3 January 1995

Doc. 7209

1403-22/12/94-3-E

REPORT

on measures to dismantle communist totalitarian systems

(Rapporteur: Mr ESPERSEN,

Denmark, Socialist Group)

Summary

      Many central and east European countries have adopted laws and regulations to dismantle the communist totalitarian system which formerly dominated their societies. Unfortunately, some of these measures, intended to free the institutions of the state, the society and the economy from the grip of the former single communist party, may be inconsistent with the provisions of the European Convention on Human Rights and may have the effect of undermining citizens' fundamental rights and freedoms.

      This report attempts to define what the principal aims and methods of measures to dismantle communist totalitarian systems should be, and evaluates the measures taken in central and east European states so far. It points out some possible inconsistencies of these measures with human rights and puts forward concrete proposals for ameliorating the situation.

I. Draft resolution

1.       The Assembly is concerned that in some of its member states and states whose legislative assemblies enjoy special guest status, laws and regulations have been passed under the general heading of "measures to dismantle communist totalitarian systems" that might undermine citizens' human rights and fundamental freedoms, and violate the European Convention on Human Rights.

2.       The transition from a communist regime to genuine democracy is like walking a tightrope. On the one hand, there is no question that undemocratic regimes, even when they are not formally communist, tend to violate people's human rights and fundamental freedoms; this is why the dismantling of communism is attempted in the first place. On the other hand, these same attempts at securing fundamental rights and freedoms might jeopardise them — when blanket condemnations supersede individual case law, for example.

3.       While the Assembly understands very well the motivation behind the adoption of such measures to free the institutions of the state, the society and the economy from the grip of the former single Communist Party, it cannot accept measures that might violate the European Convention on Human Rights, however well-intentioned they may be.

4.       The Assembly holds that the main aim of dismantling communist totalitarian systems should be the building up of a democratic society, with a democratic political and legal system and some form of market economy. Attempts at reaching this aim must never become methods of taking revenge on old enemies or letting out hatred, even if this may be a natural reaction to many years of totalitarian rule.

5.       In the pursuit of building up a democratic society in a post-totalitarian country there are certain groups of people — such as former members of the intelligence service, high-ranking members of the communist party, certain members of the legal profession — who often seem to have disqualified themselves from taking part in building up this new society, because they were intricately linked to the old one. However, it is important that even these people — provided they personally were not sentenced (in a court of law, for instance) for violating human rights or committing a criminal act — are co-opted into the new system and given a new chance. A democracy is, after all, hallmarked by its tolerance towards different opinions and points of view.

6.       When laws and regulations are passed that fall under the heading of "measures to dismantle communism", it is important that certain legal principles are not violated. The most significant might be the principle that groups of people may not be punished collectively. Guilt, being individual, not collective, must be individually proved. Before any punishment is dealt out, each case needs to be considered in a court of law, where the right to defence, the presumption of innocence until proven guilty and the possibility of appeal are guaranteed. Other principles that should not be violated concern the notion of Rechtssicherheit, security of law, and involve such provisions as the non-implementation of retroactive laws or the lifting of statutes of limitations.

7.       The Assembly thus:

i.       calls on all member states and states whose parliament enjoys special guest status to examine their laws and regulations and to take back or modify those measures that undermine citizens' fundamental rights and freedoms, especially measures to dismantle communist totalitarian systems, in order to bring them into line with Article 3 of the Statute of the Council of Europe and the provisions of the European Convention on Human Rights and its additional protocols;

ii.       specifically asks its member states not to wait with such modifications until the first cases might be brought against them in the European Court of Human Rights on these measures;

iii.       encourages regional co-operation in the states concerned on this issue, in order to share regional experience on building genuine democracy and dismantling communism;

iv.       offers more active help and assistance to those member states or states whose assembly enjoys special guest status experiencing difficulties in their attempts to replace communist systems, to ensure that the aim of dismantling communist totalitarian systems — constructing a new, democratic society — may be reached in all member states and those whose assembly enjoys special guest status without the adoption of measures that violate human rights.

