Decommunization in Romania

A Case Study of the State Security Files Access Law

By Ioana Borza

The present paper explores the process of decommunization in Romania, with special emphasis on the State Security Files Access Law. The analysis is built upon a more theoretical basis concerning the definition of transitional justice, the paths to achieve it and the understandings given in the literature to the term decommunization itself. The argument proceeds by making some general comments on the Romanian transition, in connection with the nature of the former regime and the way it was replaced. Further on, the paper takes a closer look at the State Security Files Access Law in terms of content, context of initiation and of adoption and more importantly, in terms of impact upon the Romanian society. While the answer to the question why after ten years is still unclear, the interpretation of political discourse reveals a certain sense of duty in order for Romania to be (considered) democratic, seen as a step forward in the European integration process. In the same time, the analysis also points out the clear reluctance of all parties in making a very powerful, i.e. effective, lustration law.

Introduction.

The process of transition from a totalitarian regime, the type that Romania was, to a democratic one implies a series of choices regarding the new institutions, the economic reforms, adopting a new constitution, reframing the foreign policy, freedom for mass-media, judiciary reform, and dealing with the past. It is particularly important if the nascent democracies in Central and Eastern Europe should or should not punish their predecessor communist regimes for the crimes and actions committed against human rights. The discussions around whether to deal with the past and how to do it were major issues in the next years of the regime changes in almost all Central and Eastern European countries, but the policy outputs were different depending on a variety of factors like: the mode of transition, the impact it has, the legacies of the past regime - the type of the communist regime, the extent of political repression and penetration of society by the state security forces -, the new political context, the time when assuming the past became a political issue. There are differences in the way, for example, Romania and ex-East Germany dealt with the problem: the greatest efforts have been made in ex-East Germany by creating a lustration law, by giving access to STASI files, creating the Gauck Commission, by bringing in front of the Judicial Court persons accused of crimes, while in Romania decommunization was hardly talked about, and nothing was done until recently.

All these differences challenged scholars to study if it is worth doing justice in transition societies, what are the implications on the new democratic regimes, what is the relation between decommunization and democratization/consolidation of a democratic regime, and what are the modes of achieving justice.

Transitional justice

"Transitional justice characterizes the choices made and the quality of justice rendered when new leaders replace authoritarian/totalitarian predecessors presumed responsible for criminal acts in the wake of the "third wave of democratization""( R. Lewis Siegel). There are different procedural modes of transitional justice:

• Screening laws or lustration: provide non-criminal sanctions against those involved in police surveillance and other detested activities of the former regimes.
• Truth commissions: have the role of disseminating the names of alleged perpetrators and reveal the implications of the findings for criminal prosecutions; give a sense of reconciliation to a very polarized society.

Amnesty: ignores past crimes and violations of human rights, and some say it is like starting anew because there is no judicial procedure, and no public discussion about what happened

• Trials of the leaders who gave orders to commit crimes, of those who carried them out, in a more brutal way, of those who perpetrated abuses, of those who tortured and prevented from liberty.
• Prosecutions carried out either by the state, in a broader way, or by individuals, when it is narrow and unfair, and can be transformed in a private way of revenge.

The literature presents several arguments for and against various modes of transitional justice, and I will shortly present them as it follows:

A. One of the purposes of prosecuting human rights abuses from a previous regime is to prevent similar horrors from being committed in the future. The judiciary, then, is being asked to play three vital roles:

• To achieve some measure of justice for past deeds, notwithstanding the political, social and economic maelstrom that quite often is affecting societies attempting to transform themselves into healthy democracies.
• To protect these societies from even having to go through this suffering once again.
• To hold the national government to their obligations under international human rights law.

