DR. M. YAŞAR DEMİRCİOĞLU*
During the process in which tens of thousands of public employees were discredited and purged from public institutions by being exposed in the Official Gazette with their personal identification information under the accusation of membership in a terrorist organization, İbrahim Kalın, who is still the head of the National Intelligence Organization, claimed in an interview with the international media that these actions were a method for the state to rid itself of criminal individuals within its own ranks under the ‘Right to Purify.’ To prove his unjust claim, he pointed to the process of reunification of the two Germanys, where hundreds of thousands of public servants were dismissed from their jobs as evidence. At the same time, a report published by SETA, one of the political power’s propaganda organizations, attempted to justify Kalın’s claims by presenting various arguments about the legal validity of the state’s right to cleanse itself of criminal public employees, to be absolved, and purified.
So, when compared to purification processes in different countries in recent history, do the practices operated through the Decrees with the Force of Law (KHK) in Turkey have a legal basis? Do the applications put into effect in Turkey as a social genocide through KHK contain legitimacy in terms of the principles of the European Commission, the jurisprudence of the Human Rights Court, or the general practices of international law?
The Right to Purify was first implemented in 1946 by the Allied Powers after World War II against war criminals, those who committed crimes against humanity, senior public officials of the national socialist power, military personnel, and members of the security bureaucracy who served during the Nazi dictatorship period, and emerged as the ‘Denazification-The State’s Purification from Nazism’ practice. The Control Council Directive No. 24 dated January 12, 1946, “Removing Persons from Positions of Responsibility and Responsibility Who Are Hostile to the Efforts of National Socialists and Their Allies,” and the Law No. 104 dated March 5, 1946, “The Liberation Law from National Socialism and Militarism,” were the major purge laws enacted in post-World War II Germany to regulate the state’s purification from National Socialist public officials.
After the fall of the Communist Bloc, especially during the reunification process of the two Germanys, a purification process was conducted aimed at the dismissal of employees/agents of the former East German State Security Ministry/STASI to allow for the establishment of a democratic state order and to prevent the employment of guilty individuals in the state. In particular, the Unification Agreement of the two Germanys dated September 18, 1990, accepted that public servants working in the Democratic Republic of Germany (East Germany) would be subject to purification from public services due to:
- The lack of professional qualifications or personal suitability to fulfill the conditions of work,
- No longer being of use due to no need for their service,
- Those who committed crimes against humanity or violated the principle of the rule of law,
- Employees who worked for the former State Security Ministry / National Security Office (STASI).
The first international principle regulation on this matter is the ‘Purification Principles’ published by the Parliamentary Assembly of the Council of Europe in 1996. Following the collapse of the Communist Bloc, these principles were published to guide the process of purging state officials who worked in high-ranking positions in the old totalitarian systems during the democratization process of states organized with former totalitarian systems, the cleaning of the system, and the elimination of individuals who committed crimes against humanity. These principles are still accepted today as fundamental measures and principles in judicial reviews conducted by the European Court of Human Rights.
Why was the ‘Right to Purify’ necessary? While explaining the purpose of purification processes, the Council of Europe stated that “the legacy of former communist totalitarian systems is not an easy legacy to handle, at an institutional level, this legacy included (excessive) centralization, militarization of civil institutions, bureaucratization, monopolization, and overregulation, and at the societal level, it extended from collectivism and conformism to blind obedience and other totalitarian thought patterns, making it difficult to re-establish a civil, liberal state under the rule of law on this basis – thus, it was necessary to dismantle and overcome old structures and thought patterns,” emphasizing that the dismissal of employees of totalitarian communist systems in the new democratization process was necessary and obligatory.
According to the Council, the goals of the transition to democracy are to create pluralistic democracies based on the rule of law, respect for human rights, and diversity. The principles of freedom of choice, equal opportunity, economic pluralism, and transparency in the decision-making process all have a role to play in this process. Separation of powers, freedom of the media, protection of private property, and development of civil society, decentralization, disarmament, elimination of monopolization, and bureaucratization are some of the tools that can be used to achieve these goals. If an unsuccessful path is followed in the transition to democracy, many dangers may arise. At best, oligarchy instead of democracy, corruption instead of the rule of law, and organized crime instead of human rights will prevail, and at worst, even if the newly budding democracy is not violently overturned, the result may be a soft restoration of a totalitarian regime. The key to peaceful coexistence and a successful transition process lies in establishing the delicate balance of administering justice without seeking revenge.