II. Explanatory memorandum

by Mr ESPERSEN

I. Introduction

1.       The motion for a recommendation on measures to dismantle communism (Doc. 6615) of 7 May 1992 was referred to the Committee on Legal Affairs and Human Rights on 30 June 1992 (Reference No. 1787). The motion asks for the examination of laws and regulations adopted in a number of countries of central and eastern Europe under the general heading of measures to dismantle communism, to find out whether some of them may be inconsistent with the provisions of the European Convention of Human Rights (ECHR).

2.       Indeed, many central and eastern European countries have adopted laws and regulations to free the institutions of the state, the society and the economy from the grip of the former single communist party. Some of these laws and regulations, albeit well-intentioned, may have the effect of undermining citizens' fundamental rights and freedoms.

3.       For example, in a few states in which anti-communist feelings ran very high, laws have been adopted that are characterised by the introduction of blanket condemnations instead of the application of individual case law, possibly leading to the unfair punishment of people who have not formally been found guilty in a court of law.

4.       So as to be able to judge the consistency of measures to dismantle communism — which are, in effect, attempts at "decommunisation" — with human rights, it is necessary to first define what the principal aims and methods of measures to dismantle communist totalitarian systems should be, and what they should not be.

5.       In a second step, an evaluation will be attempted of the measures taken to dismantle communism in central and eastern European states so far, to enable, finally, judgments to be made on the consistency of these measures with human rights, and proposals to be put forward for ameliorating the situation.

II. Aims, methods and pitfalls of measures to dismantle

communist totalitarian systems

6.       The principal aim of all attempts at dismantling communism should be the building up of a democratic society. Of course, this is easier said than done. Building up a democratic society in a country that has languished for long periods of time (up to seventy years) under a totalitarian regime that brutally quashed all resistance requires the laying down of solid foundations before democracy can flourish — and this, too, takes time.

7.       Nevertheless, there are certain things a country must and can do if it wants to become a real democracy: it must create and/or foster institutions of parliamentary democracy on local and on national level — for example, parliamentary assemblies and political parties. It must then hold universal, free, fair and secret elections to these institutions.

8.       In the process of dismantling communism, it is important that all levels of government and society are democratised. This includes the traditional separation of powers between the legislative, the executive, and the jurisdictive branches. But it also means that the people — the electorate — need to be given ample opportunity to participate actively in politics and the building up of the new society in general.

9.       The electorate, so as to be able to make informed decisions about the future of their country, needs to have access to unbiased and factual information. Thus independent institutions of a democratic society, such as a free press and autonomous research centres and universities, are also of prime importance.

10.       The development of a democratic legal system cannot be underestimated in its significance. Respect for and the safeguarding of human rights are essential: in this context, accession to international legal instruments and multilateral organisations, such as the Council of Europe with the European Convention on Human Rights and the United Nations with the Covenant on Human Rights, can be the first steps towards a more secure future for all inhabitants of the countries concerned.

11.       Naturally, it is also very important that the rule of law is established internally. Here, a start can be made with the adoption of a new democratic constitution (or the alteration of an old one in the same vein), and the passing of legally sound laws, especially, for example, a criminal code, a code on criminal procedure, a civil code, and electoral laws. Implementation of these laws should not lag too far behind their adoption. Most important also: the independence of the judiciary must be guaranteed.

12.       Building up a democratic society usually goes hand-in-hand with the construction of some kind of a market economy. Which kind, be it more capitalist or more socialist, and at what speed, from shock-therapy to slow reform, is open to debate. However, it seems to be universally agreed that measures to dismantle communist totalitarian systems, to be effective, must encompass the ending of the old command-economy structures, the allowing of free competition, and some version of privatisation and land reform. Legally speaking, foundations for these measures must be laid through the recognition and protection of different forms of property, the guarantee of freedom of economic activity, of association, and of contract.

13.       Central to the success of all these measures described above is the dealing with the communist past itself. Innocent people who were prosecuted under the communist system for acts or opinions which would be totally legal in a normal democratic society need to be rehabilitated; illegally confiscated property should in general be restituted (or victims compensated for their loss).

14.       However, on a more psychological, but no less important level, dealing with the communist past also implies overcoming certain old habits and changing value-systems: tolerance must be fostered and the individual must be given (and taught to use) increased autonomy. People have to learn to accept responsibility for their own actions and end their blind obedience to higher bodies. Above all, they must become more active in all realms of life.

