A. Introduction
Three distinct rounds of extraordinary administrative/quasi-judicial “cleansing” processes have been visible throughout the 30 years of post-communist transition in Central Eastern Europe (CEE) and Southern Eastern Europe (SEE). Despite the evolution of conceptual attributes and contextual references to these processes (decommunization to anti-corruption), rule of law and sustainable institutional reform concerns persist. While these judicial cleansing mechanisms have grown more sophisticated from one round to the next, this growth has not been sufficient to justify their shortcomings. The argument around these shortcomings in this Article will be twofold: a) from a normative perspective, the frequent derogations to rule of law principles such as security of tenure for judges and legal certainty for the sake of these processes, are recurring and therefore problematic; b) from a consequentialist perspective, the frequent recurrence of these exercises has contributed to the existence of transition as a permanent condition for the affected judiciaries; a justice pendulum leaning toward either transgressions of independence or accountability, or both, without a possibility to stabilize.
Framed in the continuity/discontinuity language, the argument of this Article highlights that extraordinary judicial accountability creates discontinuities in rule of law principles while failing to discontinue persistent authoritarian practices endangering CEE and SEE judiciaries. By relying on scholarly work related to the mental transition of judges, hidden continuities, path-dependence, and informal institutions within and around the judiciary, the Article aims to highlight the inability of these extraordinary cleansing operations to contribute to judicial integrity-building, instead becoming the ever-recurring legal concepts addressing the same persisting problem.
The concepts used mostly throughout the Article are lustration, vetting, and purging. To explore them methodically, I have chosen the conceptual frame posited by Munck and others,Footnote 1 which describes concepts as a set of three related elements: a concept’s term; its sense, understood as a holder of their conceptual attributes;Footnote 2 and its reference. Grasping the sense oftentimes presents a challenge, since the conceptual attributes it comprises are sometimes interchangeable, overlapping, and nested within each other. Yet, I will choose to attach to their sense the most common conceptual traits attributed by the vast literature on the matter and their most typical characteristics.
HorneFootnote 3 has envisaged the conceptual distinction between vetting, purges, and lustration in a comprehensive theoretical and empirical analysis of transitional instruments. All three have the attributes of personnel change, but they are different in aims, breadth, and scope. Lustration, as used in the 1990s in post-communist Europe, has posed the question of the need to use not only criminal but also administrative and quasi-judicial procedures to cope with the past involvement of individuals within the repressive apparatus and to leave them outside of the public sphere.Footnote 4 Loyal to its etymology, lustration (lustratio in latin)Footnote 5 implies a purification process and bringing the truth into light, the latter being also a legal conceptual category proven difficult to establish and implement.Footnote 6 In the frame of decommunization, lustration has hosted two types of administrative/ quasi-judicial processes: a) classical vetting and b) purging. In the 1990s, classical vetting was considered “the screening of persons seeking to occupy (or actually occupying) certain public positions for evidence of involvement with the communist regime.”Footnote 7 Outside of the post-communist era, vetting is “any ban on holding office, not limited to members or collaborators of the ‘ancien régime.’”Footnote 8 Relying on operational documents such as those of the United Nations,Footnote 9 vetting, on the one hand, is to be understood as a narrow process targeting a few institutions—which is in no case the wholesale replacement of the public sector, as is the case of purges. Purging, on the other hand, is the act of collectively eliminating high officials from public life due to their position in a previous regime. It usually consists of the exclusion with immediate effect of a whole category of public officials of a certain category or rank.Footnote 10 The difference between purging and vetting has been respectively the presumption of collective responsibility.Footnote 11 Vetting has been more and more preferred to purging in international standards, as the presumption of innocence may also be violated during these procedures, especially when they take on the form of purges, that raise the chance of persons subject to such procedures being exposed to popular revenge.Footnote 12
To encompass a diverse region to track its waves of legal and political discontinuation is challenging, but it is also an enterprise that has already been periodically and systematically undertaken. The Article is structured around the constitutional debates which have evolved from decommunization as political discontinuation,Footnote 13 to rule of law reforms as judicial renewal. By using the frame used by Piana, those of several rounds of reforms in post-communist Europe,Footnote 14 the Article contributes to perpetual transition. It situates this debate within successive and analytically distinct waves of democracy —namely decommunization, Europeanization as rule of law promotion and subsequent governance reforms.Footnote 15 Along this line, the Article juxtaposes the justifications for these rounds of extraordinary judicial accountability rounds, to an ever-evolving principle of judicial independence, as seen from the lenses of individual rights for judges, nut also from the need to balance functional and contextual approach in better determining it.Footnote 16
The focus of the study remains extraordinary measures targeting sitting judges in transitional and administrative post-autocratic polities, excluding post-conflict vetting such as those in ex-Yugoslavian countries after the Yugoslav Wars in the 90s. The selection of the jurisdictions has been based on the systemic criterion, namely an systemic cleansing of the judiciary (Czech Republic, present Poland - potentially) or the repeated and transformed attempt at judicial cleansing from a decommunization to an anti-corruption frame without major results (Romania, Bulgaria), or both (Albania, Ukraine). Furthermore, it avoids the analysis of ordinary accountability measures within judiciaries such as ordinary periodic vetting or pre-vetting, such as the security vetting in CroatiaFootnote 17 or the filtering law applied in Moldova,Footnote 18 precisely to illustrate the underpinnings of extraordinary accountability measures. The rule of law disruption element in extraordinary accountability rounds is illustrated through the impact of cleansing at a systemic scale and its destabilizing effect, caused by the removal of judges that the system cannot replace (such as the roughly 400 judges in Albania or the potential removal of the 3000 neo-judges in Poland). The judicial purging model of Eastern Germany after the 90s is also excluded from the study despite its high dismissal scale due to the very specific nature of the reunification that mitigated its effects in the system—precisely because the vacancies created from the removal of ex-communist judges were covered “in-house” by judges from the West German StatesFootnote 19 , with the “right” training and mindset for the state of the rule of law to which the GDR was adhering.
