CYIL 2010

ALBANIAN LUSTRATION ACT, ITS CONSTITUTIONAL AND INTERNATIONAL LAW … a která nikoliv. Zároveň se článek zabývá i ústavněprávními otázkami a rozebírán je zejména způsob, jakým byl zákon přijat. Vzhledem k tomu, že lustrační zákon byl v Albánii přijat jako běžný zákon, zabývá se autor tím, zda a do jaké míry respektují jeho jednotlivá ustanovení obecný ústavněprávní rámec. Key words: lustration Act, European Convention for Human Rights, European Court of Human Rights, general legal principles, decommunization. On the author: JUDr. Vladimír Balaš, CSc. (*1959) is a Czech lawyer, currently teaching law at Charles University in Prague. Prior to his present position he taught law at the University of Western Bohemia in Pilsen, where he served as dean in 1993 1999, and headed the Institute of State and Law of the Academy of Sciences of the Czech Republic. Mr. Balaš specializes in public international law and comparative constitutional law, and has extensive experience in the theory and practice of international economic law and settlement of international investment disputes. Introduction A new political order replacing a totalitarian dictatorship inevitably faces numerous challenges. One of them is the question how to deal with the totalitarian past. There are many options in between drawing a thick line behind the past and a thorough and radical handling of the issue. The lenient as well as radical approaches all have their advocates. There is no general agreement as to the absolute necessity of social catharsis in the process of transition from the totalitarian rule to democracy. It is misleading to ask whether the new political order should deal with the former leadership or, instead, focus on the future. One can hardly convince people about the good intentions for the future without a meticulous dealing with the past The expression “retroactive justice” that some political scientists use in connection with lustration laws is also inappropriate. These laws are not intended to punish those who were involved or actively assisted in the atrocities committed by the totalitarian regime. Their main purpose is to restore and build confidence in justice and law, including the democratic institutions and the independent judiciary, to safeguard the democratic development and prevent the restoration of the totalitarian rule. Another equally important purpose is to ensure that the country honours its commitments related to collective defence and cooperation with other democratic countries. To ensure that the legislation achieves all these aims, it is necessary to resist any temptation to use lustrations and similar mechanisms to political ends. There is no absolute guarantee against that; however, what can be done is to design a lustration law that fulfils their purpose while meeting the basic applicable requirements of fundamental international treaties and while providing all involved parties with the basic guarantees of due process. The requirements applicable to lustration laws fall into three groups: formal legal (the law should not violate international commitments and constitutional legislation), substantive legal requirements of fair and reasonable legislation, and procedural ones.

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