Lustration:from the Latin lustratio, meaning "purification by sacrifice"
Lustration is the removal of public officials and judges who are associated with a tainted political regime. It has been used as a tool of transitional justice in newly independent and postconflict countries. Lustrating begins with vetting—a review of conduct and competency. Individuals associated with the discredited government, and credibly accused of corruption or human rights violations, are dismissed. Officials appointed on the basis of political connections may be removed or reassigned to lower-level positions. Lustration also can be implemented indirectly, as with lowering the mandatory retirement age for judges.
“Vetting and Lustration” laws were passed in Germany after World War II. Government officials found to have been actively involved with (or sympathetic to) the Nazi party were dismissed; this included prosecutors, prison officials, and judges. Judicial lustration was used in Central and Eastern Europe immediately after the fall of communism. Czechoslovakia’s 1991 Lustration Act banned former Communist Party officials and “collaborators of the secret police” from most government offices and the courts. All executive and judicial branch officials were vetted. Many evaded sanction, others were removed from positions of authority, and few were dismissed. Poland’s 1997 lustration law was enacted to limit the power and influence of former Communist Party members who collaborated with the secret police. Poland enacted a new judicial lustration law in 2019, reducing the mandatory retirement age for judges. The law was considered necessary to remove remaining communist-era judges, prompting the dismissal of most supreme and constitutional court judges. It was denounced as a pretext for undermining judicial independence, criticized by the European Court of Justice, and ultimately found unconstitutional by Poland’s Constitutional Court.
Despite many attempts, Georgia did not implement a lustration law until 2011. Its Freedom Charter aimed to remove all symbols and lingering influence of the authoritarian communist regime and included provisions for lustration. The lustration law, challenged as overbroad and discriminatory, was declared unconstitutional in 2015.
After the 2013–2014 Euromaidan protests in Ukraine, a special commission of the Lustration Committee attached to the Cabinet of Ministers reviewed the rulings of judges whose decisions restricted the rights of citizens to hold rallies and protests. Albania, Czechoslovakia, and Hungary, also experimented with lustration.
Quasi-lustration vetting polices have been implemented in other countries, including postconflict Argentina, Kenya, and Tunisia. In 2009, Pakistan’s Supreme Court held void the former military regime’s judicial appointments. While the ruling was not an official lustration policy, the judges appointed during the 2007 “emergency period” were removed and those dismissed by General Perez Musharaff were reappointed.
Lustration is fraught with challenges, including the risk of renewed politicization. In 1990, when Lech Walesa assumed leadership of Poland, he rejected calls for lustration, raising concerns that it would lead to a witch hunt (though Poland did later enact lustration laws, as mentioned above). After the fall of Saddam Hussein in Iraq, the Coalition-led de-Baathification campaign included the removal of judges. Its implementation was opaque, did not include the evaluation of professional qualifications, and failed to involve community leaders.
Lustration may be a part of legitimate reform efforts to improve the court system and enhance accountability. However, the process must be transparent, afford due process, and focus on evaluating knowledge, skills, and professionalism.
Parliamentary Assembly of the Council of Europe:
Measures to Dismantle the Heritage of Former Communist Totalitarian Systems (1996)
Concerning the treatment of persons who did not commit any crimes that can be prosecuted … but … held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now. … [L]ustration laws and similar administrative measures (should) comply with the requirements of a state based on the rule of law and focus on threats to fundamental human rights and the democratisation process.