems given the international communityrsquos lack of clear supportregarding the implementation of lustration in other countries this would havebeen a highly risky strategy

In sum the reasons for late lustration in Romania bear a strong resemblance tothe Polish case despite the different political economic and social conditions inthe countries The expansive scope of the Romanian laws the types of positionstargeted the transparency improvements and the proliferation of oversightagencies and mechanisms to monitor implementation of the laws all point to agovernment programme designed to effect broad institutional change as well assymbolic change As with the Polish case lustration and anti-corruption effortshave been conflated in the political sphere There is a link made between continuedcorruption and lack of transitional justice by the governments in the region Lustrationefforts are framed in this anti-corruption narrative and conjoined with economicand political reform efforts This all suggests that the government enacted latelustration in order to address the evidence and perceptions about economicsocial and political problems that have remained unresolved in the transition

Conclusion supporting or undermining democratic transitions

Three findings arise from this comparison of late lustration programmes in Polandand Romania First late lustration looks substantially different from early lustrationprogrammes and has a different more expansive mandate Late lustration is aimedbroadly at positions of public trust spanning political cultural social and economicpositions The programmes are not focused either exclusively or myopically on toppolitical office holders but include positions of trust at national regional and locallevels The criteria for collaborationwere also loosened in both programmes signal-ling a significant change in determining what level of previous secret police or evenregime involvement would lead to employment exclusion The two-pronged expan-sive scope tackles new policy goals including anti-corruption and politicalprivileging concerns The policies are designed to complement and in some casessubstitute for anti-corruption measures Moral cleansing is a dominant theme inboth programmes with a focus on correcting lingering inequalities in terms of econ-omic and political opportunities This resonates with the symbolic change com-ponent of lustrationrsquos goals The similarities of the programmes the transparencysafeguards and the grouping of lustration with other reform efforts suggest aconcerted attempt by the governments to change citizen perceptions of the insti-tutional capacity and integrity of public and quasi-public institutions

This analysis of the structure and intention of late lustration is an importantcontribution to the lustration literature because it highlights the evolving defi-nition of lustration and its intended impact There remains much debate over thegoals of lustration As lustration expands to include non-political positions orprivate sector positions or changes the criteria for determining collaborationthis will impact the very way the term is used in the transitional justice literature

Democratization 365

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

designed to appease the international communityrsquos concerns about domesticcorruption problems given the international communityrsquos lack of clear supportregarding the implementation of lustration in other countries this would havebeen a highly risky strategy

In sum the reasons for late lustration in Romania bear a strong resemblance tothe Polish case despite the different political economic and social conditions inthe countries The expansive scope of the Romanian laws the types of positionstargeted the transparency improvements and the proliferation of oversightagencies and mechanisms to monitor implementation of the laws all point to agovernment programme designed to effect broad institutional change as well assymbolic change As with the Polish case lustration and anti-corruption effortshave been conflated in the political sphere There is a link made between continuedcorruption and lack of transitional justice by the governments in the region Lustrationefforts are framed in this anti-corruption narrative and conjoined with economicand political reform efforts This all suggests that the government enacted latelustration in order to address the evidence and perceptions about economicsocial and political problems that have remained unresolved in the transition

Conclusion supporting or undermining democratic transitions

Three findings arise from this comparison of late lustration programmes in Polandand Romania First late lustration looks substantially different from early lustrationprogrammes and has a different more expansive mandate Late lustration is aimedbroadly at positions of public trust spanning political cultural social and economicpositions The programmes are not focused either exclusively or myopically on toppolitical office holders but include positions of trust at national regional and locallevels The criteria for collaborationwere also loosened in both programmes signal-ling a significant change in determining what level of previous secret police or evenregime involvement would lead to employment exclusion The two-pronged expan-sive scope tackles new policy goals including anti-corruption and politicalprivileging concerns The policies are designed to complement and in some casessubstitute for anti-corruption measures Moral cleansing is a dominant theme inboth programmes with a focus on correcting lingering inequalities in terms of econ-omic and political opportunities This resonates with the symbolic change com-ponent of lustrationrsquos goals The similarities of the programmes the transparencysafeguards and the grouping of lustration with other reform efforts suggest aconcerted attempt by the governments to change citizen perceptions of the insti-tutional capacity and integrity of public and quasi-public institutions

This analysis of the structure and intention of late lustration is an importantcontribution to the lustration literature because it highlights the evolving defi-nition of lustration and its intended impact There remains much debate over thegoals of lustration As lustration expands to include non-political positions orprivate sector positions or changes the criteria for determining collaborationthis will impact the very way the term is used in the transitional justice literature

Democratization 365

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Second critics have charged that lustration laws are egregious examples ofrevenge politics and therefore likely to undermine the democratic transitionprocess In some countries lustration has looked very much like revenge politicsHowever the evidence of late lustration in Poland and Romania neither supports astrong revenge hypothesis nor a limited hypothesis that the laws are timed ordesigned for direct political party advantaging The transparency and accountabil-ity measures have changed in the late lustration programmes directly trying tocorrect problems with secrecy and limited transparency in the past In Poland inparticular previous opponents to lustration have changed their minds andbegun to endorse a transparent review of the past Additionally in both casesthe party initiating the reforms was adversely impacted by the lustration pro-grammes which works against a traditional argument that lustration laws aretools of party politics designed to confer direct political advantage on the initiatingparty

This is an important finding because the assumption that the laws are politi-cally manipulated a priori sullies an assessment of their impact This study hastried to disentangle politically motivated laws from politically manipulatedlaws highlighting how conflating the two results in sweeping and possibly erro-neous assumptions about lustration Lustration has been prone to political manipu-lation but that must be proven not assumed up front