To substantiate the transitional and institutional perspective within judiciaries I have relied on the understanding of Kosar, Sipulova, and Urbanikova on relational perspectives in judicial informal settings where they argue that the “relational dynamics between judges and other judges, politicians, political groups, legal actors, and other individuals and collective entities matter.”Footnote 20 This is especially true in critical junctures such as EU pre-accession reformsFootnote 21 which create opportunities for partisan empowerment of certain actors related to the judiciary.Footnote 22 Transitional tools primarily aimed either at replacing old personnel in illiberal systems or eradicating corruption during transitions have not been carefully paired with efforts to replace certain informal practices with integrity-driven practices within institutions.
The Article will follow a diachronic depiction of each extraordinary round in CEE and SEE. The first part will analyze the ‘90s lustration process in the frame of decommunization efforts and targeted attempts to depart from old judges aligned with communist regimes, be they dismissals en masse or individual disciplinary processes. The second part will argue that these processes’ shortcomings, such as faulty trials or politicization of the past, were repacked into quasi-new frameworks in the Europeanization processes of the early 2000s, in which lustration was used interchangeably with vetting. It will argue that in those CEE countries preparing for European Union (EU) accession, the cleansing operations of the judiciaries included simultaneously anti-corruption efforts and measures tackling their undemocratic past, with limited results. Furthermore, institutional reforms that were adopted could not translate judicial personnel reforms into meritocratic and integer personnel policies, exacerbating either a lack of accountability or accountability transgressions for the affected judiciaries. The third part will follow: a) the 2.0 transition process of judicial backsliding reversal in Poland and the dilemma of invalidation of the status (dismissal) of judges elected in a non-independent manner (neo-judges); and b) the 3.0 transition phase of judicial vetting as applied for countries still considered in transition that are currently subject to pre-accession conditions —Albania and Ukraine. The third part of the Article concludes.
B. First-Wave Cleansing Reforms: Judicial Accountability in Transition 1.0
The fall of communist regimes throughout CEE and SEE marks the first step towards what has been defined as transition 1.0,Footnote 23 a process in which former communist dictatorship countries were willingly and comprehensively transforming themselves into liberal constitutional democracies. Despite the criminal justice dimension, the lustration process included administrative and quasi-judicial processes focused on the screening and exclusion of officials associated with the previous system, including judges. This was and is still considered a crucial aspect of discontinuing authoritarian practices towards the rule of law and a functioning independent judiciary. In order to understand the role of continuities and discontinuities within judiciaries through the processes of lustration, it is essential to underline the policy choices of dealing with the past, the constitutional dilemmas faced on the verge of such choices with regards to the rule of law, and the impact of those choices on courts as institutions. The debate is, therefore, driven at the policy choice/legal framework level, procedural/material constitutional review level, and formal/informal institutional level.
Lustration laws are famously known for being at the same time stable frameworks of transformation and instrumental means of achieving it.Footnote 24 While solving the problems with the past, lustration and decommunization became at the same time legal and political tools in the re-arrangement of the constitutional setting of the society and the state.Footnote 25 Rosenberg defines the Eastern Block dictatorships as conspiracies of all society, where repression was so intense as to make everyone complicit—at once victims and perpetrators.Footnote 26 Therefore, the nature of lustration involved several extraordinary and transitional measures, such as purging, truth-telling, and vetting. Despite having different frameworks, dynamics, implications, and responses from judicial review, lustration processes had some attributes related to their intent, which were common for all the countries where they were applied: They were transitional justice measures, aimed at building trust in the judiciary, with a timeline and an expiry date, acting in an extraordinary fashion, to restore rule of law and “to prevent future abuses by breaking down informal networks and removing opportunities for the abuse of privileges that might linger from the previous system.”Footnote 27
These rationales affected the whole approach to dealing with the past. They depended on many factors related to the regime transition, such as the level of repression of the communist system, the previous existence or non-existence of civil society, but most importantly, the path-dependency of the existing informal networks that facilitated or failed to facilitate the transition. These factors largely dictated the choice of policy and tools to screen and exclude former collaborators, mainly with the respective ministries of interior (secret service).Footnote 28 In fact, it has often been argued that the logic of full rupture from the previous system as applied in the Czech lustration reforms comes from the fact that the civil society that drove forward the “end of communism” was not involved in negotiations with the communist elites—unlike in countries like Hungary and Poland, where civil was deeply entrenched in facilitating the so-called negotiated nature of the transition.Footnote 29
The Czech Republic has long been championed as the country having the most comprehensive of lustration legal frameworks.Footnote 30 It was the only country that declared the communist system criminal and illegitimate and approved overhauling measures through its two Lustration Acts.Footnote 31 It has also been praised for the systemic, specific, and differentiated measures to address the “issue” of communist judges, consisting of a combination of individual and collective accountability mechanisms, regrouped by Šipulova and Kosar into the conceptual categories of Core Transitional Justice Measures and Derivative Transitional Justice Measures.Footnote 32 The most efficient tool of all seems to be the first—a purging measure, namely the firing with immediate effect of all the court presidents in the Czech Republic. The rest of the judges underwent proper vetting through individual accountability processes; almost all of them were restored to their positions through judicial review, non-retroactivity, and due to the inability to measure their involvement with the totalitarian system and the need for judges in the new system.Footnote 33 Contrary to widespread beliefs, critical and analytical approaches to this process revealed a lower impact of the lustration laws on the Czech Republic’s judiciary. Not only did certain “old judges” remain in the system, but they preserved their influence so that the newly appointed ones perpetuated existing informal practices by the sheer force of socialization.Footnote 34
