Romanian Constitutional Court Explains Unconstitutionality Ruling Against Lustration Law

The court says the law's measures are excessive, compared to the goal it seeks to achieve. Also, according to the motivation, the law would violate the individual's right to being considered innocent until proven guilty and it would enforce a collective sanction, based on generic, politically motivated culpability.

On June 7, the Court ruled the country's lustration law is unconstitutional, after the normative act was challenged by several lawmakers. The provisions of the law found unconstitutional are those which prohibit former members of the state's repressive apparatus from holding various public positions. The Court found that the law breaches the citizens' right to be elected and violates the constitutional principle according to which laws can "only act for the future".

According to the law, all former members of the Romanian Communist Party (PCR) and of the communist State Council and Council of Ministers, diplomats, state secretaries, party secretaries, police inspectors, as well as people who worked for the secret Securitate police from March 6, 1945, until December 22, 1989, will not be allowed to occupy public positions for five consecutive years starting from the moment the lustration law is enforced.

The Court considers that the law was adopted very late after the fall of communism, which is why its measures are disproportionate. Lustration was a problematic issue in all former communist bloc countries but, in Romania's case, such a law would be legally inefficient and solely serve a moral purpose. The motivation cites a 2004 case tried by the European Court of Human Rights, whose ruling found that Latvia's late adoption of lustration measures rendered its restrictive measures unjust.

The Constitutional Court argues that lustration is beneficial for countries transitioning from communism to democracy, and should act as a moral landmark for commemorating the crimes of the communist regime. However, adds the Court's decision, lustration should not sanction politically-based cleansing or revenge, as it would violate the right to equal access to public service, upheld in the Universal Declaration of Human Rights.

The Court's motivation also criticizes the law's ambiguous wording, which would render the act difficult to enforce.

The Constitutional Court's decision is definitive and generally mandatory.

On May 19, Romania's Chamber of Deputies adopted with 203 to 40 votes and 12 abstentions the country's lustration bill which became law as it had already been adopted in the Senate on April 2006.

In 2006, Romanian President Traian Basescu condemned communism before Parliament, but lawmakers failed to pass the lustration law, despite favorable steps taken in this respect.

In 2009, three years after the lustration law was adopted by the Senate and was still pending debates in the Chamber, the head of state stressed the steps he had taken in recent years to condemn communism and declassify Securitate files must be carried on and sealed with the lustration law.

After the fall of communism sweeping across Europe between 1989 and 1991, lustration came to define government policies of limiting the participation of former communists, and especially informants of the communist secret police, in the successor political appointee positions or even in civil service positions. Lustration mainly aims to prevent the continuation of abuses that had occurred under a former dictatorial regime.

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