15.       On a national level, the past can be overcome when it is confronted: factual information regarding the past, for example, on gross human rights abuses perpetrated by the communist regime, needs to be disseminated; but, at the same time, the hatred must end and revenge may not be exacted. The old "two-camps" mentality must disappear and make way for national reconciliation, so that the way is cleared for a better future without being hindered by the vestiges of the past.

16.       However, after decades of living under the yoke of the communist party, it is all to understandable that in many countries a lot of hatred has built up; hatred that seeks its outlet as revenge under the mantle of dismantling communism. Yet, attempts at building up a democratic society — the sole legitimate aim of dismantling communist totalitarian systems — must, as explained before, never become methods of taking revenge on old enemies or letting out hatred.

17.       Similarly, it is all too easy to fall from one extreme into the other: instead of the state dictating one ideology (communism), it may start dictating another (anti-communism). This is unacceptable to a true democracy, of course: democracy should allow for a variety of different political opinions, and should not, in itself, be an ideology.

18.       In the pursuit of building up a democratic society in a post-totalitarian country there are certain groups of people — such as former members of the intelligence service, high-ranking members of the Communist Party, certain members of the legal profession — who often seem to have disqualified themselves from taking part in building up this new society, because they were so prominent in the old one. However, it is very important that even these people — provided they personally have not been proved guilty (for example, in a court of law) of violating human rights or committing a criminal act — are co-opted into the new system and given a new chance. People, after all, can learn from their mistakes and change their points of view.

19.       This is not to be understood as a blank cheque for criminals, of course. Criminal acts committed by individuals have to be prosecuted, and punished — a general pardon for all the crimes committed under the former regime would be very unfair to the victims of those crimes and could de-stabilise the new society. If, for example, a former judge allowed judicial murders, he should be brought to trial and sentenced, provided he is found guilty. But prosecuting collective guilt instead of individual criminal acts is neither compatible with the principles of human rights and the rule of law, nor is it advantageous for the country in transition: it can breed resentment in a large group of people, and thus endanger the emerging new democratic society from the start.

20.       Naturally, the large majority of people living under the former communist regime were neither political criminals, nor (necessarily) their victims. For these people, who out of fear, necessity or ignorance went along with the regime and did not protest against it, confronting the past is of prime importance before they look into the future. "Decommunisation" in central and eastern European countries, like denazification in Germany beforehand, must not be an excuse for avoiding to confront the past on a rational and emotional level. It is too easy to dismiss the experience of the communist regime out of hand and to claim that one knew nothing of the crimes committed and was thus not implicated in them. The large majority of people need to examine their conscience and come to terms with their past, so that they will never become silent accomplices to such crimes again.

III. Evaluation of measures to dismantle communist totalitarian systems

in central and eastern European countries so far

A.       Positive developments

21.       Quite a few countries have made considerable progress in dismantling communism, without undermining citizen's fundamental rights and freedoms. The most effective efforts usually concentrated on building up a democratic pluralist society and legal system, which had the "side-effect" of dismantling communism. Free and fair elections, emphasis on new, fairer laws and an independent judiciary, plus a torrent of information on the past (leading to the rehabilitation of many innocent people and a tacit re-interpretation of history) should be named here.

22.       As one example out of many, the adoption of a law in 1990 in Czechoslovakia on the legal rehabilitation of those people sentenced for crimes of opinion and opposition to the state can be given. A resolution passed in January 1991 in the same country on the "screening" of deputies in parliament, members of the government and judges in the same country also seems to fulfil the requirements of effective measures to dismantle communism: the resolution specified that collaborators of the old security police, after having been found out and notified by a special parliamentary commission, would have fifteen days to step down from their posts — otherwise, their names would be made public. No other sanctions would follow.

B.       Negative developments

23.       However, even the more successful countries sometimes stumbled on the way. There seem to be two negative extremes that a country trying to dismantle communism can go towards. But they both seem to have in common little popular participation in the democratisation and "decommunisation" process.