While the Czech case is the perfect example of how, even despite the harshest measures, path-dependency might prevail, the rest of the examples only underscores this presumption. The rest of the CEE and SEE countries applied different shades of more “lenient” measures. Slovakia kept applying de jure the initial Czechoslovak-appraised vetting law until it expired in 1996. Following that law’s expiration, Slovakia did not renew it, instead approving the Law on the Immorality and Injustice of the Communist Regime—a law of a purely declaratory nature.Footnote 35 Bulgaria and Romania have been considered to have the so-called informal lustration process, or as Sadurski names it, together with the Polish model, the more lenient lustration process.Footnote 36 Due to extreme politicization, Bulgaria and Romania were able to adopt lustration laws only too late—and too little, some claim—after the system’s change. By 1997, Bulgaria had expanded the scope of its lustration regime to encompass government officials, Constitutional Court judges, and members of the ordinary judiciary. This expansion was subsequently declared unconstitutional insofar as it applied to Constitutional Court judges and other judges, with the invalidation resting exclusively on separation-of-powers considerations rather than on the protection of individual rights.Footnote 37 The Polish case was the one that focused exclusively on “truth-telling,” and as far as courts were involved it only purged the Supreme Court.Footnote 38 Albania has been considered amongst “the intermediate models” by Sadurski for having adopted a lustration law, but as a “non-case” in Thorne’s transitional justice typologyFootnote 39 for making it ineffective in practice by means of judicial review.Footnote 40
In the constitutional review realm of the post- 90s, lustration does not allow for a normative frame that tolerates extraordinary measures without questioning the nature of the rule of law itself. Retroactivity and legal security were the main concurring concerns regarding the question of whether and to what extent radical measures exceptional to “ordinary” rule of law were necessary to protect it. Robertson describes the process of each newly established post-communist Constitutional Court, addressing differently the question of what to do with incumbent judges as “a problem of their own, solutions of their own.”Footnote 41 The constitutional review standards against which the process of lustration took place were being developed at the same time as lustration itself. The newly founded Constitutional Courts started applying doctrines of vires and rights, retroactivity, and legal certainty and found their voice through their conception of rule of law, either in a procedural or material sense. The constitutional review cases of the lustration laws of Czechoslovakia and Hungary are illustrative of these radically different conceptions of the rule of law. The Czech Constitutional Court applied a material/substantial approach, by relying on non-continuity as a material concept within rule of law, and legitimizing the use of exceptional measures to protect its foundational values, such as denying statutory limitations to misdoings of the past.Footnote 42 The Hungarian Constitutional Court, on the other hand, relied on the principle of legal certainty as a procedural guarantee to upholding the rule of law and favored the application of the statute of limitations,Footnote 43 backing those scholar and activist voices in favor of not applying the law retroactively the way the previous system did.Footnote 44
Seemingly, one cannot have both: legal continuation and discontinuation of authoritarian practices within judiciaries are a zero-sum game. In the best of scenarios, one could hope to have one of the two: the better results of cleansing the judiciary while having to apply, preferably once, an extraordinary rationale to the rule of law—such as the Czech case illustrates—or an application of a procedural collective imagination of the rule of law which allows for legal certainty without hoping to cleanse the judiciary. In most of the CEE and SEE post-communist countries, these reiterated attempts resulted in a lose-lose game: poor rule of law compliance and continuation of authoritarian practices within judiciaries, leading to lustration becoming a recurring topic—or a Sisyphean exerciseFootnote 45 every time a deus ex machina solution was needed.
At the institutional level, continuity and discontinuity lies in the ability of courts as institutions to depart not only from “old” judges, but also from the practices they generated and institutionalized during totalitarianism. Judiciaries of Central Eastern Europe were cleansing while building themselves anew at the same time. In the immediate aftermath of the system change, it was of utmost importance to increase the number of judges, all the while dismissing the ones cooperating at various levels with the previous systems. The jhuman resources within courts, including judges and personnel, were inherited and lacked the professional abilities to manage personnel change. The Czech solution to encountering the shortages was to resocialize “old’ judges.”Footnote 46 In other countries, such as Albania, large-scale dismissals of judges—justified under the rubric of “dealing with the past”—were carried out on the basis of weak labour-law provisions rather than on judicial-specific rules affording adequate guarantees of tenure. As a result, communist-era judges were replaced not through principled institutional reform but by other, equally politicised appointees, reflecting the preferences of the governing majority.Footnote 47 The case of the appointment of the “new” judges with only six months of training in Albania became one of the favorite anecdotes of transition and yet the most used justification for the two rounds of cleansing reforms to come.
The job of seeking and establishing truth by supporting or deciding on the process of screening of judges fell upon ad-hoc administrative bodies named Truth Commissions, Verification Commissions, Lustration Courts, et cetera. The establishment of Truth Commissions was very politicized—the lustration process was, too. Truth became the most difficult, unrealistic, and politicized narrative in the hands of its beholders. Its instrumentalization became one of the reasons for the “unfinished revolution” of CEE and SEE countries.Footnote 48 In Poland, Romania, Bulgaria, and Albania the files leaked in a very discretionary and selected way, to target specific individuals. These institutions became symbols of a collective guilt rationale on the one hand and the delivery of selective justice for strategic reasons to fight political enemies on the other. Criticized for providing unreliable information and being used by strategic players that mingled with the files, the “truth establishers” were the silent bearers of the authoritarian mentality into the new system, and the enablers of “possible information problems, due process violations, employment discrimination issues, and bureaucratic loyalty concerns within the context of lustration.”Footnote 49
Scholars are divided on whether lustration has been an efficient tool for disrupting authoritarian practices within judiciaries and on whether it helped set up a pathway for new independent and accountable judiciaries. As this Article will further show, legal strategies to achieve wide-scale disciplinary actions based on decommunization efforts and integrity criteria have had limited impact within courts while creating juncture points that opened leeway for misuse and abuse. The first rounds of post-communist administrative processes of lustration and decommunization as preconditions for establishing judicial integrity were tales of high hopes and often disillusionment. The claim of insufficient or inadequate addressing of sitting ex-communist judges has been frequent throughout the postcommunist world, yet the long-term effects of these measures (or their lack) in further institutionalization process of liberal practices in judiciaries are more difficult to measure. However, another way of looking at this effect is possible; a conception of discontinuity which is larger than the test establishing whether the judges who cooperated with the communist system remained in the system or not. It is about whether the remaining ones perpetuated mentalities from the previous authoritarian system—whether they helped or resisted the aims of transitional justice to prevent future abuse. As the next section will illustrate, lustration and vetting as part of judicial reforms in the pre-accession and post-accession phases of CEE countries only attest that lustration remained an unfinished business in CEE with every round successful enough to justify or incite further related reforms.
