Background

By a letter of 7 September 2012, the President of the Macedonian Constitutional Court asked the Venice Commission to provide an amicus curiae opinion with respect to an application challenging the constitutionality of the Law on determining a criterion for limiting the exercise of public office, access to documents and publishing the cooperation with the bodies of state security (hereinafter: ‘Lustration Law’) pending before the Court.

Standards
The European standards in the field of lustration mainly derive from three sources:

-       the European Convention on Human Rights and Fundamental Freedoms and the jurisprudence of the European Court of Human Rights;

-       the case-law of national constitutional courts;

-       Resolutions by the Parliamentary Assembly of the Council of Europe, namely Res. 1096(1996) on measures to dismantle the heritage of former communist totalitarian systems and Res. 1481(2006) on the need for international condemnation of totalitarian communist regimes. PACE Res 1096(1996) pointed to the ‘Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law’ (hereinafter: “the Guidelines”) as a reference.

The Venice Commission’s amicus curiae opinion on the Albanian lustration law[1] is based upon these standards and further adds to them.

The essence of these standards can be summarized in the following four key-criteria pertaining lustration procedures:

•           guilt must be proven in each individual case;

•           the right of defence, the presumption of innocence and the right to appeal to a court must be guaranteed;

•           the different functions and aims of lustration, namely protection of the newly emerged democracy, and criminal law, i. e. punishing people presumed guilty, have to be observed;

•           lustration has strict limits of time in both the period of its enforcement and the period to be screened. 

Conclusions
The aim of this amicus curiae brief prepared at the request of the Macedonian Constitutional Court is not to assess the constitutionality of the Lustration Law, but to provide the Court with material in respect of the compatibility of this Law with the European Convention on Human Rights as well as elements from comparative constitutional law in order to enrich its own consideration of the case. The final say as regards the binding interpretation of the Macedonian constitution and the limitations it provides to the Lustration Law lies with the Constitutional Court. The Venice Commission stresses that such interpretation is binding on all national institutions from the administrative, judicial and legislative branches, which are obliged to respect it and to adhere to it.

The Venice Commission has analysed the Lustration Law in respect of four main issues: a) its temporal scope of application; b) its personal scope of application; c) the procedural guarantees for the persons to which lustration measures are applied; d) the publication of the names of persons considered to have collaborated with the totalitarian regime.

The Venice Commission has reached the following main conclusions:

a)       Introducing lustration measures a very long time after the beginning of the democratization process in a country risks raising doubts as to their actual goals. Revenge should not prevail over protection of democracy. Cogent reasons are therefore required.

As the purpose of lustration is to bar people with an anti-democratic attitude from office, and as the possibility of positive changes in the attitude and conduct of a person should not be underestimated, applying lustration measures to acts dating back to 21 to 68 years (or even 31-78 years by the time the Lustration Law will expire) may – if at all – be justified on the basis of the most serious forms of crime, in particular massive and repeated violation of fundamental rights which would also give rise to substantial custodial sentence under criminal law.

Applying lustration measures in respect of acts committed after the end of the totalitarian regime may only be justified in the light of exceptional historic and political conditions, and not in a country with a long-established framework of democratic institutions, as a democratic constitutional order should defend itself directly through the implementation of the rule of law and the safeguards of human rights protection. Political, ideological and party reasons should not be used as grounds for lustration measures, as stigmatization and discrimination of political opponents do not represent acceptable means of political struggle in a state governed by the rule of law.

As concerns the duration of the lustration measures, it should depend on the one hand on the progress in establishing a democratic state governed by the rule of law and on the other hand on the capacity for a positive change in attitude and habits of the subject of lustration. A fixed duration for each lustration measure should be provided in order to avoid discriminatory treatment of persons in comparable situation on the basis of when the lustration measures are adopted.

b)      The application of lustration measures to positions in private or semi-private organisations goes beyond the aim of lustration, which is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles.

The contested connection with the totalitarian regime must be defined in a very precise manner.

c)       The absence of the person concerned from the procedure before the Commission on Verification of the Facts is at variance with his or her defence rights, notably the right to equality of arms. The procedure before the Verification Commission and the appeal procedure should be regulated in great detail in order to comply with the principles of the rule of law and due process of law.

d)      The name of the person who is deemed to be a collaborator should only be published after the final decision by a court, as only in case collaboration is finally proven may the adverse effects of publication on that person’s reputation be considered to be a proportionate measure necessary in a democratic society.

 Text of the opinion CDL-AD(2012)028