24.       Extreme 1 may be called "too hasty" and is characterised by too many attempts to go forward before first confronting, and dealing with the past. In these attempts at dismantling communism, hatred and the thirst for revenge seem to get the upper hand, resulting in blanket condemnations of the totalitarian past, combined with the wish to do exactly the opposite of what the communists did, even when this is unwise. Often, blanket laws are passed, instead of individual cases being considered in the courts; some of these laws might actually be in violation of citizens' human rights and fundamental freedoms. The atmosphere in these countries is usually tense, since national reconciliation is lacking, and tolerance for opinions different to one's own is missing.

25.       Extreme 2 may be called "too slow" and is characterised by the lack of proper reform and initiative. Often, the old elites manage to stay in power, or be elected back into power. Democracy in these countries is often derided as a method of gaining riches and power for a few elect, and is not understood as a value-system at all. Thus, no real democracy is built up, the rule of law is patchy (if it exists at all), the judiciary is not independent, and possibly the free press and other similar institutions are repressed, while the general atmosphere is one of lingering fear. If the dismantling of communist totalitarian systems is not attempted with any vigour, communism can then live on under a new guise.

C.       Examples and evaluation

26.       Obviously, the transition from a communist regime to genuine democracy is like walking a tightrope. On the one hand, there is no question that undemocratic regimes, even when they are not formally communist, tend to violate citizen's human rights and fundamental freedoms; this is why the dismantling of communist totalitarian systems is attempted in the first place. On the other hand, these same attempts at securing citizen's fundamental rights and freedoms might jeopardise them — when blanket condemnations supersede individual case law, for example.

27.       This was the case with Czechoslovakia's "Screening Act" of 4 October 1991. The law prescribed certain additional prerequisites for the exercise of functions filled by election, appointment or assignment in the state administration, the army, the police and intelligence services, the offices of high parliamentary, governmental and judicial institutions, state broadcasting corporations, enterprises and organisations, etc., for a period of five years. Judges, assessors, prosecutors, investigators, notaries and arbiters also had to fulfil these prerequisites. The main prerequisites were not to have been, in the period from 25 February 1948 to 17 November 1989, a member or a conscious collaborator of the State Security, a high-ranking member of the Communist Party or organisations controlled by it, a member of the People's Militias or a student at certain schools in Moscow. The law also applied to so-called "candidates for collaboration" of the State Security.

28.       The law attracted considerable controversy both in Czechoslovakia itself and internationally. The then-President of Czechoslovakia, Mr Havel, wrote a letter criticising some aspects of the law to Mr Dubcek, President of the Federal Parliament; the then-Secretary General of the Council of Europe, Mrs Lalumière, and the President of the European Commission for Democracy through Law at the Council of Europe, Mr Pergola, also criticised the law. In November 1992, the law was examined by the Czechoslovak Constitutional Court, which struck down the provisions concerning "candidates for collaboration", but it seems that the remaining provisions of the law are still in force today and will be until 31 December 1996.

29.       There are several principles that were violated by the Czechoslovak "Screening Act". Perhaps its most serious shortcoming was that it did not allow for a proper judicial review. In international law, however, guilt, being individual, not collective, must be individually proved — this highlights the need for the individual, and not collective, application of this kind of law. The victims of the law were being deprived of some essential legal rights: the right to a decision by an independent body (that is a court of law), the right to defence, the presumption of innocence until proven guilty and the possibility of appeal. The "Screening Act" denied its victims these due process protections, since it imposed penalties — in this case, the rather serious one of losing one's job and good reputation — through legislative enactments rather than the judicial process. Additionally, the law discriminated on the basis of political affiliation and belief, and was applied retroactively.

30.       All in all, it can be assumed that the Czechoslovak "Screening Act" probably violated the European Convention on Human Rights (ECHR), even though Mr Matscher, Judge at the European Court of Human Rights, and Mrs Liddy, Member of the European Commission of Human Rights found in their report of 23 March 1993 on the legislation in the Czech Republic only that they "could not exclude that its application might arguably give rise to a human rights problem ... but could not say ... that there was a clear conflict with the Convention ...". This Czechoslovak act, however, was not the only one: screening or verification acts were being discussed in 1992 in Bulgaria, Lithuania and Poland, too. The Czech Republic also has a "lustration" law, but its scope is said to be smaller than that of the former Czechoslovak one, and is reportedly not employed very often.

