Since coming to power in Poland in 2015, the Law and Justice Party has introduced a new wave of transitional justice measures. Among them is a partial and gradual change of the Polish lustration model from a historical clarification mechanism, in which sanctions were imposed only for submitting a false lustration statement, towards a retribution instrument, in which former communist security service employees, officers, and collaborators are banned from holding certain public offices. These changes are not only at odds both with the Polish Constitution and the European Convention on Human Rights, but are also a worrying sign of a departure from the model of inclusive democracy that Poland has been trying to build since 1989.
Michał Krotoszyński is an assistant professor at the Faculty of Law and Administration, Adam Mickiewicz University, Poznań, Poland.
Two models of lustration proceedings
After the fall of communism, many countries of the former Eastern Bloc found it necessary to introduce some kind of lustration measures. Lustration can be understood as a vetting mechanism because lustration regulations stipulate if – and under what conditions – people who had been linked to the former communist regime can participate in democratic public life. There are two types of lustration proceedings: the ones which belong to the retribution model and the ones which are an instrument of historical clarification.
In the retribution model, people associated with the former communist regime – e.g. its top government officials, members of the upper echelon of the communist party and/or officers, employees, and secret collaborators with communist security services – are banned from holding certain offices in the public sphere, practicing in the legal profession, and/or running in elections. Thus, lustration belonging to the retribution model is based on retroactive sanctions imposed on individuals for their ties to the communist regime. A classic example of this model are two lustration laws introduced in the former Czechoslovakia in 1991 and 1992 which are still in force in the Czech Republic.
On the other hand, both the pre-existing Polish lustration laws before 2015 – the one introduced in 1997 and the subsequent regulation enacted in 2006 – belong to the historical clarification model. In this model, there is no retroactive punishment. Instead, individuals running for office are required to submit a lustration statement on their links to the previous regime (in the case of the Polish lustration law: on whether they were employees, officers, or secret collaborators with the communist security service). Only if this declaration is proven to be false is an individual banned from holding public offices for a prescribed period of time.
Change of the model
Until 2015, the only exception to the Polish historical clarification model was a ban on former communist secret service employees, officers, and collaborators from holding positions in the Institute of National Remembrance and the Central Anti-Corruption Bureau, and from managing certain security agencies. However, since 2015, the government has introduced a similar ban covering over 30 new posts. These include not only Supreme Court judges, prosecutors, diplomats, employees of the revenue service, directors of national agencies and institutes, and certain university positions, but also professorship candidates, and even board members of hunting clubs and sports associations.
These restrictions were not imposed in one lustration act, but instead were introduced in a number of statutes in a gradual, step-by-step manner. Some of the statutes were new acts which created public institutions, while other simply amended existing regulations. With the exception of the diplomatic services, no statute concentrated solely on purging existing institutions: instead, the ban was introduced among other requirements necessary for holding certain public offices. Thus, there has been no order or hierarchy in imposing restrictions: for instance, the ban first covered National Health Services inspectors and only later the NHS Director; it extends to the SMEs Ombudsman, but not to the Commissioner for Protection of Civil Rights (i.e. the main Polish Ombudsman). Finally, the restrictions supplement, rather than replace, the obligation to submit a lustration statement. However, as confessing to ties with the former communist secret service results in a ban from holding public offices, as described above, the changes signify a partial shift of the Polish lustration model from an instrument of historical clarification to a retribution measure. While in the last two years this gradual shift has significantly lost its momentum, there was no attempt to repeal any of the changes. Therefore, one may argue that this is rather due to the lawmakers’ preoccupation with other, more urgent matters (like the COVID-19 pandemic and the war in Ukraine) than with a change in the government policies.
Constitutional and human rights problems
The change is highly problematic. From a legal point of view, the restrictions cause serious concerns as to their conformity with both the Polish Constitution and the European Convention on Human Rights for at least four reasons.
Banning individuals from holding certain positions restricts their right to access public offices, to choose professions, or to have their private life respected. To be consistent with the rule of law, these restrictions need to be proportionate. In the post-transitional context, this means that there needs to be a significant reason – such as a threat to the democratic institutions – to justify such exclusions. However, the more time that passes since the transition, the less probable it is that introducing such restrictions will pass this test. As the ECtHR has stated, for example, in Ivanovski v. the Former Yugoslav Republic of Macedonia: “Although the Act’s belated timing is not in itself decisive it may nonetheless be considered relevant when assessing the proportionality of the interference (…), given that any threat those being lustrated could initially pose to the newly created democracy must have considerably decreased with the passage of time”. The Polish regulations, introduced more than 25 years after the transition, also seem to fail this test: there is no reason to believe that former secret service officers, employees, or collaborators currently pose a threat to Polish democratic institutions.