C. Second-Wave Cleansing Reforms: EU Accession and Judicial Accountability Perversions
To the question “When are countries done with the past?” meaning whether a state is mature enough as to reach its social transformation aims without another revolution, the European Court of Human Rights (ECtHR) has responded with the notion of a “democracy capable of defending itself.”Footnote 50 This was apparently not the case yet with CEE and SEE countries in the early 2000s. Despite being well into their democratic consolidation phase, they perceived themselves as not safe yet from the authoritarian past. Despite the problematic notion of temporality and amidst deep politicization, lustration and vetting made a comeback even after the first transition phase to become part of a second phase: the EU pre-accession transformation.
CEE countries about to become EU Member States were not emerging democracies anymore, but in the phase of democracy and rule of law consolidation. And yet, lustration as a policy choice came back in the 2000s with the same fervor as it did in the first wave of the liberal democracy transition. There was a presumption amongst policymakers, but also in academia, that the lack of proper lustration had a positive correlation to the emergence of corruption, due to the old elites retaining power in key areas.Footnote 51 The so-called “return to Europe” for eastern countries in the continent—meaning their perspective on joining the European Union—called for dealing with whatever past was not dealt with during the first phase of the establishment of judiciaries while at the same time addressing issues with judges’ integrity and the strengthening of judicial institutions as preparation for the European future. The transnational normative and political community increased its presence by establishing more criteria and standards and pushing these processes through EU accession conditionality.Footnote 52
Courts were central to this transformation process, because they were set to become European courts according to the understanding of the EU Treaties, able to uphold the rule of law in this polity.Footnote 53 The legacy of misused lustration processes was merged with Europeanization and pre-accession reforms by repacking lustration with new elements of integrity and anti-corruption. Lustration and vetting started to be used interchangeably and put to the forefront of judicial reforms, mixing anti-corruption as preparation for the future with elements of dealing with the past: “Recent lustration episodes intersect EU-driven conditionalities which are systemically misconstrued to equate sheer effectiveness in the repressive fight against corruption with the liberal-constitutional value of the rule of law.”Footnote 54
Lustration laws expanded in scope and transparency, ensured files were more accessible. Processes of cleansing, too, were driven forward by governments invested to regain the trust of the citizens, the trust of their international partners—and to attack their political opponents.Footnote 55 Poland and Romania adopted lustration laws in 2006; Slovakia restarted its attempts at reviving lustrations in 2004; even the Czech Republic renewed its lustration laws, even though the “transition-to-democracy” circumstances that had justified their adoption had ceased to exist.Footnote 56 Hungary made accessible the files by means of a law in 2003, which finally ensured, considering the CC interpretation of the shortcomings of the 1994 law, informational self-determination, based on the right of people to see their own files.Footnote 57 Slovakia also made files accessible by establishing the Nation’s Memory Institute (NMI), in an attempt to fix the shortcomings of its lacked lustration in the first transition phase.Footnote 58 Romania and Bulgaria also renewed attempts at dealing with the past while still transforming on the brink and in the aftermath of EU accession. The process took place in 2006–2008, where files were opened again and made public, pointing to the controlling hand of the secret service in RomaniaFootnote 59 and the judicial insulation fuelling corruption and elite intervention in Bulgaria.Footnote 60 And yet, even after accession, lustration was a moral duty left to each their own, and anti-corruption was treated as a supranational technical checklist to be abided by.Footnote 61 The Constitutional Court of Romania (2008) and the Constitutional Tribunal in Poland (2007) declared the newly passed lustration provisions as unconstitutional in their entirety on concerns related, again, to rule of law such as retroactivity and legal security.Footnote 62 This leaves paradoxically the 2000s period relying on the mechanism of public disclosures as the only lustration device.Footnote 63
The temporal effect in this second decade of cleansing becomes more significant as more time passes. In tandem, it becomes more difficult for governments to justify such interventions and to prove willingness to guarantee respect for the rule of law principles such as legality, legal security, and overall avoidance of misuse of power and of revenge. This became increasingly the concern of regional supranational courts such as the ECtHR. A representative case is that of Ivanovski v “The Former Yugoslav Republic of Macedonia,” concerning the dismissal of a Constitutional Court Judge who was found to have collaborated with the Secret Service some 30 years before his dismissal process. The court found that the interference with the applicant’s right to private life could not be justified as “necessary in a democratic society” and therefore was disproportionate to the aim it sought to achieve.Footnote 64 The risk of repurposing lustration with other-than-democratic aims was also accentuated by the Venice Commission Opinions on the second-round lustration project-laws addressing the “cleanliness” of high officials in AlbaniaFootnote 65 in 2009 and North Macedonia in 2012Footnote 66 (then the Former Yugoslav Republic of Macedonia), which included high-level judges. Both were problematic in terms of temporality, proportionality, and affected categories. The Commission strongly suggested such laws be discontinued by the respective countries.
Lustration/vetting as forms of extraordinary accountability measures started to go hand in hand with institutional reforms to ensure the independence of the judiciary, aiming for higher protection from politicization from other branches and enabling separation of powers. The Euro-model judicial council,Footnote 67 a constitutional body whose composition entails a majority of judges and mandated to decide on the selection, career, and dismissal of judges, became the symbol of these institutional reforms. It was promoted through conditionality into CEE countries in the first wave of eastern EU accession in 2004, especially in Slovakia, Estonia, and Latvia, to then be imposed in more mandatory terms in Romania and Bulgaria. Footnote 68 Since its adoption it has turned into the token of the tension between new formal institutions and old informal institutions,Footnote 69 strengthening the presumption that “the independence of the judiciary and the independence of individual judges are two different things and that increasing the former does not automatically improve the latter.” Footnote 70 This model of independence without accountabilityFootnote 71 has often exposed already fragile judiciaries towards new fragilities, hierarchization, and streamlines of power in transitional societies.Footnote 72 Empirical studies in CEE judiciaries suggest that judicial actors that were empowered during the first round of reforms in Central and Eastern Europe remained empowered after the second round of reforms, controlling judiciaries from the inside and curbing the external inputs from transnational actors to their favor.Footnote 73
The lack of internalization of the principle of judicial independence by judges themselves, combined with the lack of accountability of the proliferated judicial council model, contributed to the survival of the authoritarian informal practices within the judiciary, allowing heads of judicial councils or court presidents to fortify their hierarchical position within the judiciaryFootnote 74 —and even enable the executive to “capture the judiciary from the inside,”Footnote 75 as the Slovak case illustrates. The hidden continuities persisted, and the Soviet-type judge was safe under the cupola of institutional independence to exercent dependent practices into the new institutions “either halting or sometimes even reversing the reforms already carried out.”Footnote 76 And while the subservient mentality of judges was reproduced unbothered into the new highly formalized and institutionalized settings, it contributed to the self-perpetuating cycle of communist legacyFootnote 77 known as the corporatism or oligarchization of the judiciary.Footnote 78
The third decade of post-communism (the 2010s) found the judiciaries of CEE and SEE countries that underwent two rounds of reforms in a state of decay. Judicial cleansing (lustration/vetting) and judicial building (institutional reform) took dire turns, resulting in deviations of accountability that worked in three main ways: independence without accountability, abusive accountability, or both.