Third originally it was thought that lustration needed to be done at the start ofthe transition or it would be ineffectual and maybe even detrimental to democraticreforms However this new evidence does not support the original contentionThe waves of late lustration across the region from Macedonia and Slovenia toLatvia and Slovakia suggest that CEE countries might be turning to lustrationas a way to correct some of the problems associated with post-communist tran-sitions Even countries that instituted transitional justice measures early in thetransition continue to grapple with retroactive justice concerns In 2007 boththe Czech Republic and East Germany moved forward with expansive transpar-ency measures to improve an understanding of access to and use of secretpolice files as part of their continuing programmes addressing retroactivejustice concerns130 All of this shows that the timeline for transitional justice inthe regime is much more fluid than originally thought Lustration is resonatingwith a symbolic and institutional sense that something about the democratictransitions is incomplete

Whether these expansive late lustration policies will actually improve citizenperceptions about the trustworthiness of public institutions and contribute todemocratic consolidation is the subject of future inquiry In both the Romanianand Polish cases the actual implementation of the laws remains contentiousBad implementation could undermine the goal of good governance Lustrationcould be the latest misplaced panacea for problems with the transition Thispaper addresses the first order question lsquowhy late lustrationrsquo It has shown thatthe structure and context for the late lustration programmes suggest reform-oriented policies to support the democratic consolidation process in the region

366 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

The second order question lsquodoes lustration actually improve institutional trust-worthinessrsquo remains open

Notes1 Quoted in David lsquoLustration Laws in Actionrsquo 3942 United Nations Rule of Law Tools for Post-Conflict States 43 Regional arguments against lustration have been made by the Polish leader Tadeusz

Mazowiecki and later Lech Walesa while he was Polandrsquos president See BertschilsquoLustration and the Transition to Democracyrsquo 435-451 Michnik and HavellsquoJustice or Revengersquo 20ndash7 Siklova lsquoThe Czech Way of Screeningrsquo 57ndash62International criticism has resonated with national level concerns see InternationalLabour Organization Report of the Committee Set Up to Examine the Represen-tation Made by the Trade Union Association of Bohemia Moravia and Silesia(OS-CMS) under Article 24 of the ILO Constitution Council of Europe LustrationMust Not Turn into Revenge Against Former Collaborators

4 Wiktor Osiatynski lsquoPoland Makes Witch Hunting Easierrsquo The New York Times 22January 2007 (Warsaw edition) op-ed lsquoThe Polish Inquisitionrsquo The Wall StreetJournal 27 April 2007 (Brussels edition) editorial and lsquoThe New Purge inPolandrsquo The Boston Globe 9 April 2007

5 Czechoslovakia enacted a lustration program in 1990 After the split Slovakia usedthe screening law it inherited until it stopped its lustration program in 1993 In 2002it approved a National Memory Bill to renew lustration policies but this did not gainreal momentum until 2004 See Kritz lsquoCzech and Slovak Federal Republicrsquo312ndash21 Radio Free EuropeRadio Liberty lsquoSlovakia Makes Files fromCommunist and Nazi eras Publicrsquo RFERL Newsline 6 no 128 part II 11 July2002 httpwwwrferlorg Kubosova lsquoSlovakia Pandorarsquos Box Onlinersquo

6 Gaube lsquoSlovenia A Sorry Spy Huntrsquo Aris Jansons lsquoLatvia Spy Gamesrsquo7 lsquoMacedonian Assembly Legal Committee Approves Lustration Billrsquo BBC Monitor-

ing European 23 January 2007 Makfax News Agency Skopje8 Boed lsquoAn Evaluation of the Legality and Efficacy of Lustrationrsquo 357ndash402 lsquoCzech

Interior Ministry To Start Checking Police for Communist Security Tiesrsquo BBCMonitoring European 19 February 2007

9 According to the US State Department Polandrsquos 2007 GDP per capita was $11 037while Romaniarsquos was $5662 Both had annual GDP growth rates of approximately6 See US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgnhtm

10 European Commission lsquoBulgaria and Romania ndash More Work Needed onCorruptionrsquo

11 David lsquoLustration Laws in Actionrsquo 388 Natalia Letki lsquoLustration and Democrati-sation in East-Central Europersquo 530 Williams and Szczerbiak et al lsquoExplainingLustration in Eastern Europersquo

12 Laszlo Solyom lsquoThe Role of Constitutional Courtsrsquo 133ndash6113 NoteKaminiski andNalepa differentiate two formsof truth revelationprocedures con-

fession-based procedures and incentive-based procedures in order to discuss differ-ences in impact and efficacy See lsquoJudging Transitional Justicersquo 383ndash408 MarkGibney lsquoProsecuting Human Rights Violations From a Previous Regimersquo 93ndash110

14 For a lively debate amongst regional scholars over the definition and intent oflustration see Hatschikjan Past and Present

15 lsquoPolandrsquos Witch Huntrsquo Irish Times 30 April 2007 2116 European Court of Human Rights Case of Sidabras and Dziautas v Lithuania

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania

Democratization 367

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

17 Boed lsquoLegality of Lustrationrsquo 363 and Bertschi lsquoLustration and the Transition toDemocracyrsquo 447

18 Boed lsquoLegality of Lustrationrsquo19 For an overview of where lustration and vetting are situated within the larger transi-

tional justice debate see Auckerman lsquoExtraordinary Evil Ordinary Crimersquo 39ndash97Minow Between Vengeance and Forgiveness The arguments for and against lustra-tion on moral legal and procedural grounds have been oft debated therefore I willnot reiterate all of the arguments here For a review of some of the key issues seeLos lsquoLustration and Truth Claimsrsquo 117ndash61 Welsh lsquoDealing with the CommunistPastrsquo 413ndash29 Posner and Vermeule lsquoTransitional Justice as Ordinary Justicersquo761ndash825