For this purpose, the Council of Europe stated that it found it necessary to take administrative measures against individuals who held high-ranking positions in old totalitarian communist regimes and supported them, to provide the possibility of establishing a new democratic system. The purpose of these measures was to prevent individuals who had shown no allegiance or belief in democratic pluralistic principles in the past and now had no interest or motivation to transition to them, and who were not trusted to exercise their powers in accordance with democratic principles, from wielding government power. The Council of Europe generally emphasized that these measures could be compatible with a democratic state under the rule of law if several criteria were met.
The ‘Right to Purify’ cannot be abused! According to these criteria, guilt must be individual rather than collective and must be proven in each case. The right to defense, the presumption of innocence until proven guilty, and the right to appeal to a court must be guaranteed. Revenge can never be a goal of such measures, and the resulting cleansing process must not be allowed to be politically or socially misused. The purpose of the cleansing is not to punish people assumed to be guilty – that is the job of prosecutors using criminal law – but to protect the emerging democracy.
According to the guiding principles of the Parliamentary Assembly of the Council of Europe, the focus of lustration/purification practices should be threats to fundamental human rights and the democratization process. Political or social misuse of the lustration process is not permissible.
Furthermore, the Council of Europe accepts the principle that employees removed from their positions based on ‘purification laws’ should not lose their previously acquired financial rights in principle.
In reviews of purification policies, the first group of public employees subjected to these measures includes those who caused or were complicit in torture, crimes against humanity, and severe human rights violations, or those who took initiative in the process of committing these crimes, namely high-ranking officials of the security bureaucracy.
After the collapse of the Soviet Union, in countries like Ukraine, Albania, Poland, Lithuania, Hungary, and the Czech Republic, former communist elites continued to hold power, and bureaucracy and public officials continued their old roles and authorities. In this liberalization process, the concentration of economic resources in the hands of former managers of state-owned companies led to the creation of an “oligarchic” economic and political system. Therefore, the society faced many challenges in establishing a democratic election and parliamentary system and achieving an effective transformation in public administration.
The main goal is to build a democracy based on the rule of law The fundamental goal was to build a pluralistic democracy based on values such as the rule of law and respect for human rights. The constitutional democratic state had the right to demand loyalty to fundamental values such as human dignity, the rule of law, democracy, and human rights from public officials. Constitutional democracy was only possible with the effective protection of these values by public officials. The behavior of officials in the state bureaucracy led to the loss of citizens’ trust in public authorities. Government bodies at both central and local levels had become inseparably linked with violations of citizens’ rights, corruption, and disregard for the constitution and laws. The implementation of purification policies would restore citizens’ trust in the government and minimize the level of corruption. It was within this framework of fundamental goals and principles that countries like Ukraine, Albania, Hungary, Poland, Lithuania, and the Czech Republic implemented purification policies.
For example, in Ukraine, the practices of Lustration/Purification in public services were sanctions in the form of removal from public services for periods of 5 and 10 years. Individuals subjected to 10-year removal from public services were defined as public officials who worked in high-ranking public positions for at least one year, military personnel, individuals in judicial or administrative positions, individuals who held high-ranking positions in the Communist Party, those who worked as secret agents for the KGB during the Soviet Union period, and individuals who enriched themselves by violating the Public Officials Principles Law.
Democracy’s ‘defense mechanism’ The right to purify is internationally recognized as a defense mechanism developed by democracy, self-defending and self-protecting democracy, and militant democracy against individuals who want to destroy democracy. However, according to the principles of the Council of Europe, lustration practices should be limited to positions where there are valid reasons to believe that the person poses a significant threat to human rights or democracy, i.e., appointed state duties involving significant responsibility in the creation or execution of government policies and practices related to internal security.
Likewise, lustration processes can be applied in terms of state institutions such as law enforcement forces, security and intelligence services, judiciary, and prosecution, where human rights violations can be ordered or committed. However, even for such high-ranking officials exercising state sovereignty, the principle of the individuality of the crime must be strictly adhered to, proving what actions and processes by the individual pose a threat to the democratic state order, violate individuals’ fundamental rights and freedoms, and constitute subjects of crimes against humanity. Lustration/Purification cannot be used by political power as a tool to purge opponents, be abused, or misused.
(The second part of the article will cover Lustration Practices in European Court of Human Rights Decisions).
*Dr. Yasar Demircioglu is an expert in international law, justice, and human rights, currently based in Berlin.
This article originally appeared on TR724.com in Turkish and has been translated into English by Politurco.