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Transitional Injustice? Criteria for Conformity of Lustration to the Right to Political Expression

2004; Routledge; Volume: 56; Issue: 6 Linguagem: Inglês

10.1080/0966813042000258042

1465-3427

Roman David,

Historical and Contemporary Political Dynamics

Click to increase image sizeClick to decrease image size Notes I am grateful to Susanne Y. P. Choi, Andrew Rens and Christopher Roederer for their valuable comments, to the University of the Witwatersrand and the South African National Research Foundation for their support and to the RSS, Prague, for financing my fieldwork in the Czech Republic, Poland, Slovakia and Slovenia, which was part of grant No: 1636/245/1998. See generally Neil J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington, DC, United States Institute of Peace, 1995); J. A. McAdams (ed.), Transitional Justice and the Rule of Law in New Democracies (Notre Dame, IN, University of Notre Dame Press, 1996); Ruti G. Teitel, Transitional Justice (Oxford, OUP, 2000); 'Law and Lustration: Righting the Wrongs of the Past,' Law & Social Inquiry (special issue), 20, 1, 1995, pp. 7–273. (All these publications also offer an insight into the problems of lustration.) For the origin of the word 'lustrace' see R. David, 'Lustration Laws in Action: The Motives and Evaluation of Lustration Policies in the Czech Republic and Poland,' Law & Social Inquiry, 28, 2, 2003, pp. 387–388. See generally 'Constitution Watch', East European Constitutional Review, quarterly country reports, 1992–2003; Kritz (ed.), Transitional Justice. The term and the dynamic of 'capital conversion process' are described by Maria Loś & Andrzej Zybertowicz, Privatizing the Police State: The Case of Poland (London, Macmillan and New York, St Martin's Press, 2000). For the activities of these networks see David, 'Lustration Laws in Action'; A. Tucker, 'Paranoids may be Prosecuted: Post‐totalitarian Retroactive Justice', Archives Europeennes de Sociologie, XL, 56, 1999. See N. Letki, 'Lustration and Democratisation in East‐Central Europe', Europe‐Asia Studies, 54, 4, 2002, p. 529; V. Cepl & M. Gillis, 'Making Amends after Communism', Journal of Democracy, 7, 4, 1996, pp. 118, 122–124 (stating that 'without rehabilitation, lustration, and restitution, there will be no transformation'); David, 'Lustration Laws in Action'. Personnel changes in public administration seem to be vital for democratic consolidation elsewhere. Cf. Radio Prague News, 19 March 1999, 'Here in Prague, the visiting Chilean President Eduardo Frei stressed the need to thoroughly cleanse state and government institutions of people implicated with former totalitarian regimes. The Chilean president … took a lively interest in the Czech legislation that requires mandatory screening of state officials'. For some scholarly criticism see for example H. Schwarz, 'Lustration in Eastern Europe', Parker School Journal of East European Law, 1, 1994, p. 2; R. Boed, 'An Evaluation of the Legality and Efficacy of Lustration as a Tool of Transitional Justice', Columbia Journal of Transnational Law, 38, 1999, p. 357. See also A. Michnik & V. Havel, 'Confronting the Past: Justice or Revenge?', Journal of Democracy, 4, 1, 1993, p. 23. Parliamentary Assembly of the Council of Europe, 'Resolution on Measures to Dismantle the Heritage of Former Communist Totalitarian Systems', Doc. No. 1096 (1996). Report of the Committee Set Up to Examine the Representations Made by the Trade Union Association of Bohemia, Moravia, and Slovakia and by the Czech and Slovak Confederation of Trade Unions under Article 24 of the ILO Constitution alleging Non‐Observance by CSFR of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111)', LXXV ILO Official Bulletin, Supp. 1, Ser. B, 1992 (hereinafter ILO Report). The ILO repeated its criticism in 1993 and 1999. See Helsinki Watch, 'International Helsinki Federation for Human Rights and Project on Justice in Times of Transition, Memorandum on the Applicability of International Agreements to the Screening Law', 1992, reprinted in Kritz (ed.), Transitional Justice, p. 335 (hereinafter Memorandum). The memorandum