20 Maina Kiai lsquoHow Human Rights Principles amp Approachesrsquo United Nations Rule ofLaw Tools for Post-Conflict States Williams lsquoLustration as the Securitization ofDemocracyrsquo 1ndash24

21 Council of Europe Measures to Dismantle the Heritage of Former CommunistTotalitarian Systems

22 United Nations Rule of Law Tools for Post-Conflict States23 For example see European Court of Human Rights Case of Zdanoka v Latvia 3924 Tupy lsquoRise of Populist Parties in Central Europersquo 1325 Cioflanca lsquoPolitics of Oblivionrsquo 85ndash9326 Specifically Conor OrsquoDwyer shows that despite an explosion of new administrative

positions and districts in the case of Poland the locus of power has changed littleSee lsquoReforming Regional Governance in East Central Europersquo 246ndash7

27 David lsquoLustration Laws in Actionrsquo 39428 Ibid 414 fn 6329 This assertion was supported by similar allegations made by former Prime Minister

Karimierz Marcinkiewicz See Simonov lsquoPurging Eastern Europe of Evilrsquo MichaelSzporer lsquoWildsteinrsquos List Time for Moral Cleansingrsquo SIEC News (2005) httpwwwpolishnewscomtextpoliticswildsteins_listhtml (accessed 18 May 2007)

30 Grigorescu lsquoThe Corruption Eruption in East-Central Europersquo 517 PaczynskalsquoInequality Political Participation and Democratic Deepening in Polandrsquo 603ndash4

31 Stan lsquoPolitics ofMemory inPolandVladimir Tismaneanu quoted inClaudiaCiobanulsquoCourt Suspends Councilrsquos Inquiries into Secret Servicersquo Inter Press Service 11February 2008 (Bucharest Romania) Wolek lsquoLustration as a Strugglersquo 147ndash201

32 Huntington Third Wave 151ndash6133 The lsquothick linersquo is a reference to the philosophy espoused by Tadeusz Mazowiecku

the first non-communist prime minister of Poland (1989) It captures the policy ofdrawing a thick line between the past and the future See Bertschi lsquoLustrationand Transition to Democracyrsquo

34 Wojciech Kosc lsquoPoland Wildsteinrsquos Listrsquo Transitions Online Policy Briefs 1ndash7February 2005 httpwwwciaonetorgpbei-2tol-1tol_2005feb1-feb7feb1-feb7ghtml

35 Posner and Vermeule lsquoTransitional Justice as Ordinary Justicersquo 82536 Offe Varieties of Transition Offe lsquoComing to Terms with Past Injusticesrsquo

195ndash20137 Kiss lsquoThe Misuses of Manipulation Barrett Hack and Munkacsy lsquoLustration as

Political Competitionrsquo 260ndash30738 Austin and Ellison lsquoPost-Communist Transitional Justice in Albaniarsquo 37439 Kaminski and Nalepa lsquoJudging Transitional Justicersquo40 lsquoEuropersquos Marxist Dilemmarsquo The Economist 24 April 2008 72 Visegrad refers to

the original group of four countries seeking European Union integration namely theCzech Republic Hungary Poland and Slovakia

368 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

41 Boed lsquoLegality and Efficacy of Lustrationrsquo 447 Bertschi lsquoLustration and theTransition to Democracyrsquo 444 Ellis lsquoPurging the Pastrsquo 192

42 lsquoNo Comeback for Gilowskarsquo The Warsaw Voice 9ndash16 July 2006 1643 Gerald Owen lsquoA Revolution Purges Its Ownrsquo National Post (Ontario) 12 January

2007 Stan lsquoPolitics of Memory in Polandrsquo 1844 Stan lsquoPolitics of Memory in Polandrsquo 29ndash3045 For a copy of the list see httpwwwhumanrightshouseorg and lsquoScreening

Polandrsquos Past Wersquove Got a Little Listrsquo The Economist 12 August 2006 4246 Stan lsquoPolitics of Memory in Polandrsquo 4647 Lechrsquos five-year term as president of Poland expires in December 2010 Jaroslaw

served as prime minister from July 2006ndashNovember 2007 lsquoPolandrsquos PurgesFalse Lustrersquo The Economist 19 May 2007 57

48 Judy Dempsey lsquo17 Years of Reform Fall Short for Polish Chiefsrsquo InternationalHerald Tribune (Paris edition) 2 November 2006 3

49 Tom Hundley lsquoPoland Looks Back in Angerrsquo Chicago Tribune 28 November2006 10

50 Stan lsquoPolitics of Memory in Polandrsquo 1851 In 2007 there was a very public outing of the soon to be Archbishop of Warsaw over

collaboration revelations just as he was being appointed to the new position byRome lsquoPoland and the Past Tainted Vestmentsrsquo The Economist 13 January2007 47 Craig Smith lsquoNew Warsaw Archbishop Quits Over CommunistCollaborationrsquo The New York Times 8 January 2007 httpwwwnytimescom20070108worldeurope08polandhtml

52 lsquoLustration Law Amendedrsquo PolishNews Issue 71 (1) on-line news March 2002httpwwwpolishnewscomfulltextstraight2002hotnews71_1shtml

53 lsquoNew Law in Poland Aims to Oust Officials Who Aided Secret Policersquo TheNew York Times 15 March 2007 httpwwwnytimescom2007worldeurope16polandhtml and lsquoPolish Academics Brace for Anti-communist Come-CleanLawrsquo Agence France-Presse 14 March 2007