Romania and Bulgaria represent the latter case as the clearest examples of the inability of post-accession anti-corruption conditionality efforts to change the practices of capture within judiciaries, instead exacerbating them. In Romania, the hidden continuities of the past highlighted the failure of two rounds of lustration to prevent the extended hand of the path-dependent state security (Securitate) from intertwining with the anti-corruption prosecutors in order to target judges that make power uncomfortable.Footnote 79 In Bulgaria, the shadow of the old Procuratura persisted into the new structures, together with the attributed powers that heads of apex courts had over the system; corruption was not prosecuted, and the public narrative sought to blame the lack of the proper lustration procedures.Footnote 80 The attempts put forward by the executive with the justification to fulfill the obligations resulting from the Cooperation and Verification Mechanism—to curb the power of these apex court judges—were made with the intention of silencing critiques of the judicial and political system.Footnote 81
Similar accounts of judiciaries vulnerable to interference despite two rounds of reforms also come from the Western Balkans, where after failed attempts at achieving judicial cleansing while building judicial self-governance, the judiciaries were named the least-trusted branches in corruption perception indexes. They suffered at once from a lack of accountability, corporatism, and politicization (North Macedonia, Albania),Footnote 82 as well as an incompatibility of the judicial culture with the institutional models chosen.Footnote 83
From 2010 to 2020, abusive accountability in CEE judiciaries manifested in the form of illegal judicial purging in Poland and Hungary. The lustration narrative kept being used as a strategic instrument in a highly polarized political discourse in the hands of the right-wing, authoritarian governments. The recurring narrative of “dealing with the past” was used in part to dismantle the rule of law and support attacks from the executive towards the judiciary. Overarching court-packing allowed these governments to attack judiciaries and judges in breach of international standards of judicial independence and the rule of law, be it attacks on the independence of the judiciary as a whole or those of individual judges. Such were the cases of the forced retirement of Supreme Court judges in HungaryFootnote 84 and the disciplinary regime towards judges in PolandFootnote 85 and marking the phenomena of the rule of law backsliding by a thread of recurrence and instrumentalization of memory politics, a so-called “politicised memory governance without rule of law guarantees.” Footnote 86 The Walesa case is also a potent reminder of the misuse of power through the use of memory politics to undermine legal security and rule of law, including abusing accountability powers towards judiciaries.Footnote 87
D. Third-Wave Reforms: Transitions 2.0–3.0 and Lessons Somehow Learned
Despite the ambitious goals of the EU-driven reforms, the persistence of informal networks and the politicization of judicial structures exposed the fragility of these efforts. This fragility became evident in the subsequent decades, as judicial backsliding in some countries and incomplete transitions in others prompted a third wave of reforms to restore judicial integrity and rebuild public trust in courts.
While transition 2.0Footnote 88 is a name reserved for the one that is taking place within the EU, namely the Polish attempts at restoring the rule of law after judicial backsliding, there is another round of judiciary reforms unfolding for countries awaiting at present to be part of the EU, such as Albania, Ukraine and Moldova. This transition wave aimed at judicial cleansing has brought back again the debate on transitional justice tools to restore the rule of law using extraordinary accountability.Footnote 89 The new transitions—either return to liberal democracy after authoritarian setbacks or the latest wave of “return to Europe,” now that enlargement perspectives have been revived—are contemplated, accompanied by the perspective of massive accountability exercises amongst judiciaries. They promise to be the other “one-time exercise” before passing to an acceptable independence/accountability balance according to transnational standards of the rule of law.
In this third round the presumption stands again that these countries need to transform their judiciaries radically to be part of the European Union standard-wise. This time, extraordinary accountability tools for judiciaries have guidelines for lustration and vetting; the judicial review of ECtHR and CJEU is more articulated than ever. The choice of tools to approach systemic deficiencies in judiciaries has nonetheless depended on whether said judicial systems have been considered inherently corrupt or non-independent. Cleansing interventions in Albania, Ukraine, and Moldova have been driven and justified by the presumption that these systems are inherently corrupt and nepotistic, in contrast to the hesitation to intervene in the case of the Polish non-independent “neo-judges” or potentially non-judges due to their unlawful appointment by bodies considered not courts by supranational regional courts.Footnote 90 Their commonalities and differences will be further showcased, as well as the different approaches by the international standard setters on the ever-debated issues of rule of law exceptions. What remains constant is that at this stage the purging of judiciaries has been discouraged due to its collective guilt presumption. It was used in Ukraine as a lustration measure in the aftermath of Euromaidan in 2014 and was contemplated, albeit with a higher margin of skepticism and restraint, in Poland in 2024. Vetting, on the other hand, has been mostly prescribed at this stage, expanding on the understanding of Article 6 especially, but also Articles 8 and 13 ECHR pertaining to judges’ rights—which itself has created a line of cases evolving from “the right to judge into the rights of judges.”Footnote 91
On top of the differentiation between disciplinary sanctions and the status of judges, different levels of sensitivity and awareness to institutional disruption have been shown regarding the effects of such ruptures in this third phase of judicial personnel reform. The next two sections will show how greater caution is being shown nowadays with respect to the impacts of possible ruptures in the case of possible dismissal of the Polish neo-judges, which is probably a lesson learned from the modern vetting experiments in Albania and Ukraine.