What is more, in order to be proportionate, lustration measures should also be individualised. This requirement was articulated both by the ECtHR and the Polish Constitutional Tribunal (PCT), the latter quoting a 1996 Council of Europe Parliamentary Assembly Resolution. Unfortunately, the restrictions imposed by the government offer no individualisation of responsibility, as the ban is imposed on all former security service employees, officers, and secret collaborators, regardless of the scope of their involvement or the harm they caused.
According to the ECtHR, as loyalty to the state is a requirement inherent only for employment in the public sphere, the lustration should generally be restricted to such positions and not extend to the private sector. In the judgment of 11 May 2007, the PCT also explicitly stated that lustration – in the form of an historical clarification instrument – of sport associations board members and people holding top posts at private universities is unconstitutional. Yet, the more recent harsher retribution measures also cover these positions. Other inclusions are also doubtful, including professorship candidates.
Finally, lustration also covers those who had confessed to having had ties with the communist secret service in their lustration statements. These statements may now be used to disqualify those individuals from holding certain public offices (in fact, in the case of diplomats the law directly ordered this course of action). Yet these statements were submitted on the basis of reasonable trust that no sanctions would be imposed on those who confessed to work for, or collaborate with the communist secret service. Such a breach of trust by the government simply cannot be accepted in a democratic state ruled by law.
A change toward a non-inclusive political system
The peaceful and negotiated character of the 1989 Polish transition was the main reason why the democratic government consciously decided to create an inclusive democratic system, where positions in the public sphere could also be held by ex-communists. This model meant that, while transitional justice measures were widely implemented, those with ties to the pre-transitional system could still participate in democratic public life under certain conditions. This was most evident in the case of the Polish lustration laws, which imposed sanctions only on people who lacked the integrity to speak openly about their past. On the contrary, a truthful confession to past ties with the communist secret service was enough to prove that an individual was sufficiently loyal to the democratic state to act in the public sphere. On the ethical level, this model expressed belief in an individual’s capacity for change.
The change of the Polish lustration model reflects a turn towards a non-inclusive political system. While the elected offices are still unaffected, this change results in restricting the rights of individuals to hold public offices or to conduct the profession of their choice. The ban covers both the public and, to a lesser extent, the private sphere, and it is imposed even on those who proved their loyalty to the democratic state with truthful lustration statements. Regardless of the number of people affected, it is a sign of a significant shift in the rules the political system is based on.
This shift is no coincidence, but rather a result of a specific understanding of the goals of political transition which, according to the current government, must also include a major shake-up of political, social and economic hierarchies. As Jarosław Kaczyński himself claimed in his 2011 book “Poland of Our Dreams” his political party believed in the early 90’s that “four processes need to be implemented in Poland: the introduction of democracy and democratic institutions, the introduction of a market economy (…), the creation of new state institutions, and the establishment of a new social hierarchy (the previous one used its influence and privileges to acquire dominance in the sphere of property rights). With various shortcomings, the first two goals were achieved, while the fulfilment of the remaining ones was not pursued”. For the Law and Justice leader, without this change the state cannot function properly; as he argued in another book published in 2014, in such a case “the keys of the piano cannot reach to the strings” and “one plays from a new music sheet but hears an old melody”.
From the perspective of the government, the inclusiveness of the democratic system is not a virtue but rather a sign that the political transformation is incomplete. As the disqualification from holding public offices induces an exchange of personnel, it is perceived by the government as one of the tools for achieving such a transformation. Yet, such a purge can hardly be seen as necessary and justified in a mature democracy. This demonstrates why the change of the Polish lustration model is an unsettling symptom of Poland’s departure from the model of an inclusive liberal democracy based on the rule of law, even if the pace of this change has slowed significantly in the last two years and its personal scope remains restricted.
Even though in post-transitional Poland lustration was often the centre of public attention, so far, the changes described above have gone largely unnoticed. Unfortunately, from the legal point of view, they are yet another example of Poland’s current problems with upholding the rule of law. Restricting the access to state positions and certain professions also raises concerns from the democratic perspective, as it provides an exemption from otherwise equal rights to participate in the political, social, and economic life, which is one of the cornerstones of modern liberal democracy.
This post is partly based on a paper “Polish Lustration After 2015: Change of the Model and Constitutional Problems” which was published in Polish in “Przegląd Konstytucyjny” (“Constitutional Review”), No. 4/2021, pp. 116-142, as well as on a working paper “From Legal Impossibilism to the Rule of Law Crisis: Transitional Justice and Polish Counter-Constitutionalism”, published in the iCourts Working Paper Series (No. 304).
In collaboration with Karen Culver