54 Mite lsquoPoland Tough Lustration Lawrsquo55 Ellis lsquoPurging the Pastrsquo 19356 McLaughlin lsquoThousands May Lose Job in Purgersquo 957 Polish Constitutional Court Judgement of 11 May 2007 File Ref No K207

LUSTRATION (Fundamental arguments) English translation by Marek ŁukasikJudicial Decisions httpwwwtrybunalgovplengindexhtm

58 lsquoProfessor Bronislaw Geremek the Member of the European Parliamentrsquo AXISNews 5 March 2008 Available at wwwaxisglobecompnnt_newsaspnewsfrac1412629 accessed 10 June 2008

59 Kaminiski and Nalepa lsquoJudging Transitional Justicersquo 38460 Anne Penketh lsquoPoles Apartrsquo The Independent (London) 28 May 2007 httpdocs

newsbankcomopenur61 Andy McSmith lsquoWhy Has Lech Walesa Published the Files Kept on Him by Polish

Policersquo The Independent (London) 13 June 2007 httpdocsnewsbankcomopenur

62 Grigorescu lsquoThe Corruption Eruption in East-Central Europersquo 51763 lsquoPolandrsquos Purges False Lustrersquo64 See Paczynska lsquoInequality Political Participation and Democratic Deepening in

Polandrsquo for a discussion of rising economic inequality and perceptions ofunfairness and dissatisfaction with public institutions in Poland Mishler andRichard lsquoWhat Are the Origins of Political Trust Mishler and Rose lsquoTrust Distrustand Skepticismrsquo

65 Kosc lsquoPoland Wildsteinrsquos Listrsquo

Democratization 369

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

66 lsquoPolish Report Views Impact of Secret Service Reforms ldquoUnprecedented Suspi-cionrdquorsquo Polityka in BBC Monitoring European Warsaw 4 November 2006

67 Economist Intelligence Unit lsquoPoland Politics The End of the Linersquo EIU ViewsWire 22 September 2006

68 Simonov lsquoPurging Eastern Europersquo69 lsquoScreening Polandrsquos Pastrsquo 4270 lsquoPolish Inquisitionrsquo 1271 Letki lsquoLustration and Democratisation in East-Central Europersquo72 Los and Zybertowicz Privatizing the State-Police quoted in Stan lsquoPolitics of

Memory in Polandrsquo 1573 Stan lsquoThe Politics of Memory in Polandrsquo 1074 Kritz lsquoThe Dilemmas of Transnational Justicersquo Transitional Justice xxxv and

David lsquoLustration Laws in Actionrsquo 42675 lsquoNew Law in Poland Aims to Oust Officialsrsquo76 Hundley lsquoPoland Looks Backrsquo 1077 lsquoPolish Academics Bracersquo 1078 This group of lsquoyoung politiciansrsquo has been referred to as lsquoGeneration 72rsquo a reference

to the 1972 cut-off date for screening See Derek Scally lsquoPoles Split Down theMiddle over Digging Up the Pastrsquo Irish Times (Dublin) 22 January 2007 Osia-tynski lsquoPoland Makes Witch Hunting Easierrsquo

79 Stan lsquoThe Politics of Memory in Polandrsquo 5180 Cienski lsquoPolandrsquos Anti-Communist Witch-Huntrsquo 681 Memorandum to the Polish Government82 lsquoHuman Rights Commissioner Presents Memorandum on Polandrsquo83 Helsinki Committee Helsinki Committee of Poland84 Stan lsquoThe Romanian Anticorruption Billrsquo 18 Lidia Moise lsquoSeven Unsolved

Problems That Make Brussels Worryrsquo Libera Bucharest translated in BBC Moni-toring Original Source 7 January 2008 European Commission lsquoBulgaria andRomania ndash More Work Neededrsquo

85 For details about the Proclamation of Timisoara especially section 8 that dealsdirectly with lustration see httpwwwceausescuorgceausescu_textsrevolutionprocl_tm_enghtm

86 Gibney Prosecuting Human Rights Violationsrsquo 9787 Welsh lsquoDealing with the Communist Pastrsquo 41688 Neculai Munteanu lsquoDaily Views Persisting Influence of Securitate Communists in

Romaniarsquo Ziua Bucharest translated in BBC Monitoring European 4 April 2006lsquoWhat the Newspapers Say March 30 2006rsquo HotNewsro 30 March 2006 httpenglishhotnewsrowhatndashthendashnewspapersndashsayndashMarchndash30ndash2006ndasharticol_pnnt_42405_Z accessed 21 September 2006

89 Lovatt lsquoSecuritate Shufflersquo90 lsquoRomanians May See Own Securitate Filesrsquo Radio Free EuropeRadio Liberty

Southeastern Europe edition 10 January 2001 Emailed daily news reports archivesavailable at httpwwwrferlorginfoNewslinethornArchive494html

91 lsquoThe Lustration LawWas Passed by the Senatersquo HotNewsro 10 April 2006 httpwwwhotnewsroarticol_46347-Legea-lustratiei-a-trecut-de-Senathtm CiobanulsquoCourt Suspends Councilrsquos Inquiriesrsquo

92 Konrad-Adenauer-Stiftung lsquoStatus Quo of ldquoLustrationrdquo in South East Europersquo93 Mirela Corlatan lsquoA Lustration Law for Romaniarsquo Euro-topics 25 May 2007

available at httpwwwauacademiccommetap_mla_apa_research_citationCatalin Bogdan lsquoFar From Unanimous Condemnationrsquo Nine orsquoclock no 3835(20 December 2006) 4 available at httpwwwnineoclockro