I. Purging over Purging? Transition 2.0 and the Curious Case of Neo-Judges
Current debates have sparked around the best ways to restore rule of law and judicial independence in Poland after a period of judicial backsliding, or to respect its proportion, of judicial dismantling.Footnote 92 It has been called judicial transitology Footnote 93 and carries the same dilemmas the country faced 30 years ago in the aftermath of the communist rupture: namely, (a) how to restore rule of law while respecting rule of law principles such as the rights of the sitting judges; and (b) what would be the impacts on the functioning of the judicial system, should one decide to purge or vet 2,000+ sitting judges?
To answer the first question, one needs to consider that the status of the illegitimately appointed judges has been contested by the European supranational courts in various dimensions. They considered that the judicial body that selected the judges (NCJ) is not an independent body,Footnote 94 that the disciplinary chamber of the Supreme Court does not constitute an independent and impartial court within the meaning of Article 6 ECHR,Footnote 95 and that the validity of their decisions can be contested and declared null and void.Footnote 96 The Polish government in power has decided to abide by these court decisions, leaving little doubt on the need to address the status of the neo-judges comprehensively. In the landmark judgment Wałęsa v. Poland, the ECtHR concluded that the scope of the international obligation is not limited to a reform of the deficient NCJ, but it also extends to “address the status of all judges appointed in the deficient procedure.” Footnote 97 However, with no guidelines from European supranational courts on how to proceed with the status of these judges and on whether judges’ rights apply despite their contested status, the issue remains open. The problem of the status of judges in Poland extends its effects also on the question on what to do with the three-million-plus decisions that they produced in the meantime, casting substantial doubt on the compatibility of their annulment with the principle of legal certainty and therefore the rule of law.
Neo-judges have not been found to be liable for any disciplinary break according to law or international standards other than their illegitimate appointment. A potential vetting, or purging for that matter, brings also the risk of confusion between the categories of lack of judicial independence and disciplinary offenses. Drawing precisely on the previous experiences of CEE countries and the frequent calls to expel judges after every rupture, AG Bobek voiced already in his Noble Bank opinion that “not all flaws in a judicial appointment procedure give rise to problems of independence judiciary.”Footnote 98 This is a sign of this debate leaning more than ever in the last decades in favor of exerting caution when deciding on the perennial rule-of-law dilemma of personnel change within “faulty” judiciaries, not engaging immediately in campaigns of massive cleansing, but maybe categorizing the level of severity into groups and taking appropriate measures accordingly.
The much-awaited Venice Commission Opinion on the status of neo-judges in Poland, despite being ambiguous on the solution to be adopted, also signals caution about a possible annulment ex-tunc of all the appointments of judges by the non-independent NCJ.Footnote 99 It states that neither the judgments of the CJEU, nor those of the ECtHR or Polish Apex courts, have an automatically invalidating effect within the Polish national legal system.Footnote 100
The government’s actions, therefore, will have to be guided by a limited selection of options, including at the same time compliance with international standards of judicial independence and consideration for the rights to effective remedies of neo-judges due to their reliance on the very same instruments that the previous judges used to restore rule of law. It must simultaneously adopt a proactive approach to restoring the rule of law—grounded in broad public consultation—while exercising restraint, and tempering its own power,Footnote 101 so as not to abuse its position as a “good reformer,” particularly given that it operates from within the executive branch.
In a broader sense, the Polish case symbolizes the clearest the limits of extraordinary accountability exercises as part of institutional reform to restore the rule of law. Beyond rule-of law-dilemmas, the repercussions of the potential dismissal of 2,000-plus judges create without any doubt hindrances to the ability of the system to replace them, as well as to the legitimacy of their decisions, plunging the state in a situation of legal uncertainty. This “nuclear” option poses dilemmas on how to ensure the judiciary is not paralyzed by vacancies, backlog, and unreasonable length of proceedings while ultimately delivering on the promise to regain the trust of the citizens. The cases of Albania and Ukraine in the next section will illustrate the devastating repercussions of such a scenario.
II. Cautionary Tales from Present EU-Candidate Countries
Actual EU-candidate countries such as Albania, Ukraine, and Moldova have entered their fourth decade of transitionFootnote 102 and their third round of judicial reforms, against the odds of all early optimists prescribing a linear line of progress towards established liberal democracy and rule-of-law paradigms. Vetting has been repacked and repurposed for their judiciaries as a full anti-corruption measure to establish rule of law—in other words, extraordinary security vetting has been replaced with extraordinary integrity vetting. Being too far time-wise from the fall of the communist regimes, it is a concept as much parted from the concept of lustration, in the sense of decommunization, as a rule-of-law desiderata resonating with the same intensity as lustration some 30 years ago. Yet, the distrust of the concerned communities in the ability of their respective systems to reform themselves is coupled with the reliance on international actors and factors to solve judicial independence and integrity issues. This wave of judicial cleansing shares many traits with the first wave of lustration, the most essential being to restore the trust of citizens in the judiciary.Footnote 103 And in a broader sense, it is about creating, as it was already in the first wave of accountability in CEE and SEE, a specific, short-term law that is as much a stable framework of transformation as an instrumental means of achieving it.Footnote 104 Transitional countries that want to join the EU, cautioned by EU backsliders, have faced more and more requests to “clean” the judiciaries from judges who were part of an inherently and systemically corrupt system (Albania, Ukraine).Footnote 105 The “return to Europe” thirty years after the break with totalitarianism has reignited extended transitional measures to ensure justice as prevention.
The transformational power of the EU as a normative authority is fully “unleashed” in this third wave of judicial vetting. Purging and vetting have transformed into sophisticated judicial cleansing operations, but rule-of-law concerns are ever present in them. They are carefully planned, consulted with international experts, financed by international donors, and observed by supranational courts in terms of rule-of-law compliance and respect for the rights of judges. They enjoy the trust of the citizens of the countries where they are applied, due to the international involvement. They call for individualized assessment of judges and ensure their right of access to justice and recourse to dismissal decisions. However sophisticated, in transitional environments they still largely perpetuate the same rule-of-law dilemmas and institutional path-dependency concerns as in the immediate aftermath of the break from communism. From the rule-of-law perspective, international standards have leaned towards interpretations that favor extraordinary accountability against the rights of judges. From an institutional lens, they often become a futile exercise which is hardly translatable into ordinary accountability practices, because path-dependent practices often prevail over personnel changes.