A. The arguments against any form of transitional justice are:

a.Prosecutions should be blocked entirely or in part because in periods of transition, a state’s criminal and civic justice are weak and incapable of performing such a highly moral duty

b.Prosecution tend to target the current political opponents

c.Lack of clarity about whether a given seemingly criminal act is subject to current or past criminal law

d.Arguments for defending information crucial to national defense or force major

e.Widely shared guilt and responsibility for the evils and crimes of the previous regime

In terms of institutions, decommunization represents "a transformational process pertaining more to institutions and social structures than to people. Resolving the conflicts included under this rubric was a necessary first step in removing initial impediments to transition. To ensure the smooth transition to democracy and the successful transformation of the parties themselves into post-communist democratic actors, this project needed to commence immediately." (Bertschi, 1995) In terms of personnel, it refers to defining and identifying victims of the old regime, the abusers/criminals/torturers of the old regime. It is a controversial matter because it deals with people, their beliefs and values, which are judged publicly. The personnel of each new democratic institution is supposed to be checked if he/she was part of the state security institution - a lustration law - and in this way, the new regime secures the circulation of the elites. Each mode of transitional justice can be applied to the process of decommunization.

Does this process represent something for the new democratic regime? How much information about the old regime should the new regime disclose? The answers to these question are diverse, and largely dependent on the respondents’ experiences during the communist period and their political status at the time of the regime change. Usually, in these new regimes, the group/groups formed from the ex-communist elites have presented this process of decommunization as an unfair "witch hunt," claiming that everybody was in a way or another " contaminated" by communism, so everybody should be punished. In many cases, ex-prisoners and ex-dissidents present the process of decommunization as a desire for justice - or even revenge - with punishment and compensation for the wrongs committed under 40 years of communist rule. But as time passed, these points of view have tended to soften. The process of decommunization generally is no longer seen as a fight for life or death, but more of a moral duty not to forget what happened so that it would never happen again.

Decommunization in Romania

Taking into consideration this general overview, a closer look at the decommunization process in Romania and a map of the motives and goals of several actors –political parties and specific associations in this process seems necessary.

Romania was one of the last Eastern Europeans countries that began the transition to democracy in 1989, not through negotiation of the " old guard" and the "new comers", but in a bloody way The way the transition was accomplished and the legacies of the Romanian communist regime conditioned the course of future decommunization attempts.

Romania was a "sultanistc" regime during Ceausescu period with a highly personalistic and arbitrary leadership, with strong dynastic tendency—important figures of the political life were members of the family, extreme glorification of the ruler, which was a despotic personality, guided by pseudo-ideology with little power of mobilization, the most important aspect is that his power survived because of the Securitate. Securitatea, the Romanian state security institution formed of different departments, one of which was the political police, succeeded in installing the belief that the visible presence of so many engaged in collaboration with the secret police represented but a drop in the ocean of ubiquitous network of officers and informers. The Securitate were as much a state of mind as the instrument of state terror. Figures ranging from one in ten to one in three of the population (2.3 to 8 million) have been frequently picked from the air as an estimate of the Securitate’s strength, but none of these figures has any solid basis of evidence to support them and such numbers would have to include all the causal informants and busybodies which all totalitarian systems produce in parasitic abundance.

Following the sultanistic regime type, the transition was characterized by the old elite largely remaining in power; decommunization in Romania began with the summary trial and execution of Nicolae Ceausescu, and then subsequent circus proceedings against members of Ceausescu’s family. Some measures of justice were achieved in 1990 with the convictions of a number of former Politburo members who ruthlessly suppressed the anti-Ceausescu revolt that took place in 1989, during which about 1,000 people were killed. However, despite the fact that several of the defendants received life sentences, all were pardoned in 1994 by then president Ion Iliescu, re-elected in 2000. During 1990, much of the oppressive legislation of the Ceausescu period was removed: freedom to travel abroad was initiated, the death penalty abolished and all political prisoners were given amnesty and some compensation rights for them or their widows, like a small pension, free medical assistance and free travel by train or by bus.

There has been much talk about the changes made in the personnel of the informational services, like the Romanian Intelligence Service, the Foreign Information Service, the Counter-intelligence Directorate and the Intelligence Directorate of the Army, and about their Securitate’s legacy. Their activity is under the control of the Parliament and of the Supreme Council for National Defense. All these are actions conducted by the Romanian state in the process of decommunization.

Along the state, there were some private initiatives like court trials against county chief of Securitate, or a moral court trial against communism. These actions were conducted by former-political prisoners associations or trials against tortures in the communist prisons conducted by the already dead political prisoners’ families. There are also prisons kept as museums of torture - the one at Sighet-, magazines published on the subject of communist period and suffering of the prisoners, and a collection of books called "The Trial of Communism" conducted by Humanitas publishing house.