94 Ciobanu lsquoCourt Suspends Councilrsquos Inquiriesrsquo

370 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

95 Annett Muller lsquoSluggish Processing of the Pastrsquo Euro-topics Magazine 5 February2008 httpwwweurotopicsnetenmagazinstasi-2008-0lmueuer_vergangenheitsaufarbeitung accessed 12 May 2008

96 Public trust in the courts is low with high levels of judicial corruption and a lack oftransparency The Court also recently struck down a law requiring public wealth dis-closures for dignitaries that was required by the EU as part of a new transparencyeffort The objectivity of the Courts has been questioned by both the public andthe government on this and related reform efforts See lsquoConstitutional Court Lawallowing the control of dignitariesrsquo wealth is not constitutionalrsquo HotNewsro 16April 2008 Stan lsquoThe Romanian Anticorruption Billrsquo

97 lsquoWhat the Newspapers Say May 3 2006rsquo HotNewsro httpenglishhotnewsrowhat-the-newspapers-say-May-3-2006-articol-print_4267_2 accessed 21 Septem-ber 2006

98 lsquoThe Stain of Exposurersquo Radio Romania International (17 August 2006) Bucharesthttpwwwrriroindexphplmbfrac144ampartfrac1416460

99 Alison Mutler lsquoRomania Secret Police Files an Obsessionrsquo Associated Press NewsService (Bucharest) 30 August 2006

100 lsquoDeputies Endorse Law for Revealing Securitate Collaboratorsrsquo HotNewsro 21September 2006 update 11 April 2006 original Available at httpenglishhotnewsroDeputies-endorse-law-for-revealing-Seacuritate-collaboraters-articolaccessed 21 September 2006

101 The four types of funds are the Criminal Fund the Operative Fund the IntelligenceFund and the Correspondence Reports Analyses and Syntheses Fund TheOperative Fund contains information about individuals who were pursued ormonitored by the Securitate The Intelligence Fund includes information oninformers and collaborators The Criminal Fund includes information related tocriminal trials The Correspondence Reports Analyses and Syntheses Fundincludes historical information about the evolution and structure of the SecuritatelsquoRomanian Report Entire Securitate Archive on Microfilm Computersrsquo BBCMonitoring European (London) 30 April 2006

102 Adriana Mica lsquoThe Lustration with Two Heads and the Myriapod TransitionalJustice in Romaniarsquo paper presented at annual meeting of Law and SocietyOrganization Berlin 25 July 2007 Paper uploaded 2008 httpwwwmemoriarolocationfrac14view_articleampidfrac141881amplfrac14enamppagefrac142

103 Stan and Turcescu lsquoThe Devilrsquos Confessorsrsquo 655ndash85104 lsquoA Bad Mark for the Judiciaryrsquo lsquoWhere Does Romaniansrsquo Trust Liersquo Radio

Romania International (Bucharest) 13 September 2006 httpwwwrriroindexphplmbfrac144ampartfrac1417068 lsquoThe Romanian Media as Perceived by thePopulationrsquo Radio Romania International (Bucharest) 26 July 2006 httpwwwrriroindexphplmbfrac144ampartfrac1415501

105 Catalin Bogdan lsquoA Past Still Lockedrsquo Nine OrsquoClock no 3640 (16 March 2006)4 Catalin Bogdan lsquoSecuritate a Persistent Mysteryrsquo Nine Orsquo Clock no 3647(27 March 2006) 4

106 lsquoDeputies Endorse Lawrsquo107 lsquoRomanian Party Leader Sees Ethnic Hungarian Party as Potential PartnerrsquoMagyar

Nemzet (Budapest) translated in BBC Monitoring 24 May 2007 lsquoRomaniarsquos Presi-dent Consults Political Partiesrsquo BBC Monitoring Original Source Rompres NewsAgency Bucharest 28 May 2007

108 The draft law for the creation of a National Integrity Agency would have directlytargeted government corruption lsquoA Bad Mark for the Judiciaryrsquo Radio RomaniaInternational (Bucharest) 13 September 2006 httpwwwrriroindexphplmbfrac144ampartfrac1417068 accessed 21 September 2006

Democratization 371

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

109 lsquoCitizens and National Security Lawsrsquo Radio Romania International (Bucharest) 1September 2006 httpwwwrriroindexphplmbfrac144ampartfrac1416785 accessed 21September 2006

110 Craig Smith lsquoEastern Europe Still Struggles to Purge Its Security Servicesrsquo TheNew York Times International Section 12 December 2006

111 For a discussion of the compatibility problem see Stan lsquoRomanian AnticorruptionBillrsquo 2 see also lsquoThe Moral Reform of Justicersquo Radio Romania International(Bucharest) 10 July 2006 httpwwwrriroindexphplmbfrac144ampartfrac1415578accessed 21 September 2006 and lsquoSurvey Traffic Police Seen as Most CorruptInstitution Within Romanian Ministryrsquo Hotnewsro 16 November 2007 Archivedin httpenglishhotnewsro

112 Ciobanu lsquoCourt Suspends Councilrsquos Inquiriesrsquo113 lsquoThe Lustration Law Under Public Debatersquo Radio Romania International

(Bucharest) 12 May 2006 httpwwwrriroindexphpamplmbfrac144ampartfrac1414004114 Smith lsquoEastern Europe Still Strugglesrsquo115 lsquoTime for Moral Cleansingrsquo Radio Romania International (Bucharest) 7 August

2006 httpwwwrriroindexphplmbfrac144ampartfrac1416238 accessed 21 September2006

116 lsquoMoral Reform in the Mediarsquo Radio Romania International (Bucharest) 28August 2006 httpwwwrriroindexphplmbfrac144ampartfrac1416690 accessed 21September 2006