These third-wave judicial cleansing operations have not only been enforced through the process of conditionality for EU accession, but international involvement is such as to be considered not an external but rather an internal factor. Ad-hoc administrative and quasi-judicial bodies, such as the Public Council of International Experts in Ukraine,Footnote 106 either have an international/national composition or are nationally composed and heavily monitored by international bodies, such as the International Monitoring Operation Albania.Footnote 107 This induces again the presumption of the temporality of the measure, a one-time exercise before sustainably restoring rule of law, judicial independence and integrity practices. In the words of the Venice Commission, vetting proceedings “should be regarded as wholly exceptional and subject to extremely stringent safeguards to protect those judges who are fit to occupy their positions.”Footnote 108 In these cases, the prescription to corruption pointed to individualized extraordinary disciplinary proceedings Footnote 109 fitting with the concept of classical vetting.Footnote 110
Currently, Ukraine is experiencing its third attempt at judicial cleansing within the framework of wider lustration measures to depart from pre-Euromaidan judges on whom political pressure was exerted to condemn protesters.Footnote 111 It involves two instruments: purges and vetting. The purging of the court presidents responsible for the prosecution of Euromaidan protesters reminds of the presumption of the “collective guilt” which emerged in the first phase of lustration.Footnote 112 The dismissal with immediate effect of court presidents who were not independent is similar to the purge of the Czech judges in the aftermath of communism.Footnote 113 It is a rarity to rule of law standards established after Polyakh and others vs Ukraine, a case originating in Ukraine where the court reiterated the need to conduct processes of individualization of responsibility in lustrations.Footnote 114 Following the purge of the court presidents, all the other judges in Ukraine underwent, or are still to undergo after the relaunch of the process, a classical vetting based on their assets and integrity.
Albania’s judicial vetting, on the other hand, fits with international standards on individualized screening for public office, adhering to classical vetting principles. It was driven at the constitutional level, was well-thought-out and not fragmentized, and drew broad public participation. Drafted by international and national High-Level Experts,Footnote 115 it was approved by the Venice Commission and legitimized by the ECtHR to apply an extraordinary logic to the rule of law, driven by the exceptional circumstances of systemic corruption in the judiciary.Footnote 116 Since 2016, all of Albania’s 805 judges have passed an individualized check on assets, professionalism, and integrity, a process concluded in 2024. And yet rule of law concerns persist. In the overall tests applied on whether to adopt such measures, more consideration was given to accountability than to independence or concerns about the status of judges. Even though the personal lives of judges were disproportionately affected, and the burden of proof in administrative proceedings was reversed from the authorities to the judges, the ECtHR considered the breaches of the right to respect for private life as necessary, due to the pervasive and systemic corruption in Albania.Footnote 117 Even for the judges that resigned before the vetting started, the 15-year ban from the judiciary was considered in line with Article 6 ECtHR, all while bypassing the due process that should have led to that decision.Footnote 118
The other consideration of massive-scale judicial accountability operations is the functionality and efficiency of the judiciary in its immediate aftermath. Albania, like Ukraine, lost around one-third of its judges in the process.Footnote 119 In Albania, this loss led to the total block of the functions of the Constitutional Court and the High Court simultaneously for two years, named the rule of law paradox.Footnote 120 The damages to rule of law in the name of rule of law restoration were considerable. Furthermore, the lack of operationality of ordinary courts led to the perilous rise of backlog in the system, as well as a reconfiguration of the country’s court system to meet efficiency needs emerging due to the lack of judges.Footnote 121
The third and most important matter for the purpose of this Article revolves around the legacy and impact of permanent independent and accountability institutions. Despite the very extensive institutional reform in the aftermath of the vetting process, initial studies speak to the insufficiency of the permanent accountability mechanisms to amount to a proper discontinuation of the informal practices of corruption and hierarchical authority within the judiciary. In Albania, this has been attributed to “quick fixes” and superficial EU monitoring of institutional reform, both of which have legitimized de facto increased political control over the new institutions.Footnote 122 Furthermore, jumping from an extraordinary accountability logic to re-building ordinary accountability mechanisms has proven difficult so far for Albania, testing the path-dependency force of practices of everyday lack of accountability in the process of selection, evaluation, and transfer of judges. The lack of transparency of the judicial councils in performing these tasks is proven even by the first rule of law report of the EU Commission for Albania in the aftermath of the judicial reform.Footnote 123 The legacy of the vetting process is also tested against the opaque power of socialization of judges, mentioned throughout the Article as a reform-resistant power. Judges discharged by the vetting process in Albania for lack of integrity are at the same time professors and mentors in mentorship programs for the new judges who enter the system.Footnote 124
In Ukraine, the removal of all court presidents was followed by new elections amongst rank-and-file judges to select the new court presidents and not surprisingly, ended with the election of the very same court presidents that were dismissed.Footnote 125 This is where the problem of the sustainability of the reform lies: In that even in the most radical vetting processes, as seen in Albania and Ukraine, the integrity exercises are not internalized in such a way as to become part of the institutional life of the judiciary.
Reforms that do not introduce proper accountability measures for the day-after-vetting in courts have not been successful in milieus where harmful informal practices compromise the integrity of the judiciaries. The spread of these practices at this stage have led policymakers from other pre-accession countries to consider the ability of vetting to disrupt harmful practices within judiciaries.Footnote 126
Ordinary accountability mechanisms include strengthening the procedural guarantees of the selection, appointment, and evaluation of judges and the permanent disciplinary accountability systems in place. There is a need for transitional judicial reform attempts to provide clear conceptual differences between anti-corruption approaches and approaches aimed at preserving judicial independence despite possible overlaps. It is relevant, therefore, not to use anti-corruption measures to attain judicial independence, as their disappointing impact fails to respond to a faulty presumption.
