Initiative to the Constitutional Court about the Lustration Law 03 September 2012
The Helsinki Committee for Human Rights of the Republic of Macedonia today submitted to the Constitutional Court an Initiative for Initiating Proceedings for Evaluation of the Constitutionality of Provisions form the Law on Determining a Condition for Limiting the Performance of a Public Function, Access to Documents and Publication of the Collaboration with State Security Bodies (Lustration Law)
The unconstitutionality, among other things, could be seen in the period to which the law refers to –the year 2006 and not 1991, when the country gained its independence and introduced a multi-party democracy. Secondly, the provision with which it is allowed to publish the names of alleged former police collaborators, without a right to an appeal.
The main purpose of every lustration law is to deal with the past. This is why the Council of Europe adopted recommendations which refer to certain standards, which should be a part of those laws. This especially refers to the time limit. Dealing with the past and with persons from the past which performed a public function and violated the human rights is the main purpose of the lustration process, so these persons can be subjected to lustration.
This is why according to the Council of Europe the lustration process should only include the period until the fall of the former communist regime, which occurred in Macedonia in 1991. It is complete nonsense and it is completely unclear why the period of lustration in Macedonia should be until the year 2006, when the Law on Public Access to Information was adopted.
Except for an appropriate period, every law must include a suitable procedure, i.e. establishing a body in charge of lustration. This is another one of the points to which we refer in our initiative, because we consider that with the current law, the Commission is given jurisdiction of a court. How can it be that a body which is not judiciary to have the right to adopt decision which has an effect of a court verdict- i.e. to adopt decisions which are final and without an appeal procedure?
That is unconstitutional, because the constitution guarantees to all citizens the right to an appeal to every action that refers to them. A body formed by the Government cannot take a jurisdiction of a court. It is against the principles of rule of law and division of power to legislative, judiciary and executive. However, in this case the Government i.e. the executive power takes over the role of a judiciary power.
The initiative can be downloaded at the following link