117 lsquoLustration Under Public Debatersquo118 lsquoRomanians Rather Indifferent Toward Former Securitatersquo HotNewsro 29

November 2006 update 8 May 2006 original edition Available at httpenglishhotnewsroRomanians-rather-indifferent-towards-former-Securitate-articol_accessed 21 September 2006

119 lsquoRomanians Skeptical About the Former Collaboratorsrsquo Revelationrsquo HotNewsro29 November 2006 update 6 September 2006 original edition Available athttpenglishhotnewsroRomanians-sceptical-about-the-former-collaborators-revelation-articol_print_423442 accessed 21 September 2006

120 lsquoDraft Law on Lustration Fails Againrsquo HotNewsro 21 September 2006 update 21March 2006 original Available at httpenglishhotnewsroDraft-law-on-lustration-fails-again-articol_ accessed 4 January 2007

121 lsquoA Hot Summer for Romanian Politicsrsquo Radio Romania International (Bucharest)10 July 2006 httpwwwrriroindexphplmbfrac144ampartfrac1415579 accessed 21September 2006 and lsquoRomanian President Opposition Nationalist Party CriticizesLustration Billrsquo BBC Monitoring European (London) 18 April 2006

122 lsquoWhat the Newspapers Say April 03 2006rsquo HotNewsro original 3 April 2006updated 21 September 2006

123 lsquoRomanian Political Files Under Scrutinyrsquo Radio Romania International(Bucharest) 15 August 2006 httpwwwrriroindexphplmbfrac144ampartfrac1416393accessed 21 September 2006

124 lsquoThe End of a Political Careerrsquo Radio Romania International (Bucharest) 4September 2006 httpwwwrriroindexphplmbfrac144ampartfrac1416856 accessed21 September 2006 and lsquoTop Liberals Expelled from the Partyrsquo HotNewsro4 September 2006

125 lsquoBasescu The Communist Regime in Romania Was Illegitimate and Criminalrsquo NineOrsquoclock no 3834 (19 December 2006) 1

126 lsquoEx-Communist dictator Ceausescu Seen as Best and Worst Political Leaderin Romaniarsquo HotNewsro 6 December 2007 Available in archives httpenglishhotnewsro

372 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

127 lsquoWhat the Newspapers Say March 30 2006rsquo HotNewsro 30 March 2006available at httpenglishhotnesroWhat-the-newspapers-say-March-3002006-articol_print_4205_2 accessed 21 September 2006 lsquoPresident Launches FierceAttack Against PM on TVrsquo HotNewsro 21 September 2006 edition 5 April2006 original available at httpenglishhotnewsroPresisdent-launches-fiece-attack-against-PM-on-TV-articol_print accessed 21 September 2006 and lsquoRoma-niarsquos President Discusses Need to Meet Priorities with Parliament SupportrsquoRompres news agency Bucharest translated in BBC Monitoring Original Source21 May 2007

128 Grigorescu lsquoCorruption Eruptionrsquo 544ndash5 and lsquoEuropeans Critical of Romania andBulgariarsquo New York Times World Briefing 27 June 2007

129 Michael Jordan lsquoEx-communist Purge Bumps Up Against EU Valuesrsquo The Chris-tian Science Monitor 1 May 2007 4

130 The Czech Republic approved the creation of a new Institute for Studies ofTotalitarian Regimes which will administer the secret police files and continue toconduct research lsquoCzechs To Have an Institute Dedicated to Totalitarian PastrsquoDeutsche Press-Agentur as translated in Global News Bank 26 June 2007 EastGermany approved a grant to fund efforts to piece together the shredded secretpolice files in order to address continuing retroactive justice concerns See Jean-Baptiste Piggin lsquoComputers Restore Ripped Up German Secret Filesrsquo DeutschePress-Agentur translated in Global News Bank 9 May 2007 Available at httpinfowebnewsbankcom-iw-search-weInfoWeb accessed 19 April 2008

Note on contributorCynthia M Horne is an Assistant Professor of Political Science at Western Washington Uni-versity The author wishes to thank Deborah Elms Alexandra Vacrox Regina Smyth andthe participants at theWarsaw East European Annual Conference in the summer of 2007 fortheir feedback and helpful advice This manuscript is much stronger as a result of the helpfulcritiques from the anonymous reviewers atDemocratization This research benefited greatlyfrom two summer research grants provided by Western Washington University

BibliographyAuckerman Mirian lsquoExtraordinary Evil Ordinary Crime A Framework for Understanding

Transitional Justicersquo Harvard Human Rights Journal 15 no 39 (2002) 39ndash97Austin Robert and Jonathan Ellison lsquoPost-Communist Transitional Justice in Albaniarsquo

East European Politics and Societies 22 no 2 (2008) 373ndash401Barrett Elizabeth Peter Hack and Agnes Munkacsy lsquoLustration as Political Competition

Vetting in Hungaryrsquo In Justice as Prevention Vetting Public Employees in TransitionalSocieties eds Alexander Mayer-Riechkh and Pablo De Greiff 260ndash307 New YorkICTJ and Social Science Research Council 2007

Bertschi C Charles lsquoLustration and the Transition to Democracy The Cases of Poland andBulgariarsquo East European Quarterly 28 no 4 (January 1995) 435ndash51

Boed Roman lsquoAn Evaluation of the Legality and Efficacy of Lustration as a Toolof Transitional Justicersquo Columbia Journal of Transitional Law 37 no 2 (1999)357ndash402

Cienski Jan lsquoPolandrsquos Anti-Communist Witch-Hunt Risks Business Chaosrsquo FinancialTimes 15 March 2007 6

