Do we need lustration?
Lustration—the screening of those holding or aspiring to high-ranking government positions for their collaboration with the previous regime—is considered one of the most important tools to ensure that a new society, a country building a democracy, does not return to its authoritarian past. Lustration has many supporters. And many opponents, fearing that a process intended to improve society could devolve into a witch hunt and widespread human rights violations. Both proponents and opponents of lustration have compelling arguments.
What's more important—restoring rights or punishing the guilty? This is what they say. Farida Kurbangaleeva, a columnist and editor-in-chief of the site Country and World Boris Grozovsky and lawyer, project coordinator "Rehabilitation of Law" Mikhail Benyash.
FARIDA KURBANGALEEVA
Should we conduct lustration after the current Russian regime collapses? What is its purpose anyway?
BORIS GROZOVSKY
In general, I think it makes sense to discuss lustration in the context of another measure, which is typically adopted after totalitarian dictatorships and repressive regimes that violated human rights on a massive scale experience their collapse. Lustration is a more lenient measure. The harsher measure is, in fact, the punishment of the main criminals, the people who usurped power and were directly involved in mass crimes—either carrying them out or giving orders. Authoritarian regimes violate laws and human rights on a massive scale. And lawyers and historians talk about so-called systemic impunity. This isn't just a simple violation of the law, where the right can be restored: one person stole something from another, we can catch them, punish them, and ensure that what was stolen is reimbursed. In the case of authoritarian regimes, the process of legal restoration is disrupted by the crimes committed, which are politically covered up and sanctioned by the authorities themselves. They prevent these crimes from being addressed because they themselves are the main stakeholders, their originators, and beneficiaries. Consequently, the harshest punishments await those who are brought to justice after the collapse of such regimes. This was the case with the Nuremberg Trials in Germany after the fall of fascism, and many other dictatorships and authoritarian regimes have had similar trials.
Lustration, however, doesn't apply to this type of person. Lustration comes from the Latin word for "light," lux, and it essentially means "enlightenment." In the sense that the past becomes explicit and transparent: who worked for whom, who informed on whom, who wrote which denunciations against whom, who decided that such-and-such a person should get 10 years in prison, and such-and-such a person 20 years, and such-and-such should even die in prison.
The most important measure of lustration is not the punishment of individuals, but the opening of archives, a complete disclosure. This has been the subject of considerable debate in Germany and, to a lesser extent, in other post-socialist countries. The second measure of lustration is designed to protect society from people who are in one way or another implicated in these past crimes by virtue of their employment in the intelligence services, their positions in executive or legislative administrative bodies, their positions as judges, their positions in university administrations, their decisions to arrest certain students, their reporting of information about them to the intelligence services, and so on. In other words, lustration is not a punitive measure; it is a measure that, in essence, restores trust in society. If such lustration is carried out, society can be confident that people implicated in such events will no longer be elected to leadership positions, will no longer teach in schools and universities, will no longer be able to work in the media, and so on. I would probably put an end to this and hand the floor over to Mikhail.
FARIDA KURBANGALEEVA
Mikhail, in your opinion, why is lustration necessary?
MIKHAIL BENYASH
To be honest, I don't really know why it's needed. And a good question: what are the goals of those talking about lustration? Because everything I've heard usually boils down to the fact that if you continue the conversation with someone demanding lustration, they'll start talking about hanging those they want to lustrate from lampposts. The overwhelming majority of those who talk about lustration—I'm not saying everyone, but the overwhelming majority—are not pursuing the goal of building a comfortable, law-based society, but rather revanchism and revenge.
FARIDA KURBANGALEEVA
But in that case, how can we avoid a situation where this could actually turn into revanchism and revenge?