was signed by Lloyd Cutler, Diane Orentlicher, Herman Schwartz. The 'de‐Baathification' policy pursued by the occupying authorities in Iraq and designed against former members of the Baath Party, one of the political instruments of Saddam's oppression, is a case in point. Order 1, signed by Paul Bremmer, the head of the Coalition Provisional Authority, in May 2003 facilitated exclusion of certain party members from certain administrative positions. The distinction between lustration and de‐communisation is common among scholars writing on the Polish lustration law, which does not include members of the former Communist Party (PZPR). See for example A. Szczerbiak, 'Dealing with the Communist Past or the Politics of the Present? Lustration in Post‐Communist Poland,' Europe‐Asia Studies, 54, 4, 2002, pp. 553–554. See for example Mirna Solic, 'Screening Law Still Remains in Place Twelve Years After the Fall of Communism', Radio Prague News, 26 June 2003, http://www.radio.cz/print/en/42279. See also Václav Žák, 'Justice or Lustration?', The New Presence, August 1998, http://www.new‐presence.cz/98/08/. 'Act that Prescribes Certain Additional Prerequisites for the Exercise of Certain Positions Filled by Election, Appointment, or Assignment in the State Organs and Organisations', Act No. 451/1991 Sb. See for example the ILO Report. See Decision of the Constitutional Court of CSFR, Pl. ÚS 1/92, 26 November 1992, English translation available at ⟨http://www.concourt.cz/angl_verze/doc/p‐1‐92.html⟩. See CTK (the Czech Press Agency), 'Havel Declines to Sign Amendments to Screening Laws', 16 November 2000, 'Mr President did not sign the laws in 1995 either because he did not want to justify the five‐year period of waiting for the bills on the civil service', a presidential spokesman said, adding that 'for this reason Havel would not allow another five‐year waiting period'. The lustration law is to be incorporated into the law on the civil service. Decision of the Constitutional Court of CR, Pl. ÚS 9/01, 5 December 2001. Naturally, prosecutors, investigators and judges cannot be transferred to a lower position. It adopts the feature of the tort law principle res ipsa loquitur (the thing speaks for itself). 'We know that a wrong occurred and that the persons in question were in control of the instrumentality which brought about the wrong when it occurred, but we do not have more specific evidence to prove the actual event. Nonetheless, the law in this field does not throw its hands up and declare that nothing can be done', M. Gillis, 'Lustration and Decommunisation', in J. Přibáň & J. Young (eds), The Rule of Law in Central Europe, 56, 64, 1999. However, there can be no doubt that a choice of particular procedures must take into account the scope of law and vice versa; see the section on limitations in the Conclusion to this article. 'In areas of protected freedoms, regulation based upon mere association and not upon proof of misconduct or even of intention to act unlawfully, must at least be accompanied by standards or procedural protections sufficient to safeguard against indiscriminate application', United States v. Robel, 389 U.S. 258, 282. See Lustration Law, § 18 (2). See also Act No. 99/1963 Sb., Civil Procedures, § 9 (2) d) and § 10 (2), in the current version. Decision of 13 April 1992, in Nejvyšší soud ČSFR, Sbírka soudních rozhodnutí a stanovisek, 1992, 6, p. 273. The law concerns only leading positions in the listed organisations. It does not affect employees therein with the exception of those in the justice system. Hence the petition of the Czech unions submitted to the ILO (see ILO Report) appears to be a political rather than social concern since principal officials are not supposed to be members of a union. The same is true in the case of the ILO Report itself, based on the 'Discrimination (Employment and Occupation) Convention' (italics added). Cf. n.41 (the attitude of the Parliamentary Assembly of the Council of Europe). See Lustration Law, § 1 (5). See also Act No. 455/1991 Sb., § 27 (2) and its App. No. 3 (Concession‐based trade). It concerns trade in areas such as production and transport of firearms, explosives etc. Contra Memorandum, p. 341 (mistakenly assuming that the law 'apparently can include taxi drivers, antique dealers etc.'). See Act No. 422/2000 Sb., § 1. Two sections of the lustration law concern the repressive apparatus: §§ 2 and 3. The latter is only a modification of the former; it does not cover all members of the secret police but some communist officials in the National Security Corps. Here the attention is focused on the more important section 2. 