Cioflanca Adrian lsquoPolitics of Oblivion in Postcommunist Romaniarsquo Romanian Journal ofPolitical Science 2 (September 2002) 85ndash93

Democratization 373

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Council of Europe Lustration Must Not Turn Into Revenge Against Former CollaboratorsStrasbourg Commissioner for Human Rights 19 March 2007 httpwwwcoeinttcommissionerViewpoints070319_enasp

Council of EuropeMeasures to Dismantle the Heritage of Former Communist TotalitarianSystems Resolution 1096 (1996) Parliamentary Assembly The Council of EuropeStrasbourg France 1996 Available at httpassemblycoeintDocumentsAdoptedTextta96ERES1096HTM

David Roman lsquoLustration Laws in Action The Motives and Evaluation of LustrationPolicy in the Czech Republic and Poland (1989ndash2001)rsquo Law and Social Inquiry 28no 2 (2003) 394

Ellis Mark lsquoPurging the Past The Current State of Lustration Laws in the FormerCommunist Blocrsquo Law and Contemporary Problems 59 no 4 (1997) 181ndash196

European Commission lsquoBulgaria and Romania ndash More Work Needed on CorruptionrsquoEuropean Commission External Relations and Foreign Affairs Brussels 24 July2008 httpeceuropaeunewsexternal_relations080724_1_enhtm

European Court of Human Rights Case of Sidabras and Dziautas v Lithuania Council ofEurope 5548000 and 5933000 Strasbourg ECHR 2004

European Court of Human Rights Case of Rainys and Gasparavicius v Lithuania Councilof Europe 7066501 and 7434501 Strasbourg ECHR 2005

European Court of Human Rights Case of Zdanoka v Latvia Judgment 5827800 16March 2006 Strasbourg ECHR 2006

Freedom House Nations in Transit Democratization from Central Europe to Eurasia 2007httpwwwfreedomhousehuindexphpoptionfrac14com_contentamptaskfrac14viewampidfrac1484

Gaube Ales lsquoSlovenia A Sorry Spy Huntrsquo Transitions Online Policy Briefs 23ndash28 April2003 httpwwwciaonetorgpbei-2tol-1tol_2003apr23-28apr23-28_dhtml

Gibney Mark lsquoProsecuting Human Rights Violations from a Previous Regime TheEast European Experiencersquo East European Quarterly 31 no 1 (March 1997) 93ndash110

Grigorescu Alexandru lsquoThe Corruption Eruption in East-Central Europe The IncreasedSalience of Corruption and the Role of Intergovernmental Organizationsrsquo EastEuropean Politics and Societies 20 no 3 (2006) 516ndash49

Hatschikjan Magarditsch ed Past and Present Consequences for DemocratisationProceedings of the Seminar Organised within the project Disclosing Hidden HistoryLustration in the Western Balkans 2ndash4 July 2004 Center for Democracy andReconciliation in Southeast Europe

Helsinki Committee Helsinki Committee of Poland Position Regarding the Act ofDisclosing Information Regarding Security Services Documents Warsaw PolandHelsinki Committee in Poland Member of International Helsinki Federation forHuman Rights in Vienna 2007

Human Rights Commissioner Presents Memorandum on Poland Commissioner for HumanRights Council of Europe Strasbourg France 20 June 2007 httpwwwcoeorgplengnewshtm

Huntington Samuel The Third Wave Democratization in the Late Twentieth CenturyNorman OK University of Oklahoma Press 1991

International Labour Organization Czech Republic of the Discrimination (Employment andOccupation) Convention 1958 (No 111) Geneva International Labour Organization1994

International Labour Organization Report of the Committee Set Up To Examine theRepresentation Made by the Trade Union Association of Bohemia Moravia andSilesia (OS-CMS) Under Article 24 of the ILO Constitution Alleging Non-Observance by the Czech Republic of the Discrimination (Employment andOccupation) Convention 1958 (No 111) Document No 161995CZE111 GenevaInternational Labour Organization 1994

374 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Inter-University Consortium for Political and Social Research Candidate CountriesEurobarometer Various years wwwiicpsrumichedu

Jansons Aris lsquoLatvia Spy Gamesrsquo Transitions Online Policy Briefs 18ndash24 May 2004httpwwwciaonetorgpbei-2tol-1tol_2004may18-24may18-24_ehtml

Kaminski Marek and Monika Nalepa lsquoJudging Transitional Justice A New Criterion forEvaluating Truth Revelation Proceduresrsquo Journal of Conflict Resolution 50 no 3 (June2006) 383ndash408

Kiai Maina lsquoHow Human Rights Principles amp Approaches Can Help in FightingCorruptionrsquo Commission on Human Rights United Nations Conference on Anti-Corruption Measures Office of the United Nations High Commissioner for HumanRights HRPOLGGSEM2006BP2 New York United Nations 2006

Kiss Csilla lsquoThe Misuses of Manipulation The Failure of Transitional Justice inPost-Communist Hungaryrsquo Europe-Asia Studies 58 no 6 (September 2006)925ndash40

Kritz Neil ed lsquoCzech and Slovak Federal Republic Screening (Lustration) Law Act No4511991 (October 4 1991)rsquo Translated in Transitional Justice Washington DCUnited States Institute of Peace Studies vol III (1993) 312ndash21

Kubosova Lucia lsquoSlovakia Pandorarsquos Box Onlinersquo Transitions Online Policy Briefs 16ndash22 November 2004 httpwwwciaonetorgpbei-2tol-1tol_2004nov16-nov22nov16-nov22ehtml

Letki Natalia lsquoLustration and Democratisation in East-Central Europersquo Europe-AsiaStudies 54 no 4 (2002) 529ndash52

