After the dictatorship

Lustrations and commission on the usurpation of power: how can “transitional justice” look like in the post -Soviet space

In post -Soviet Russia, many crimes remaining unpunished were committed and committed. Under the current political regime, they cannot be investigated: representatives of the authorities purposefully cover and authorize them, and sometimes participate in them. This creates systemic impunity. The ability to restore justice will arise only after a change in the political regime. But how to investigate and judge the crimes “permitted” by the state in the previous era of its existence? What crimes should be “forgotten” and which should be punished?

Many countries have encountered these issues after the collapse of authoritarian regimes. Russia will definitely have to answer them-doing what it was not possible to do in the early 1990s when the crimes of the Soviet period remained underestimated. In November, the Institute of Law and Public Policy (IPP) published a report by lawyer Nikolai Bobrinsky and historian Stanislav Dmitrievsky “between revenge and oblivion: the concept of transition justice for Russia” .

Invitation to discussion

It is possible to accept an online study in the discussion of this report, organized by the Sakharov Center and STPP, on December 1, on Tuesday, from 19:00 to 21:00.

Each time in a particular country there is a dismantling of an authoritarian regime, which systematically applied illegal violence for its fellow citizens and committed (or covering) other impunity crimes, the task of overcoming the heritage of the past inevitably faces the new government. The solution to this problem may include:

• establishment of truth;

• restoration of the rights of victims;

• judicial persecution of persons responsible for violations of the fundamental human rights;

• restrictions for representatives of the former government to occupy certain positions (lustration);

• Wide institutional and legal reform, aimed at building democracy and establishing the rule of law.

This complex of measures is needed by a rapidly changing society in order to go between Scylla revenge for crimes of the previous regime and the Haribda of oblivion. In legal science, he was called “justice of the transition period”, or “transitional justice” ( Transitional Justice , TJ).

“Various methods that make up transitional justice are usually combined with“ healing ”measures of restoration justice (commission to establish truth and reconciliation) and a parallel system of punitive justice (mainly in relation to persons who bear the main responsibility for the most serious crimes and their direct executors),” the secretary secretary of the Eric Sottas noted in the article “Obligion transition period and sanctions. "

Effective introduction of transitional justice measures is necessary in order to prevent the possibility of repeating the tragedies of the past. Successful denazification of Germany (it can be considered as a forerunner TJ) turned the apocalyptic monster of the Third Reich into a developed democratic state in which

Nazism is not just convicted by law, but deeply survived by society as the greatest national tragedy.

The experience of Eastern Europe and the Baltic countries, which managed to say goodbye to the communist inheritance, turned out to be successful. Following the stage of establishing the rule of law, many countries of Latin America are experiencing. Until recently, the climate of impunity dominated in them seemed an insurmountable part of the “national mentality”, but now we see on the bench of the defendants of yesterday’s dictators, high -ranking military and police officers, whose hands are stained with the blood of many innocent victims.

Russia, saying goodbye to communism, went, alas, in the other way. The reformers of the early 1990s, in the vast majority of the party-Soviet nomenclature, who came out of the bowels, were unable to cleanse the legislation, state apparatus and historical memory of the heritage of communist tyranny. Our “builders of capitalism” turned out to be paradoxical anti -communists impregnated with school Marxist ideas: they believed that the main thing is to create a “basis” (private property and market), and the legal “superstructure” would grow itself. The timid sprouts of justice that began to curse in the era of perestroika quietly gyresheli or directly trampled in the interests of “political expediency”.

We saw the result of the “half -hearted” approach in the following years. The victims of Soviet totalitarianism remained in the minds of most Russians who were prodigy and forgotten. The executioners quietly died on honorary state pensions, and the example of their life was very contagious for the new generation of the Russian power "elite".

We saw the predictable revenge of anti -democratic forces: the authorities again became irremovable, and the court - inquisitional.

The flywheel of political repressions, propaganda of national pride, glorification of yesterday and today's tyrants and killers spun again. The rights and freedoms of citizens are trampled, and the very idea of ​​democracy is deeply discredited in the eyes of the population.

Almost three decades later, life again turns to us to learn the missed historical lesson, to solve the problem that was then discarded.

The current repressive regime is not eternal, although I would very much like to seem like that. But what will happen then? Will democratically oriented politicians be able, if they were in power, to guarantee non -repetition of the past or a demonstration of a repetition of Russian history, about which the philosopher Merrab Mamardashvili spoke about, will again direct our country to a new round of lawlessness? The answer to this question largely depends on the efforts that we are doing now.