As far as judicial independence is concerned, the Polish case of neo-judges shows, on the one hand, the scant value of traditional vetting instruments to tackling the problem of defectively appointed judges and, on the other hand, how complicated rule-of-law restoration is when departing from an “extraordinary” rule of law approach. The imperative of an “ordinary” rule of law approach is relevant not only to not succumb to the same purging patterns as those of the illiberal predecessors but also to keep in mind the lack of operability in the judiciaries undergoing massive scale cleansing operations that create further rule of law loopholes and perpetuate other overhauling reforms as critical junctures.While there is no one formula which effectively prevails in the balancing tests used to address the many complex and oftentimes competing aspects of judicial independence, such as tenure of sitting judges versus restorative justice, these processes of scrutiny call for individualized considerations and, if that is not possible, for typologies and targeted remedies for each. This is as much a legal task as a political and strategic one, which might need to introduce several categories of judges, choose different transitional methods accordingly, and conduct the personnel change process in stages. If one faulty judicial appointment presents a simple remedy, the way the test of Guðmundur Andri Ástráðsson v. Iceland Footnote 127 shows, 3,000-plus faulty appointments need legal creativity, and ultimately also a measure of self-discretion—albeit a legitimized one.
Regarding anti-corruption measures, permanent institutions and practices have proven more efficient in tackling systemic integrity problems within judiciaries and around them, even if more difficulty is established. Consolidated asset-declaration systems for judges and other high-level officials allow for the system to defend itself better than do one-time anti-corruption vetting processes that do not guarantee the application of the same standards into ordinary proceedings for judges entering the system or throughout their tenure and limit themselves to administrative measures for criminal acts of corruption. Recent institutional-design literature has focused on the unique judicial anti-corruption bodies in countries with systemic corruption issues. UkraineFootnote 128 and Albania have established their respective specialized anti-corruption courts and investigation apparatuses that support these courts’ functioning—with differing results. Albania’s special corruption court system has scored considerable success in investigating high-level corruption cases, including those against sitting ministers, mayors, and opposition leaders, raising public trust in the judiciary as never before during the transition.Footnote 129 This parallel judicial system proves that given initial screening, training, and procedural guarantees for judges, judges tend to operate independently and efficiently. Unfortunately, the limits to these sorts of institutions are twofold: Firstly, they are still reliant on international support, and the real test remains their operation independently from foreign guarantees; and secondly, the guarantees provided to specialized courts have not been mainstreamed throughout the respective judiciaries, leaving the latter struggling with weak and deficient institutional safeguards.
Strengthened ordinary accountability practices within judiciaries tend to create more sustainability within the system than extraordinary processes and weak ad-hoc judicial bodies that apply expost criteria, which risk breaching the individual rights of judges. Proper training of judges in judicial academies where socialization occurs is also of utmost importance for the tenets of acceptable behavior in courts as institutions, and their legitimization within and around the judiciary. Guarantees of tenure for judges, access to courts, salaries, and dignity in performing judicial functions are also of utmost importance. Ultimately, strong institutions are vital.
E. Conclusions
Through experiences from CEE and SEE, this Article showed the risks related to the phenomena of pervasive or repeated “cleansing” of judiciaries. Not only have they had a recurring logic of “exceptional” rule of law, but they perpetuate recurring cogent reasons for its being an exception. It is a logic that contributes to a state of discontinuation and fragmentation that has allowed for the pendulum of justice to move in a Greek-tragedy logic between accountability without independence and independence without accountability, perpetuating the state of transition. Despite the questionability of these actions in terms of rule of law framing, there is yet no conclusive normative, empirical, or theoretical framework that can relate extraordinary accountability measures alone to the reproduction of integrity practices in the judiciary. On the contrary, plenty of evidence that shows that focusing on accountability alone is not a sustainable tool to either disrupt informal corporatist networks or the mindset of communist judges or bad-faith politicians, which is immediately replicated through practices and informal institutions.
As this analysis has shown, each wave of judicial reform—from the early lustration processes to the EU-driven reforms and the more recent vetting exercises—has grappled with the same underlying challenges of balancing independence and accountability. The recurring reliance on extraordinary measures underscores the need for a deeper focus on sustainable institutional reform, a theme central to the lessons learned from these transitional efforts.
In the past decades of emulation of liberal democracy patterns in ex-communist countries, the weakest rule of law and the more invasive judicial reforms have been prescribed to mend the fragile situations of abuse created throughout the transition. Yet, the critical junctures created by these reforms provide precisely the sort of gap that actors can use in bad faith to consolidate power unchecked and ensure that it stays that way. In comparative constitutional law, what has traditionally constituted an established democracy are the practices that keep institutions from creating abuse or misuse of entrusted power. When these practices began to erode, similar problems arose also in consolidated democracies. Strong rule-of-law-abiding institutions from inception need actors trained and willing not just to perform the roles envisioned for them but embody them to perceive self-interest as the interest of the judiciary.
The latest iteration of transitional justice has been accompanied by heightened awareness shaped by the experience of earlier phases. This awareness reflects increased sensitivity to the risks inherent in invoking a state of exception to the rule of law, as well as to concerns relating to retroactivity, legitimacy, temporality, and proportionality. Particular attention has been paid to the protection of judges’ rights, including security of tenure, the right to respect for private life, and effective access to judicial remedies. Furthermore, it has been recalled that the institutional ruptures caused by full personnel change can harm a justice system’s functioning and public belief in the ultimate promise to restore faith to the judiciary for their communities.
Post-communist countries illustrate the path dependent remnants of communist legacy either into informal practices of corruption and corporatism within the judiciary, or legitimization of attacks by (semi)authoritarian governments towards the judiciary. While the latter is extremely dangerous, it is also the most explicit of scenarios. Despite the highly formalized set of rules and European implementation of best practices to ensure the independence of the judiciary and the ever more sophisticated attempts at cleansing the judiciary, the mechanisms of perpetuation of certain practices require the strengthening of “normal accountability” mechanisms in judiciaries.
The recurring waves of extraordinary judicial accountability have missed their particularly important dimension of institutional reform, and by default, of the different trajectories of institutionalization that survive personnel change, such as the mental fortress of the judges that perpetuates itself. All ad-hoc attempts to change the trajectory of a judiciary will lack long-lasting effect if not directed with the same ardor towards permanent institutions as towards lustration, vetting, purging, and other extraordinary accountability exercises. Without dedication to the sustainability of the principles they intend to restore, these cycles are condemned to repeat themselves.
Acknowledgements
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