INTRODUCTION

From the very beginning in Eastern Europe, lustration was a controversial issue. Its opponents claim that in principle it contravenes the very concept of a democratic law-governed state: for instance, they argue that lustration is based on collective guilt, contrary to both the presumption of innocence and the principle of non-retroactivity of law. The supporters of lustration and decommunisation do not deny that it involves some retroactivity of law and departure from strict formalistic legalism. However, they claim that lustration is necessary for a substantive and robust rule of law, and for the legitimacy of the new legal system. In other words, the two sides perceive law and its function in very different ways. On the one hand, critics of lustration adopt a very narrow positivistic and legalistic concept of law; on the other, supporters of lustration adopt the view that in order to achieve the rule of law, it is sometimes necessary to go beyond narrow legality and that the social context in which legal institutions operate is crucial.

The transfer of power from communist regimes that started with Poland's first (semi-free) election of 4 June 1989 and ushered in Europe's first postcommunist government had a snowball effect in other countries. With the exception of Romania, the transfer of power was peaceful and based on agreements usually called ‘round table talks’. The Western liberal world praised this type of transfer of power as a model for a liberal and constitutional state. Twenty years later, the societies in question are deeply divided in opinion about the present and the future.

Why is this? A substantial number of citizens and observers of the affairs of the region claim that remnants of the past, dealing unsatisfactorily with legacies from the former regimes, are responsible for the contemporary state of affairs. It is not the aim of this chapter to confirm or falsify such claims, but in order to consider the contemporary state of affairs in the democratic law-governed states, as the post-communist regimes call themselves, it is necessary to focus on the extremely complicated problem of the relations among legality, the rule of law, institution-building and dealing with the past in the process of transition from communism over these twenty years. In this chapter I will describe legal strategies adopted in particular countries in their attempt to deal with one controversial element of dealing with the past.