Institute of Modern Russia

The Post-Soviet “Cleansing of Power”

The post-socialist transition that several countries in the former Soviet sphere went through shows that lustrations, or the systematic purging of government officials previously associated with the Communist Party, are one of the most effective means for promoting successful democratic change. The “cleansing of power” strategy was widely used in a number of former member-states of the Warsaw Pact, including Hungary, Germany, and Poland. In Czechoslovakia, lustrations were carried out under a 1991 law. After Czechoslovakia was peacefully divided into two sovereign states on January 1, 1993, the Czech Republic continued an active process of cleansing in accordance with the aforementioned law and in July 1993 adopted another related law called the Law on the Illegitimacy of and Resistance to the Communist Regime. Slovakia, however, did not demonstrate the same enthusiasm in this regard.

Among all the Soviet-sphere states that have undergone the lustration process, the Baltic nations definitely top the list. In Estonia, former prime minister Mart Laar’s government initiated and successfully carried out lustrations as part of the country’s reform program, which also included economic and judicial reforms, the reshaping of law enforcement bodies, and geopolitical reorientation. In Estonia, as in Latvia, the citizenship law was used as an instrument to further lustration. Estonia restored its 1938 Citizenship Law in 1992, and in 1994, Latvia adopted a citizenship law based on a similar pre-Soviet nationality law of 1919. Lithuania adopted a lustration law in 1999, and its electoral legislation also includes some lustration provisions.

Russia

Russia made its first, and so far its only, step toward lustrations in 1991, before the collapse of the Soviet Union. The Communist Party, which had been Soviet society’s guiding and directing force, was banned in three decrees issued by Boris Yeltsin: Decree No. 79, “On the Suspension of the Activities of the Communist Party of the RSFSR” (August 23, 1991); Decree No. 90, “On the Property of the Communist Party of the Soviet Union (CPSU) and the Communist Party of the RSFSR” (November 6, 1991); and Decree No. 169, “On the Activity of the CPSU and the Communist Party of the RSFSR” (November 6, 1991). Russia’s Constitutional Court pulled the plug on all three of these initiatives by recognizing the CPSU and the Communist Party of the RSFSR as constitutional. “Solomon’s judgment” of November 30, 1992, became one of the first examples of judicial casuistry performed by the Russian Constitutional Court and was primarily directed at preventing a new political crisis. As Gadis Gadzhiyev, presiding judge of the Constitutional Court since its establishment in October 1991, noted in an interview with Novaya Gazeta, the court’s ruling that “the party’s leadership is guilty (not in the criminal sense but in the sense of constitutional law),” and that “these conclusions should not concern the party’s grassroots units and members” was directed at preventing a serious split in society.

There are different opinions on why Yeltsin chose not to carry out lustrations despite the otherwise decisive and tough nature of his reform program. According to the well-known economist Anders Åslund, possible analogies with the party purges of Stalin’s time could have prevented Russia’s president from proceeding with lustrations.¹The negative Russian experience of 1917, when the temporary government, headed by Prince Lvov, eliminated the system of civil service, only worsening matters in the country, could also have influenced Yeltsin’s decision.²

As several former assistants to the first Russian president wrote in the book The Yeltsin Era, the idea of certain drastic changes, including lustrations, appealed to radical democrats and the president himself. However, the “analysis of possible consequences called for caution: in the face of an ideological and political split in society radical measures could lead to the deepening of the existing split and consequently hinder the reform implementation process. Also, Yeltsin could not ignore the weakening of his authority. Although he was still at the top of the hierarchy of leading politicians, his own poll standings were greatly affected during the period of ‘political hibernation’ after the 1993 referendum.”³ According to the same book, at the time, Russia possessed neither enough resources nor sufficient public support to carry out tough reforms in the political sphere. “Under such circumstances,” the authors wrote, “the president thought it would be more sensible to try and make the provincial nomenklatura loyal instead of alienating it.”

Professor Mikhail Krasnov, one of the authors of the book and assistant to the Russian president on legal issues from February 1995 to May 1998, has offered yet another explanation of why Yeltsin chose not to follow the path of lustrations in Russia. “Being a pragmatist and realizing that the post of president is a fundamentally different role than that of a party leader,” Krasnov argues, Yeltsin “could not limit himself to voicing only the opinions of the liberal faction of ‘democrats’ (especially in the sphere of nation-building) since he did not see it as a strong and organized force present throughout the country (instead of only in a few major cities). Here, he worked according to the rule described by José Ortega y Gasset that says that any regime has to take the dominant public mood into account.”⁴

Georgia

Georgia is yet another former Soviet republic that has achieved considerable success in implementing a program of lustrations. After Mikheil Saakashvili came to power in 2004 as a result of Georgia’s Rose Revolution, he set as one of the top priorities of his government the formation of a new type of police force. The transformation of the country’s corrupt, criminalized, and aggressive police force started with the dismissal of about 15,000 traffic officers.