'Discrimination (Employment and Occupation) Convention', ILO No. 111, 4 June 1958, 362 U.N.T.S. 31. It provides: 'Art. 1. For the purpose of this Convention the term "discrimination" includes: (a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; … (b) Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination. Art. 4. Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the state shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice'. For the ILO definition of 'political opinions' see ILO Report, para. 57, 'The Convention implies protection in respect of activities expressing or demonstrating opposition to the established political principles … even if certain doctrines are aimed at fundamental changes in the institutions of the state … in the absence of the use or advocacy of violent methods to bring about that result. … The protection of freedom of expression … extend to their collective advocacy …'. ILO Report, para. 79, italics added. Ibid. 'Convention for the Protection of Human Rights and Fundamental Freedoms', 4 November 1950, 213 U.N.T.S. 221 (hereinafter European Convention), Art. 10 provides: 1. Everyone has the right to freedom of expression … 2. The exercise of these freedoms … may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others …'. See for example Boed, 'An Evaluation of the Legality and Efficacy of Lustration'. See generally Los & Zybertowicz, Privatizing the Police‐State; David, 'Lustration Laws in Action'; Tucker, 'Paranoids may be Prosecuted'. See Szczerbiak, 'Dealing with the Communist Past or the Politics of the Present?', p. 562, arguing that sponsors of lustration were not motivated by securing historical justice but by 'a desire for openness in public life together with the need to protect national security and prevent so‐called "wild lustration" '. For a comparative overview of legislative intention see David, 'Lustration Laws in Action', pp. 392–394. President Havel initially did not seem to understand the intention of the legislator. He found the law too wide but when looking from the perspective of political opinions he criticised it for being too narrow: 'The law generally spares persons who in their writings and publications have supported lawlessness, have glorified political trials and systematically created a climate of fear in society', quoted in ILO Report, para. 39. The minimal measures of discontinuity with its predecessor and the lack of repentance are probably the main reason why the Czech Communist Party had long been politically isolated. Until 2002 none of its members had ever been elected to any leading post in the parliament. President Havel never invited the CP to political consultations. Even its ideologically closest potential ally, the Czech Social Democratic Party, approved a statement of non‐cooperation with the Communist Party at the party congress held in March 1997. However, the isolation of the CP has changed with the 2003 presidential election; in exchange for the votes of the CP deputies, President Klaus is attempting to 'rehabilitate' the CP. See ⟨http://ksc‐cssp.webpark.cz/⟩. The party adopted the name of the totalitarian Communist Party, which had changed its name to 'the Communist Party of Bohemia and Moravia'. The principle of a militant democracy, a 'democracy capable of defending itself' (wehrhafte Demokratie), is embodied in the German Constitution. See Grundgesetz, art. 9 (2), 18, 20 (4), 21 (2), 79 (3). It is recognised by the German Constitutional Court as well as by the European Court of Human Rights. See 39 BVerfGE 334, 1975 (hereinafter Civil Servant Loyalty Case), translated in D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 222 (1989); Vogt v. Germany, App. No. 