31.       The Bulgarian banking privatisation law banned former high-ranking communists from holding positions in the managing bodies of banks from March 1992 until March 1993, when it was repealed by the Constitutional Court. The so-called "Panev" law on the interim introduction of some additional requirements for the members of the governing bodies of scientific institutions and for the members of the High Testimonial Commission, also adopted in 1992, aroused more controversy. According to the law, all members of (or candidates for election for) governing bodies of universities and research institutes, as well as the Higher Testimonial Commission (a central academic body, with the function, amongst others, of examining and approving the award of academic and scientific degrees) have to submit a written declaration, certifying that they meet the new requirement provided for in the law — not having been a former member of the communist "nomenclature" (for example, a former functionary of the Bulgarian Communist Party on top or medium level, an employee or informer of the secret services, or a lecturer in "ideological" subjects). A refusal to sign such a declaration is considered equal to admission that the person in question does not meet this requirement.

32.       This "Panev" law did not provide for examination of individual cases by an independent body, nor allowed for a judicial review. It appears likely that several fundamental rights are violated by the law, notably the right to due process and the right to be heard. The law was criticised to this effect in the 1993 annual report of the United States State Department on the human rights situation in the world and the 1993 annual report of the International Helsinki Federation for Human Rights. The law was upheld by the Constitutional Court in February 1993, and is being implemented. New academic governing bodies have been elected following these legal provisions in force.

33.       Other similar measures (although in these the possible violation of the ECHR may be less eye-catching) were common even in western countries. For example, in Germany after re-unification, questionnaires were sent out to all state employees of the former German Democratic Republic (GDR); in them, various questions were posed on subjects such as membership in political parties or mass social organisations, or orders and decorations received from the GDR. On its basis, some teachers, for example, seem to have been dismissed. The legal foundations for these actions were laid in the reunification agreement which included a passage that allowed for the dismissal of state employees who had violated the principles of human rights and the rule of law — which, the Rapporteur finds, is a rather hazy formulation — and for employees who had formerly worked for the Ministry of State Security Stasi. According to Mr Wolfgang Novak, State Secretary for Education of the eastern German Land of Saxony, in his Land alone some 13 500 teachers and administrators have been dismissed in the period between 1991 and 1993 on this basis.

34.       Another popular measure is lifting the statute of limitations on crimes committed during the communist reign. In Hungary, for example, parliament passed a bill that lifted the thirty-year statute of limitation on crimes of treason, murder and fatal injury committed between 1944 and 1990. Although this bill was declared unconstitutional by Hungary's Constitutional Court on 3 March 1992, on the basis that statutes of limitations should not be lifted to make prosecutions possible after time has run out, Poland's parliament adopted a similar draft law on 4 June 1993, which made it possible to prosecute crimes committed between 1945 and 1989 that had not been prosecuted before for political reasons. In September 1993, the German Bundestag enacted a law extending the statute of limitations on crimes committed in the former GDR to 31 December 1997, for violations punishable by five years imprisonment, and to 31 December 1995, for crimes punishable by up to one year imprisonment. The German Constitutional Court upheld the extension because in their view statutes of limitations were a procedural rather than a substantive matter.

35.       On 1 August 1993 a law "on the unlawfulness of the communist regime and on resistance against it" came into force in the Czech Republic (without a time limit like in the "Screening Act"). In Article 1, the law states that "joint responsibility for the crimes committed ... must be fully shared by those who put the communist regime into effect as functionaries, organisers and inciters within the political and ideological realm". Article 5 of the same law then stipulates: "The period from 25 February 1948 and 28 December 1989 shall not be included in the term of prescription for criminal offences, if — for political reasons incompatible with the fundamental principles underlying the legislation of a democratic state — the person concerned has failed to be validly convicted or acquitted". The law thus treads squarely in the footsteps of the Hungarian law declared unconstitutional. It seems to violate the ECHR on two grounds: the prescription, again, of collective guilt, and the lifting of the statute of limitations, which endangers the principle of Rechtssicherheit: security of law.

36.       Measures to dismantle communism do not have to be retro-active to be directed against communists: the Czechoslovak parliament passed a bill amending Article 260 of the Criminal Code, making it illegal (and punishable by prison sentences) to support movements that propagate communism. The Criminal Code already has a similar provision on fascism. While it may be doubtful if these provisions actually violate the ECHR (although Articles 10 and 11 of the ECHR protect the right to the freedom of expression and the freedom of association), because national security interests may take precedence, it is in the opinion of the rapporteur unwise to have such provisions in the Criminal Code. Usually it is much better to fight communist and fascist movements in the political arena, than to prosecute them and make them go underground — where they are even less controllable and might get more public sympathy as "martyrs".