MIKHAIL BENYASH
I have read several laws - Lithuania, Czech Republic, Ukraine, Poland, about how lustration was carried out there. And, by the way, I was talking with a lawyer from Ukraine. At one event, I also spoke out strongly against lustration: “Guys, you’ll probably decide what you want to do—hang those who once tormented you, or build a new society.” And after the event, she came up to me, hugged me, and said: “You’re the only one who understands us.” We lived through lustration—for them, it’s more or less fresh, it was in 2014—and we don’t want it anymore. It was terrible, the system was falling apart, and a colossal number of innocent people suffered. Many authoritative people talk to me about lustration, about its necessity, but very rarely does anyone oppose them. Any thesis, any hypothesis, must be questioned and examined, including one that affects the rights and interests of a large number of people.
When people ask me about lustration, my first question is: define it. Without translations, just: what is it? Preferably a definition that will be enacted into law. Because when people start telling me about lustration to one degree or another, I see that they want justice, they want fairness. I want fairness too, I want justice too, but it's called something a little different. It's probably called judicial reform.
I read it recently Dialogues Alexey Navalny и Adam MichnikThey have a section there on lustration—Michnik was against lustration, as was Václav Havel, for example—and they discuss it at length. A year before this conversation, Navalny they put my brother in jail, and it's clear he's hurt, and he's so upset about it. And Mikhnik explains to him that this is being used for political reasons, that it very often leads to revanchism. A court is needed. And Alexei Navalny says: yes, yes, of course, all these laws and lustrations should be enforced by courts of general jurisdiction. I agree with Alexei, he's right, but first, something needs to be done about the courts of general jurisdiction, because what they've become now is terrifying.
FARIDA KURBANGALEEVA
Before that, apparently, something needs to be done with the judges who are now handing down these unjust sentences?
MIKHAIL BENYASH
What should we do with them? Nothing really needs to be done with them. They'll do whatever the law says.
FARIDA KURBANGALEEVA
Okay, Mikhail, wait, let's break this down. You say you're against lustration. Instead, you say we need judicial reform and trials of people suspected of close collaboration with the criminal regime. But how can a court convict such a person if it's made up of judges who once imprisoned people? Bulk, they planted Yashina, Gorinova, Kara-Murza and other political prisoners - is the list very long?
MIKHAIL BENYASH
What I meant was that those people who are currently committing crimes against humanity, and even criminal offenses in general, should be investigated—preferably not under the direction of Alexander Ivanovich Bastrykin—and they should be tried. You're asking how someone who convicted Navalny or Yashin will be tried? I'll tell you: just like everyone else. Seriously. I spent about 20 years in court. Yes, there are terrible judges, and there are terrible judges, but the same judge, being completely immoral, can generally render a just decision. And a good judge can render a terrible decision; it depends on a multitude of circumstances. Yes, there are those whose hands are simply stained with blood, absolutely immoral, terrible types, and, by the way, few people know their names. And that doesn't mean they tried any well-known opposition figures. They're doing absolutely horrific things in the prison colonies: changing the types of punishment or the execution of sentences, sending minors to inhumane prison terms for drug-related offenses, and sending someone to 20 years for a crime against sexual integrity on fabricated charges, even though it's obvious to everyone that it's a fabrication. This needs to be addressed, but it shouldn't be politicized; it should all be handled on an individual basis.
The colossal downside of lustration is that it's not individualized; it lumps everyone together, which leads to the violation of innocent people's rights, leading to their losing jobs, careers, and much more. This creates a time bomb for any reform, and Michnik himself has repeatedly said that this is unacceptable. Society these days is already weak and anxious. And then they plant such a terrible mine of injustice. When people seek justice and instead receive tyranny, it never ends well.