17851/91, 21 Eur. H.R. Rep. 205 (1995) (Eur. Ct. H.R.), para 51. For characterisation and application of the concept see for example Kommers, The Constitutional Jurisprudence … See for example Ústava ČR (Constitution of the Czech Rep.), art. 5, 9 (2), and 87 (1) j. See Letki, 'Lustration and Democratisation in East‐Central Europe', pp. 546–548. Memorandum, p. 339, n.5. In order to legitimise the system the Communist Party nominally tolerated the Czechoslovak Socialist Party and the Czechoslovak People's Party; see 'Auxiliary Parties, Mass Organizations, and Mass Media', in I. Gawdiak (ed.), Czechoslovakia: A Country Study (1987), ⟨http://1cweb2.loc.gov/frd/cs/cstoc.html⟩. The committees were established soon after the communist takeover in 1948 and after the Soviet invasion in 1968. Their tasks were to cleanse all segments of society from 'reactionaries' or those who disapproved of the Soviet occupation. Consequently, hundreds of thousands of people were dismissed from their jobs. The operation of the committees was entirely illegal, although they received their legal status retroactively. The procedures of the Action Committees of the National Front in 1948 were legalised ex post as measures taken 'in accordance with law, even in cases which would not have otherwise been in conformity with the appropriate enactments'. See Act No. 213/1948 Sb., quoted in Decision of the Constitutional Court of CSFR, Pl. ÚS 1/92. The post‐1968 Screening and Normalisation Commissions applied similar draconian methods. They were 'regulated' by the measure issued by the Presidium of the Federal Assembly one year after the Soviet invasion, which, among other things, suspended relevant provisions of the labour code (Presidium of the Federal Assembly Measure No. 99, 22 August 1968, signed by A. Dubcek). The European Court of Human Rights explicitly recognises the omission of the right of access to public service. See Glasenapp v. Germany, App. No. 9228/80, 9 Eur. H.R. Rep. 25 (1986) (Eur. Ct. H.R.), para. 48, 'Neither the European Convention nor any of its Protocols sets forth any such right. Moreover, … the signatory States deliberately did not include such a right'. The inconsistency between the organisations of the Council of Europe — the Court and the Parliamentary Assembly (Resolution 1096) — reveals political rather than human rights concern about the lustration law. Cf. n. 22 (the attitude of the ILO). For example, if an employee at a security department with a salary of CZK10,000 was dismissed after 20 years of service, he/she was entitled to compensation of CZK80,000 plus a CZK3,800 monthly income paid until his/her retirement; see Act No. 100/1970 Sb., in the version of 169/1990 Sb., on service in the Corps of National Security; J. Spurný, 'Odškodné pro estébáky', Respekt, 8 June 1992, p. 4; R. Křižanová & M. Bartůněk, 'Dobře zaplacený civil', Respekt, 23 November 1992, p. 5. For comparison, political prisoners were compensated by CZK2,500 for each month spent in prison; see Rehabilitation Act, No. 119/1990 Sb. Perry v. Sindermann, 408 U.S. 593, 597 (1972), 'This Court has made clear that even though a person has no "right" to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech'. See also Cole v. Richardson, 405 U.S. 676, 680 (1972), 'Employment may not be conditioned on an oath denying past, or abjuring future, associational activities within constitutional protection'. For the specification of the limits of the First Amendment rights see Elrod v. Burns, 427 U.S. 347 (1976); for the Fifth Amendment rights see Aptheker v. Secretary of State, 378 U.S. 500 (1964). Although, for example, in the case of Buckley v. Valeo, 424 U.S. 1 (1976), the US Supreme Court failed to recognise a vital government interest in preserving the integrity of the electoral process, it seems that the case could soon be re‐examined as unlimited contributions to electoral candidates may threaten the reproduction of the democratic process; see 120 S.Ct. 897, 913–14 (Justice Breyer, concurring); 'Time to Rethink Buckley v. Valeo', New York Times, 12 November 1998. Garner v. Los Angeles Board, 341 U.S. 716, 721 (1951); Adler v. Board of Education, 342 