Los Maria lsquoLustration and Truth Claims Unfinished Revolutions in Central Europersquo Lawamp Social Inquiry 20 no 1 (Winter 1995) 117ndash61

Lovatt Catherine lsquoSecuritate Shufflersquo Central Europe Review 2 no 15 (17 April 2000)httpwwwce-revieworg0015lovatt15html

Konrad-Adenauer-Stiftung lsquoStatus quo of ldquoLustrationrdquo in South East Europe as of 31January 2008rsquo Rule of Law Program South East Europe httpwwwkasdewfdockas_13092-544-2-30pdf

Memorandum to the Polish Government Assessment of the Progress Made in Implementingthe 2002 Recommendations of the Council of Europe Commissioner for Human RightsCommDH (2007) 13 20 June Strasbourg France 2007

Mica Adriana lsquoThe Lustration with Two Heads and the Myriapod Transitional Justice inRomaniarsquo Paper presented at annual meeting of Law and Society OrganizationBerlin 25 July 2007 httpwwwmemoriarolocationfrac14view_articleampidfrac141881amplfrac14enamppagefrac142

Michnik Adam and Vaclav Havel lsquoJustice or Revengersquo Journal of Democracy 4 no 1(1993) 20ndash7

Minow Martha Between Vengeance and Forgiveness Facing History after Genocide andMass Violence Boston MA Beacon Press 1998

Mishler William and Richard Rose lsquoTrust Distrust and Skepticism About Institutions ofCivil Societyrsquo Studies in Public Policy 252 Glasgow University of Strathclyde Centrefor the Study of Public Policy 1995

Mishler William and Richard Rose lsquoWhat Are the Origins of Political Trust TestingInstitutional and Cultural Theories in Post-Communist Societiesrsquo ComparativePolitical Studies 34 no 1 (February 2001) 30ndash62

Mite Valentinas lsquoPoland Tough Lustratian Law Divides Societyrsquo RFERL online reports23 March 2007 Available at httpwwwrferlorgfeaturesarticle200703

OrsquoDwyer Conor lsquoReforming Regional Governance in East Central EuropeEuropeanization or Domestic Politics as Usualrsquo East European Politics andSocieties 20 no 2 219ndash53

Democratization 375

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14

Offe Claus lsquoComing to Terms with Past Injustices An Introduction to Legal StrategiesAvailable in Post-Communist Societiesrsquo Archives Europeenes de Sociologie 33 no1 (1992) 195ndash201

Offe Claus Varieties of Transition The East European and East German ExperiencesLondon Cambridge University Press 1996

Paczynska Agnieszka lsquoInequality Political Participation and Democratic Deepening inPolandrsquo East European Politics and Societies 19 no 4 (2005) 573ndash613

Posner Eric and Adrian Vermeule lsquoTransitional Justice as Ordinary Justicersquo Harvard LawReview 117 January (2004) 761ndash825

Siklova Jirina lsquoThe Czech Way of Screeningrsquo East European Constitutional ReviewWinter (1996) 57ndash62

Simonov Pavel lsquoPurging Eastern Europe of Evil ndash Lustration from KGB ContinuesrsquoAxisGlobe Information and Analysis Russian Section 15 November 2005 Availableat httpwwwaxisglobecomarticleasparticlefrac14480

Solyom Laszlo lsquoThe Role of Constitutional Courts in the Transition to Democracy WithSpecial Reference to Hungaryrsquo International Sociology 18 no 1 (2003) 133ndash61

Stan Lavinia lsquoThe Politics of Memory in Poland Lustration File Access and CourtProceedingsrsquo Studies in Post-Communism Occasional Paper no 10 (2006)

Stan Lavinia lsquoThe Romanian Anticorruption Billrsquo Studies in Post-Communism Centre forPost Communist Studies St Francis Xavier University Occasional Paper no 6 (2004)

Stan Lavinia and Lucian Turcescu lsquoThe Devilrsquos Confessors Priests Communists Spiesand Informersrsquo East European Politics and Societies 19 no 4 (2005) 655ndash85

Transparency International Corruption Perceptions Index Various years httpwwwtransparencyorgpolicy_researchsurveys_indicescpi2001

Tupy Marian lsquoThe Rise of Populist Parties in Central Europe Big GovernmentCorruption and the Threat to Liberalismrsquo Development Policy AnalysisWashington DC Cato Institute Center for Global Liberty amp Prosperity 2006

United Nations Rule of Law Tools for Post-Conflict States Vetting An OperationalFramework Office of the UN High Commission on Human Rights New YorkUnited Nations HRPUB065 2006

US Department of State lsquoBackground Notes Poland and Romaniarsquo httpwwwstategovrpaeibgn35722htm

Welsh Helga lsquoDealing with the Communist Past Central and East European Experiencesafter 1990rsquo Europe-Asia Studies 48 no 3 (1996) 413ndash29

Williams Kieran lsquoLustration as the Securitization of Democracy in Czechoslovakia and theCzech Republicrsquo Journal of Communist Studies and Transition Politics 19 no 4(December 2003) 1ndash24

Williams Kieran and Aleks Szczerbiak et al lsquoExplaining Lustration in Eastern Europe APost-Communist Politics Approachrsquo SEI Working Paper Sussex European Institute2003

Wolek A lsquoLustration as a Struggle for a New Rules of Politics and a LegitimacyEnhancement in the New Democraciesrsquo Studia Polityczne no 15 (2004) 147ndash201

376 CM Horne

Dow

nloa

ded

by [

Wes

tern

Was

hing

ton

Uni

vers

ity]

[C

ynth

ia M

Hor

ne]

at 1

040

18

Sept

embe

r 20

14