Since it was known that the majority of police officers had criminal affiliations, they were told that if they left quietly with two month’s wages, no criminal cases would be opened against them. The president assumed full responsibility for this risky step and promised to create a new Patrol Police within a month. For almost three months, there was no one to regulate road traffic in Georgia. On August 15, 2004, a new Patrol Police modeled after American state police forces, with new police officers selected on a competitive basis, began operating in Georgia.

In 2011, a lustration law was adopted under which former Communist and Komsomol officials, as well as Soviet secret service operatives, were banned from Parliament, government, the National Security Council, judicial office, and deanship.

Ukraine

In 2014, after the Maidan Revolution, the Verkhovna Rada approved two lustration bills. The law entitled “On Restoring Confidence in the Judicial System of Ukraine” entered into effect in April 2014, and by December 1, 306 judges had stepped down from office. Also on December 1, First Deputy Chairman of the Supreme Court of Ukraine Yaroslav Romanyuk made Ukrainian Supreme Court judges subject to lustrations. In Romanyuk’s opinion, this was a necessary step; however, some provisions of the lustration law contradicted the country’s constitution.

This law gave rise to criticism both in the country and abroad as soon as it entered into effect on October 16, 2014. On November 17, 2014, the Supreme Court of Ukraine appealed to the Constitutional Court of Ukraine, challenging the constitutionality of a number of provisions of the law. Concerned with the way lustrations were being carried out in Ukraine, the Parliamentary Assembly of the Council of Europe called for revision of the lustration law and noted that although it was necessary for Ukraine to carry out lustrations, the procedure itself should be brought in line with Ukraine’s obligations under the European Convention on Human Rights.

The Venice Commission, an advisory body of the Council of Europe, analyzed the law using the following four key criteria that summarize the essence of the international standards pertaining to lustration procedures:

1. Guilt must be proven in each individual case.
2. The right of defense, the presumption of innocence, and the right to appeal to a court must be guaranteed.
3. The different functions and aims of lustrations on the one hand (namely, the protection of the newly emerging democracy) and those of criminal law on the other hand (i.e., punishing people proved guilty) have to be observed.
4. Lustrations have to be carried out within strict time limits in both the period of their enforcement and verification of their political reliability.

After analyzing the law, the Venice Commission came to the following conclusions:

1. Applying lustration measures to the period of Soviet Communist rule so many years after the end of that regime and the enactment of a democratic constitution in Ukraine requires cogent justification of the specific threat that former Communists pose to democracy nowadays. The Venice Commission thus found it difficult to justify lustrations at such a late hour.
2. Applying lustration measures in respect to the recent period of Yanukovych’s presidency would ultimately amount to questioning the actual functioning of the constitutional and legal framework of Ukraine as a democratic state governed by the rule of law.
3. The lustration law has several serious shortcomings. The Commission recommended that at least the following aspects of the law be reconsidered:
   • The list of positions subject to lustrations should be reconsidered, since lustrations must concern only positions that may genuinely pose a significant danger to human rights or democracy.
   • The criteria for lustration should be reworked to specify that guilt must be proven in each individual case.
   • Responsibility for carrying out the lustration process should be removed from the Ministry of Justice and entrusted to a specifically created independent commission.
   • The lustration law should provide for the guarantee to a fair trial.
   • The lustration of judges should be regulated in a separate piece of legislation, and only the High Council of Justice should be granted the authority to dismiss any judge.
   • Information on those persons subject to lustration measures should only be made public after a final judgment by a court.

The Ukrainian experience of delayed lustrations and the position of the Venice Commission on the matter are extremely important for Russia and those former Soviet states that have not yet undergone lustrations but where this question has not yet lost its edge. Lustrations are a medication for a society that needs treatment. This medication should be used in a timely fashion and according to legislative orders. Otherwise, it will prove useless. Delayed lustrations that are carried out in violation of its own fundamental principles, are based on vague criteria, or target an unnecessarily wide circle of people can prove dangerous, as they risk turning the lustration process into another round of repressions.

References:

1. Anders Aslund, Russia’s Capitalist Revolution (2007).
2. Richard Pipes, The Russian Revolution (1991).
3. The Yeltsin Era: Essays in Political History (Мoscow: Vagrius, 2001).
4. M. A. Krasnov, “The Birth of the Russian Constitution: According to Lassalle’s Scenario?” Social Sciences and Modern Times, Issue 4, 2014.