U.S. 485, 493 (1952); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 565 (1973). Ibid., italics added. See, for example Adler v. Board of Education, 342 U.S. at 493, italics added. (The Court also stated that 'the right and the duty of the school authorities to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools … cannot be doubted'.) See also German Civil Servant Loyalty Case, p. 234, where the Constitutional Court confirmed that 'the free democratic constitutional state cannot and must not hand itself over to its destroyers'. After Garner and Adler the US Supreme Court ceased to consider public work as a privilege; see W. W. Alstyne, 'The Demise of the Right‐Privilege Distinction in Constitutional Law', Harvard Law Review, 81, 1439, 1968. Obviously, labelling something as a privilege cannot justify an arbitrary action, or cannot deny other constitutional protections. Yet the abandonment of the misused term of, or wrongly assigned label to, an object may not mean that that object changed its substance. Cf. G.S. Morris, 'Employment in Public Services: The Case for Special Treatment', Oxford Journal of Legal Studies, 20, 167, 2000, arguing that although status‐based restrictions were modified or abandoned during the 1960s and 1970s function‐based requirements of public employment can justify additional measures to these of the private sector. Civil Servant Loyalty Case, p. 234. Vogt v. Germany, para 51. See notes 35 and 36. See Tucker, 'Paranoids may be Prosecuted', p. 75. See Decision of the Const. Ct. of the Czech Rep. of 21 December 1993, Pl. ÚS 19/93, available at ⟨http://www.concourt.cz/angl_verze/doc/p‐19–93.html⟩. The Communist system was 'a regime, in which hardly anybody was unaware of the fact that the elections were not elections, that the parties were not parties, that democracy was not democracy, and that the law was not law (at least not in the sense of a law‐based state, since the application of the law was politically schizophrenic and everywhere discarded when the interests of those who governed entered into the picture)'. The Constitution effectively impaired human rights. See Ústava ČSSR, 1960, art. 34, 'Citizens are in all their actions to pay heed to the interests of the socialist state and the society of the working people'. See Ústava ČSSR, art. 4, 'The leading force in society and in the state was the vanguard of the working class, the Communist Party of Czechoslovakia, a voluntary combat union of the most active and conscious citizens among workers, peasants, and intelligentsia'. For the distinction between real, nominal and semantic constitutions see Karl Loewenstein, Verfassungslehre (Tübingen, Mohr, 1969), pp. 151–157. The inverse character of the legal system meant it did not serve the protection of human rights but the protection of the monopoly power of the ruling party. Laws violated not only political rights but perhaps all human rights in the abstract sense, which means they would have been nullified if they had been reviewed by a democratically established constitutional court. For example, the freedom of religion was apparently violated by the Penal Code (Act No. 140/1961 Sb.), which included offences such as 'abuse of a religious position' and 'impairment of supervision over churches and religious communities'. See for example the Manifesto of Charter 77, 1 January 1977, ⟨http://www.cnn.com/SPECIAL/cold.war/episodes/19/documents/charter.77/⟩, 'One instrument for the curtailment or … complete elimination of many civic rights is the system by which all national institutions and organisations are in effect subject to political directives from the machinery of the ruling party and to decisions made by powerful individuals. The constitution of the republic, its laws and legal norms do not regulate the form or content, the issuing or application of such decisions; they are often only given out verbally, unknown to the public at large and beyond its powers to check …'. See Ústavní listina Československé republiky (Constitution of Czechoslovakia), 1920, English translation available at ⟨http://www2.tltc.ttu.edu/kelly/Archive/czslconst1920.html⟩. See Constitutional Act No. 496/1990 Sb. See Act No. 491/1991 Sb. See Act No. 198/1993 Sb. See Pl. ÚS 19/93. The People's Militias were dissolved on 21 December 1989; see Jiri Bílek & Vladimir Pilát, 'Zavodni, Delnicke a Lidove Milice v Ceskoslovensku', Historie a vojenství, 1995, 3, p. 79. The Communist Party of Czechoslovakia tried to break its continuity with its totalitarian predecessor. It changed its name to the Communist Party of Bohemia and Moravia and expelled a few of its leading members; see ČSTK, 'Vyloučení M. Jakeše a M. Štěpána z KSČ', 7 December 1989. The party remains unrepentant to date. 