37.       On the other side of the extremes, if measures to dismantle communism are not applied forcefully enough, laws may be passed that also violate the ECHR. For example, in Belarus a law on the KGB in Belarus was adopted in first reading in spring 1993, which gives the KGB enormous powers — including the right to run their own pre-trial detention centres, to announce and pay bonuses for those who help to uncover crimes and detain criminals, to attach employees of the KGB to any enterprises, establishments and organisations, etc. If one looks at this law, there does not seem to be much difference between the new KGB in Belarus and the Soviet KGB of old — which certainly did violate the human rights of large parts of the population.

IV. Proposals of the Rapporteur

38.       The Rapporteur thinks that those member states and states enjoying special guest status which have implemented measures that undermine citizen's fundamental rights and freedoms, especially those intended (declared or not) to dismantle communism, need to take back or modify these laws and regulations and bring them into line with the provisions of the European Convention on Human Rights. Member states should not wait until the first cases may be brought against them in the European Court of Human Rights on these measures.

39.       The Rapporteur wishes to promote regional co-operation of the states of central and eastern Europe on this issue: some states where a lot of progress has been made on building genuine democracy and dismantling communism without undermining human rights might be best placed to help their neighbours, because they share the same experience. The co-operation in the Baltic Sea region — through the Council of Baltic Sea States, of which ten states are a member — might be given as an example for effective regional co-operation also in the field of human rights.

40.       Already, the Council of Europe has several co-operation and assistance programmes with central and eastern European states. In addition to the well-known "Demosthenes" and "Demosthenes-bis" programmes, in 1993 the "Themis" programme, for the training of all pillars of the "justice branch", and the "LODE" programme, for the development of local democracy and training of local authorities, were introduced.

41.       As a consequence, the Rapporteur would like to encourage those member states or special guests experiencing difficulties in their attempts to dismantle communism to turn to the Council of Europe for help, if they have not done so already. The Council can assist them by, for example, sending out experts to give assistance in the drafting of new laws and constitutions, or holding seminars on the building up of new administrations and democracy in general, in the framework of its co-operation and assistance programmes.

42.       It should be the ultimate goal of the Council of Europe to ensure that the aim of dismantling communist totalitarian systems — constructing a new, democratic society — may be reached in all member states and those enjoying special guest status without the adoption of measures that violate or might violate human rights.

      Reporting committee: Committee on Legal Affairs and Human Rights.

      Budgetary implications for the Assembly: none.

      Reference to committee: Doc. 6615, Reference No. 1787 of 30 June 1992.

      Draft resolution adopted unanimously by the committee on 24 October 1994.

      Members of the committee: Lord Kirkhill (Chairman), MM. Schwimmer, Jansson, (Vice-Chairmen), Amaral, Andriukaitis, Arnalds, Bentkowski, Berti, Bindig, Borg, Bučar, Candal, Columberg, Croze, Deasy, Mrs Err, MM. Espersen, Fogaš, Franck, Frunda, Fry, Fuhrmann, Galanos (Alternate: Hadjidemetriou), Mrs Gelderblom-Lankhout, MM. Ghigo, Guenov, Hagård, Mrs Haller (Alternate: Mr Schiesser), Mrs Holand, MM. Hunault, Inönü, Mrs Jaani, MM. Jaskiernia, Karas, Kempinaire, Loutfi, van der Maelen, Maginas, Mangakis, Mészáros, Németh, Rathbone, Robles Fraga (Alternate: Lopez Henares), Rodeghiero, Salvi, von Schmude, Severin, Solé Tura, Mrs Soutendijk-van Appeldoorn, MM. Trojan, Vinçon (Alternate: Jeambrun), Vogel, Mrs Wohlwend, N ... (Alternate: Mimaroglu).

      N.B.       The names of those members who took part in the vote are printed in italics.

      Secretaries to the committee: Mr Plate, Ms Bakardjieva and Ms Kleinsorge.