The practice of many countries (including the latter of instructive examples - Ukraine) shows that during the rapid destruction of authoritarian institutions and subsequent political instability, it is extremely difficult to prepare a meaningful plan for reforms “on the knee”. Civil society should have it developed “on the shore”, ahead of time, at least in general terms. Of course, the logic of the political struggle will make inevitable adjustments to any schemes. But, without having before the eyes of the “road map” before the main healthy forces of the company,

Today's opposition risks to be outrageous to the challenges of the power that had suddenly fallen on it, as it was already in the early 1990s.

Our report is the first step in this direction. Having studied and summarize international experience, we tried to develop a set of legal response measures necessary for the painless, confident and irreversible transition of Russia from authoritarianism to democracy, from legal nihilism to the rule of law. The report contains our position on a number of key questions:

1. What events (violations of human rights, abuse of power, crimes in domestic and international law) should become objects of transitional justice in Russia;

2. What forms of legal response to each of them should be elected;

3. What judicial and administrative mechanisms should be created for this;

4. What state institutions should be established or reformed;

5. How to restore the rights of victims.

Abstracts

Accelerated procedure for the rehabilitation of victims from anti -constitutional criminal and administrative repressions

First of all, we propose to introduce an accelerated procedure for the rehabilitation of victims from anti -constitutional criminal and administrative repressions . This involves the abolition of politically motivated sentences and administrative decisions: rehabilitation and appointment of compensation will take place in a single trial. Punished under those articles that can be considered initially unconstitutional (for example, “repeated violation of the established procedure” of public actions and “disrespect for power”),

It is necessary to rehabilitate automatically, without checking the actual circumstances.

Entertaining mechanism for recognition by victims and purpose of compensation

For the victims of torture and relatives of the missing during counter-terrorist operations in the North Caucasus, an extrajudicial mechanism for recognizing the victims and the appointment of compensation is proposed-social-state commissions will be able to do this. This commission also has the search and identification of the remains of the missing.

Uzurpation Commission of the authorities

A separate commission - on the usurpation of the authorities - must conduct, according to our project, an investigation of unlawful assignment and withholding of power.

Information for the investigation is supposed to be obtained, including ordinary participants in usurpation, including members of election commissions. In exchange for testimony, they will be given an amnesty.

Extension and restoration of the expired statute of limitations, exclusion from amnesty for untouchable

One of the main components of the concept of transitional justice is the extension and restoration of the expiration of the statute of limitations for criminal prosecution of people who are now actually fenced from criminal prosecution by a policy of impunity. For such cases, it is proposed to make an exception from amnesty decisions. We also recommend allowing the restoration of the limitation dates and the terms of appeal of judicial acts missed under the influence of violence or threat, and appealing the results of the election after a three -month period for filing a claim.

Lustration

We propose to introduce lustration only limitedly, as an addition to criminal justice and exclusively as a tool for protecting state institutions from people who stained themselves with the participation in anti -constitutional repressions and the policy of the usurpation of the authorities. In relation to judges who have issued sentences and other decisions on “political matters”, we can limit ourselves to the suspension of powers for the time necessary to decide on their bring to disciplinary or criminal liability.

Transition justice is a comprehensive mechanism. Its various measures are not effective in isolated implementation, but when they complement each other inside the general framework of democratic transit. Therefore, preparing a program of actions for the future, at least in general terms, show how the proposed steps will be combined with the general context of legal and judicial reform, with the ideas about what the investigation, the police and the prosecutor’s office should become, how to introduce the activities of the special services into the legal framework, how to ensure the declaration of archives. This area requires further development.

The expert community has an ambitious task - to develop a general concept of transitional justice, where each of the proposed measures will take its structural and chronological place in the general picture of democratic reforms. If the approaches and the concept scheme proposed in our report allow at least one step closer to its decision, the authors will consider their work successful.

Nikolai Bobrinsky, Stanislav Dmitrievsky

About the authors:
- lawyer, co -author of the book “The legal status of persons looking for asylum, in modern international law” and articles on the justice of the transition period;
- Human rights activist, historian, head of Russian projects of the Center for Documentation named after Natalia Estemirova, co -author and editor of the books “International Tribunal for Chechnya”, “Public Investigation of torture and other fundamental violations in the field of human rights”.