'Organizační řád Lidových milicí', VHA‐MNO, čj. 8271 SM 1952, quoted in Bílek & Pilát, 'Zavodni, Delnicke a Lidove Milice', p. 86. See ibid., pp. 91 and 95; for example, 73,606 members of the People's Militias in Czechoslovakia (92%) participated in the manoeuvres on 30 June 1989 (p. 100). See ibid., pp. 83, 87, 94–95 and 100. For example, it helped to suppress the opposition demonstrations in 1989; see for example ČSTK, 15 January 1989, 'Several groups of subversive elements attempted carefully prepared provocations organised by diverse Western centres … Members of the Public Security resolutely intervened against these provocateurs … At the request of Prague workers, members of the People's Militias from Prague enterprises participated in the intervention'. Decision of the Constitutional Court of CSFR, Pl. ÚS 1/92. Here, 'membership cases' are distinguished from the 'loyalty oath' and 'self‐incrimination' cases unless they mutually overlap. The subject of the former is 'a membership', while the subject of the latter is an 'inquiry into a membership'. The former deals with consequences of a membership, while the latter deals with the consequences of the refusal to answer the questions on 'a membership'; see Slochover v. Board of Higher Education, 350 U.S. 551 (1956) (Harlan, J., dissenting); Lerner v. Casey, 357 U.S. 468 (1958). In the case of American Communications Association v. Douds, 339 U.S. 382, 393 (1950), the court recognised that 'Congress might reasonably find that Communists, unlike members of other political parties, … represent a continuing danger of disruptive political strikes when they hold positions of union leadership'. In Garner v. Los Angeles Board, 341 U.S. 716, 719 (1951), the court ruled that 'the Federal Constitution does not forbid a municipality to require its employees to execute affidavits disclosing whether or not they are, or ever have been, members of the Communist Party …'. Adler v. Board of Education, 342 U.S. 485, 492 (1952). The court also affirmed the legislative finding concerning 'membership in a listed organisation found to be within the statute and known by the member to be within the statute …', ibid., 494; see also Gerende v. Election Board, 341 U.S. 56 (1951). Wieman v. Updegraf, 344 U.S. 183, 191 (1952). Scales v. the United States, 367 U.S. 203, 229 (1961), 'The petitioner's actions on behalf of the Communist Party most certainly amounted to active membership by whatever standards one could reasonably anticipate, and he can therefore hardly be considered to have acted unadvisedly on this score' (223); see also Noto v. United States, 367 U.S. 290 (1961). Aptheker v. Secretary of State, 378 U.S. 500, 510. Elfbrant v. Russel, 384 U.S. 11, 17 (1966). Keyshian v. Board of Regents, 385 U.S. 589, 608. United States v. Robel, 389 U.S. 258, 266 (1967). (The court also found that the government aims were disproportionally unbalanced in comparison to the First Amendments' rights.) Cole v. Richardson, 405 U.S. 676, 680 (1972). The most obvious contradiction includes 'the Feinberg Law cases' of Adler v. Board of Education and Keyshian v. Board of Regents, 385 U.S. 589 (1967). In the dissenting opinion to Keyshian the minority found it 'strange' that, after 15 years of following Adler, 'the Court now finds that the constitutional doctrine which has emerged since … has rejected [Adler's] major premise' (Clark, J., joined with other three justices, dissenting) (625). Similarly contradictory are the bar cases of Baird v. State Bar of Arizona, 401 U.S. 1 (1971) and Stolar v. Ohio, 401 U.S. 23 (1971) on one hand and