BORIS GROZOVSKY
I categorically disagree with the approach Mikhail advocates here. It seems to me that lustration is in no way driven by a desire for justice. At least not in those countries where this experience proved successful. This included East Germany after the collapse of socialism and, generally speaking, West Germany after the collapse of Nazism. To a lesser extent, Czechoslovakia, and to an even lesser extent, Poland and the Baltic states. The Ukrainian experience was very late and extremely compromising, understandably because many people remained, and lustration was a weapon of political struggle. But that is not the purpose of lustration. Lustration is not revenge, it is not settling scores, absolutely not. People who have committed crimes are not subject to lustration. They are subject to trial and punishment for the crimes they committed. Here we can discuss and debate whether such a trial is necessary, what motivates those who want it, and so on.
Lustration is something entirely different. It's not a punishment. Its sole purpose is to protect the public sphere of a new country, built on entirely different foundations, with different legal mechanisms, different courts, and so on, from allowing people who did certain things in the past to influence the political situation in the future.
Lustration is simply a restriction on where a person has the right to work. Whether they have the right to work in the education system, in the media, in the judicial system, in the broader system of government—legislative and executive—that's all. Neither punishment, nor confiscation, nor imprisonment, nor any kind of lustration are envisaged in either successful or unsuccessful cases.
It's clear why Boris Nikolayevich Yeltsin opposed lustration. This is documented in several memoirs. Because he clearly understood, and spoke about it, that if lustration were carried out, the first person to be lustrated would be himself. Consequently, there were no lustrations in post-Soviet Russia, and under such a system, there could not have been.
The most important step is opening the archives. It must be known who made what decisions, who filed what denunciations against whom, who actually slandered them, and by whose decision the rights of one, another, or a third person, or group of people, were violated. Who made the decisions about arrests and bombings.
FARIDA KURBANGALEEVA
And we can say that it is lustration Is this precisely the preliminary stage necessary for punishing people who committed crimes? You, Boris, are talking about opening archives. Let's say the archives of the FSB, the Russian intelligence services, are opened. During the process, it will become clear that certain people gave certain orders, reported certain things, and facilitated certain arrests. And then, in theory, these people should be punished?
BORIS GROZOVSKY
No, these are two completely different processes. Here we have one of the professional informers. Alexander Ionov, who wrote numerous denunciations of various media outlets and individuals. A large number of criminal cases for "fakes" about the Russian army were initiated based on his documents. The archive is open, revealing the type of denunciations he filed, how many of them—unless, of course, he himself proudly announced it, how many denunciations he filed, and who he filed them against; not everyone would report themselves in this way—and it also shows how these documents were subsequently processed and what decisions were made regarding them.
FARIDA KURBANGALEEVA
Well, shouldn’t he then be punished for ruining and breaking someone’s life?
BORIS GROZOVSKY
No, it wasn't him who broke and ruined us. It was the people who made the decision to initiate criminal proceedings and the judges who delivered the verdict. This hypothetical Alexander Ionov, who writes numerous denunciations, doesn't have any powers by which he could arrest or imprison anyone. There's nothing to punish him for. He can't be subject to criminal prosecution, but he can be subject to lustration. We'll simply prevent such a person from appearing in the public sphere, because we don't want this person, let's say, possessing the gift of eloquence and the ability to lead the public, to end up as a deputy first in a municipal assembly, then a regional one, to create a party, to be elected to parliament, and to win his 10% with the slogan, "Bring Putin Back!" We don't want him to end up on Russian public television somewhere, telling stories about how good life was under Putin, when we could lock up anyone. So that he becomes a university professor in the future.
FARIDA KURBANGALEEVA
But what if we're talking not about informers, but about judges, about the numerous Russian security forces? Let's say the lustration process reveals that they, too, committed some illegal acts. Will they then be held accountable? In this case, lustration is a preliminary step to their subsequent punishment?
BORIS GROZOVSKY
No, it isn't. Again, these are two completely different processes. It all depends on how systematically a given person committed such acts and, relatively speaking, how large-scale they were. There are, for example, such famous judges in the legendary Basmanny courtThe judge may not be a particularly high-ranking figure, but so many of these verdicts have already passed through their hands that the very name of this court and this judge has become a byword. Such a person could be brought to court and punished as an example. But this would be an exemplary punishment for one judge out of thousands who have committed similar acts—the most prominent, the most "serial," the most senior. The rest would simply be subject to lustration, so they could not continue such behavior in the future.