The remaining problem is the absence of state action, which affects the process of decommunization because it gave it a twisted meaning: it leaves open the way

• for personal revenge,
• for its politization in being used as a tool for destroying political opponents’ careers,
• for revealing information which can not be proven true or false,
• for not making a distinction between victims and abusers
• there is no legal framework for dealing with the crimes and abuses of the past regime and it seams they are still perpetuated. These all represent violations of human rights norms.

The passing of Access to ex-Securitate Files Law represents the only serious attempt of the Romanian society to address the issue of facing the past. There were some other legislative projects, but none had either the juridical power, or were not even discussed in the Parliament like the law which is the subject of this study.

Access to the Personal File and Disclosure of the Securitate as a Political Police Law

In 1990, in the first Romanian Parliament, Mr. Constantin Ticu Dumitrescu, as chief of the Former Political Prisoners Association, made an amendment to the Electoral Law, the one from March 1990, in which he added, in a way similar to the Fascists Movements’ members, the restriction for Communist party members to candidate, but his amendment was not voted and hence it was removed from the law.

In 1992, after the first parliamentary elections in Romania, he was elected as senator. So, he initiated a motion, a Parliamentary legal act, which was a lustration law since it banned any person who during 1945-1989 had worked consciously as informer of the Securitate, delivering notes and information about other persons, to be elected or to maintain a state office or an administrative or teaching position. This motion was signed by 114 Senators and 200 Deputies and was discussed by the Parliament and voted by the majority. It should have functioned in a real democracy, but it was never even mention.

In 1993, Mr. Ticu Dumitrescu presented a legislative proposal with the same content. It was never discussed in the Romanian Parliament during 1993-1996. During the electoral campaign of 1996, the Romanian Democratic Convention (CDR) made a promise of revealing the past. Many voted for this promise. It was the biggest issue that separated them from the PDSR party, which was the other serious candidate.

The Law has 26 articles that can be grouped in distinct chapters. The first chapter deals with the right of any Romanian citizen to see his/her own file and to find out the identity of the Securitate agents and of the collaborators who contributed with information at the completion of that file.

The second chapter presents the offices requiring a personal file check.

The third chapter defines the political police as a structure of the Securitate, set up for the establishment and maintenance of the totalitarian communist power, as well as for the repression or restriction of the fundamental human rights and liberties; it also defines the agent of the Securitate organs as any person who had the position of operative worker of those organs during 1945-1989, undercover inclusive. The collaborator of the Securitate organs is the person who was remunerated or otherwise compensated for his/her activity in this capacity, held a conspirational house or a meeting house, was a resident of the Securitate, in the sense of the present law, any other person who gave information to the Securiate, through which were affected, directly or through other organs, the fundamental human rights and liberties, or who passed on or facilitated the passing on of information, notes, reports or other documents, by which the activity or attitudes against the totalitarian communist regime were denounced, liable to affect the fundamental human rights and liberties.

The fourth chapter presents the National Council for the Study of the Securitate Archives (CNSAS ):

its main functions—verifying the persons running for offices subject of this law, publishing the names of these persons, presenting personnel file , studying the archives and administrating them.

The fifth part establishes the right to privacy of the citizens who are not running for any office. It is specified that publishing information about a person without her/his permission, using information twisted, hiding information is forbidden. All these deeds are punished according to the penal law, the maximum punishment being increased to 2 years.

Almost all parliamentary political parties openly expressed no opposition to the law, but all of them –both the ruling coalition( PNTcd, PNL, PD) and the opposition ( PDSR, PUNR) –proved by their votes in the Senat, in June 1998, that they want access to the files to be limited. With a 109-7 vote, they changed the law so that the intelligence agencies will remain the keepers of the files, and the CNSAS would need their permission for any access. The access to a file is denied if the information contained in this file represents a "national security matter", and as the senators did not specified what a "national security matter" means, it will be up to the intelligence agencies to decide whether to reveal a file or not. In the Deputies Chamber, almost all the parties supported the law without or with amendements—like PNTcd, PNL, UDMR, PD, all these parties presenting the law as a necessity for cleansing the Romanian political life; they emphasized that the process of voting should be quicker because it was already too late. PDSR supported the law under the condition of a number of amendments to be accepted. Its amendments were against the long list of offices that should be checked, against the definition of the collaborator by trying to restrict it to the definition of informer of Securitate, and against placing the Archives with the CNSAS. PRM was totally against this law; the reason was that it would bring great harm to the national consent and to the Romanian intelligence services.