Law Student Research Council v. Wadmond, 401 U.S. 154 (1971) on the other. Wieman, 344 U.S. 190. Scales, 367 U.S. 230, 'A person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal'. See Gibson v. Florida Legislative Comm., 372 U.S. 539, 562–565 (1963) (Douglas, J., concurring). See United States v. Robel, 389 U.S. 258, 267. See Cole v. Richardson, 405 U.S. 676, 686. See Keyshian, 385 U.S. at 628 (Clark, J., joined with three other justices, dissenting). Nevertheless, even the majority stated that 'there can be no doubt of the legitimacy of New York's interest in protecting its education system from subversion' (602). The notions of probability and likelihood were often applied in the 'clear and present danger' test of criminal conduct; see Dennis v. United States, 341 U.S. 494, 509, 'The words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited'; see also Brandenburg v. Ohio, 395 U.S. 444, 447. In the non‐criminal area see for example United States v. Brown, 381 U.S. 437, 465–475 (White, J., joined with three other justices, dissenting); Law Students Research Council v. Wadmond, 401 U.S. 154, 197 (Marshall, J., joined with another justice, dissenting). See 'The Communist Party of Czechoslovakia, Membership and Training', in Czechoslovakia: A Country Study. During the period of communist rule more than 6,000 people died under unclear circumstances, e.g. shot at the state borders (interview with O. Stehlík, Head of the Archive of the Confederation of Political Prisoners, 18 January 2000). The Czechoslovak judiciary condemned at least 257,000 people; see F. Gebauer et al., Soudní perzekuce politické povahy v Československu 1948–1989: Statistický přehled (1993), pp. 57–68 In addition to this they had to undergo intensive political training; see 'The Communist Party of Czechoslovakia, Membership and Training'. Initially, a few members of People's Militias were also non‐members of the CP. However, they were expelled from the organisation shortly after the communist take‐over (Bílek & Pilát, 'Zavodni, Delnicke a Lidove Milice', p. 86). See James, Young, Webster v. The United Kingdom, App. No. 7601/76; 7806/77, 4 Eur. H.R. Rep. 38 (1982), para. 55, 'Assuming that Article 11 does not guarantee the negative aspect of [freedom of association] on the same footing as the positive aspect, compulsion to join a particular trade union may not always be contrary to the Convention. However, a threat of dismissal involving loss of livelihood is a most serious form of compulsion … [which] strikes at the very substance of the freedom guaranteed by Article 11'. See ILO Report, para. 39, 'The President … is not sure … as regards the People's Militias, whether the law should not deal only with those having exercised command functions for more than one year …'. See Michnik & Havel, 'Confronting the Past', p. 23; Havel states the Lustration law 'also includes [People's] Militiamen who in 1968 defended the extraordinary Party Congress at Vysočany against the Soviet occupation army'. The vast majority of Militiamen were, however, hard‐liners who resisted the reform attempts of 1968 and welcomed the Soviet invasion; see Bílek & Pilát, 'Factory, Workers' and People's Militias', p. 94. See for example Vogt v. Germany; cf. Glasenapp v. Germany. Kosiek v Germany; for changes in Germany see Donald Kommers. The Constitutional Jurisprudence of the Federal Republic of Germany 2nd edition (Duke University Press, 1997). See Gillis. 'Lustration and Decommunisation'; United States v. Robel; and note 19. A. James McAdams, Judging the Past in Unified Germany (Cambridge, Cambridge University Press, 2001), pp. 55–87. The category of academic officials also fails the test against lustration goals; see David, 'Lustration Law in Action'. Additional informationNotes on contributorsRoman David Footnote I am grateful to Susanne Y. P. Choi, Andrew Rens and Christopher Roederer for their valuable comments, to the University of the Witwatersrand and the South African National Research Foundation for their support and to the RSS, Prague, for financing my fieldwork in the Czech Republic, Poland, Slovakia and Slovenia, which was part of grant No: 1636/245/1998.