The law has some important restrictions which determined some, including its initiator, to say it will not have great impact on the cleansing of the political life. The goal of the law was to permit access to one’s own file, but CNSAS ccoul not answer these requests until after the November 2000 elections. It did not have a great impact on the local June elections because of the great number of persons who ran for office and because of the CNSAS’s problems: it still did not have a proper hedquarter and the members of the Council could not do their work properly.

The impact of the law on the political class is limited considering that there is too much material to be studied for determining for certain that somebody was a collaborator/agent/informer of the Securitate, and the CNSAS will not reveal any information if it is not certain. The law is limited by the third party restriction in that one can not reveal/publish/use any information gathered from her/his own file. The only positive effect that I see is that when one is able to see her/his file it will offer a moral base for judging the others, it is up to her/him if he/she decides to take any punitive measure against the abusers/criminals. But to do this, the Romanian legislative has to be completed with a judiciary system reform.

Why has the law been passed after all? At the moment, I can make only suppositions because I heard only politicized answers. One of the reasons might be that the Romanian Democratic Convention, especially PNTcd, wanted to regain its specific electorate by passing this law, but with specific amendments that protect some of its members. For the other parties, it represents an electoral tool too and also a mission accomplished in order for Romania to become a democratic country. The weaknesses of the law are not presented, the only exception being its initiator, and the general opinion is that better to have something than nothing. What is not seen is that a wrong law can be used by abusers and can become a political tool, which was not the initial intention. This law has offered a sense of justice for the victims, protect them from being accused of revenge and clean the political life of suspicions, blackmails and threats. A general opinion can be sensed among the Romanian parliamentary political parties: the problem of disclosing the Securitate was so much talked about and Mr. Dumitrescu pushed very hard for it, that now it is a relief it was passed with the needed limitations. This is a law on decommunization, but how well it can function is another matter. They did their job of discussing it, passing it, now it is up to another branch of the power -the judiciary- to make it work. However, the law has very weak judicial implications.

Conclusions

This paper has tried to give an overview of the state of decommunization in Romania. The process of decommunization in Romania has become a political issue since the State Security Files Access Law was passed by the Romanian Parliament and signed by the Romanian President, Mr. Emil Constantinescu, in December 1999, ten years after the 1989 Romanian revolution. In all these years, there were attempts to come to terms with the past, attempts coming from the ex-prisoners of the communist prisons, from students and from intellectuals, mostly ex-dissidents in the communist period, but they did not become laws to govern the post-communist Romanian society. All analyses done during these years attested that Romanian political parties almost unanimously remained reluctant to deal with the problem of decommunization. This is the reason for trying to find out the rationale of adressing the issue after ten years of almost complete silence.

The problem of decommunization was analyzed in the broader context of the theoretical discussion on transitional justice and its judicial mechanisms. The general theoretical pros and cons for doing justice can be identified in the Romanian political parties’ discourses. I could thus make a general description of the points of view using the way the parties have been motivating the amendments to the Access Law. The conclusion was that almost all of them accepted the importance of the law, but some of the parties restricted the law through their amendments and made it almost useless. The answer to the question why now, after ten years, remains unclear. The Romanian political parties use a politicized discourse when arguing the importance and usefulness of this law; a sense of duty of passing it so that Romania can become a member of the European Union can be perceived in the politial dicourse. Specific signals conveyed by the European institution concerning the need for such a law were not given, but speculations can be made.

The Access to the Personal File and the Disclosure of the Securitate as a Political Police Law can have influence on the Romanian society either as a moral measure balance for individuals, or as a hidden lustration law through elections.

This paper was first presented to the Civic Education Project, the VIII-th International Student Conference, held in Budapest, May 2000. Any suggestions on its content and subject are welcome to the following email address: ioanaborza@hotmail.com

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