FARIDA KURBANGALEEVA
Mikhail, do you still believe that lustration is not as necessary as we say, or even harmful?
MIKHAIL BENYASH
Of course, it's absolutely harmful. I have many questions, but first I'd like to say this: we know of another institution that isn't a punishment either. It's the institution of foreign agents. It's not a punishment, not a sanction, not a restriction of rights, but in practice, it's a little different. Essentially, the institution of foreign agents is the same lustration, only on the part of the state. The state has created a list of people who are essentially forbidden from doing anything.
I had a very unpleasant time living in Russia when I was a foreign agent. Everything fell apart for me. And I think those who are subjected to lustration will experience a similar situation. They put a black mark on you, you're untouchable. It's terrible.
FARIDA KURBANGALEEVA
Yes, we may have been lustrated by the Russian state in this way, but we were lustrated unfairly, because we didn't do anything illegal or unlawful—we didn't imprison innocent people, we didn't send them away, we didn't lie on television. We didn't commit any crimes at all. But the people we're talking about did all of that. We and they are not the same.
MIKHAIL BENYASH
I've read a lot about the debates over lustration in various countries. In Poland and Hungary, constitutional courts systematically cancelled lustration laws for the very reason that the end result was that the road to mass human rights violations was paved with good intentions. The European Court of Human Rights also took a very negative view of all lustration lawsBecause talking and saying we don't want anything bad, we don't want to punish, it's just a cleansing—that's one thing. But when we get down to specifics, when people get to the point of writing a legal act, it turns out that it's impossible to formulate it in an ideal format, because in any case, it will affect and violate the rights of innocent people. This was the case absolutely everywhere. Then I wanted to say that the example of East Germany isn't very relevant, because when East Germany merged with West Germany, they had a very powerful state apparatus. West Germany, which, in fact, supported the reforming East German state, isn't exactly a pure experiment. Russia won't have a neighbor who will support it.
And now the most important question. Now that lustration has been carried out, it will restrict the right of judges who participated in certain trials—and, by and large, all judges in Russia—to replace them, including professors, police officers, operatives, municipalities, and regional administrations. My question is: who will do the work?
Here we have a court, there are ten judges working there, each of them, undoubtedly, made a decision on Article 20.3.3 of the Code of Administrative Offenses About discrediting the armed forces. This is clearly a political article. Some of them ruled on protest charges, others "locked up" innocent people under criminal charges. Not necessarily Yashin or Navalny; we don't know their names. On formal grounds, all these judges are guilty; they should all be dismissed. Okay, they've been dismissed, but what next?
FARIDA KURBANGALEEVA
Mikhail, do you really believe that Judge Danilkin, whether real or suspended, who handed down criminal sentences, will have the right to continue his work in the "beautiful Russia of the future"?
MIKHAIL BENYASH
A judge doesn't have to be a good person. That's desirable, of course, but not necessary.
FARIDA KURBANGALEEVA
But he violated his professional code. The judge who sentenced to six years He jailed Yevgeniya Berkovich and Svetlana Petriychuk for absolutely nothing. Will he continue to work in the future Russia?
MIKHAIL BENYASH
It's not up to me to decide about the bright Russia of the future, or who will do what in it. That's beyond my competence. I can simply say that I spent most of my career in the courts, and I know what kind of people are there. They go through pretty rigorous filters to work there. Of course, there are some fairly ignorant people among them, but there are no completely stupid ones. Even if someone is stupid, in a year or two they'll be trained, and they'll be able to work more or less adequately. These are professional lawyers, experts to a certain extent. They can be very bad, but the goal isn't to be good. Their goal is to resolve legal disputes correctly. And this guy—what's his name, Danilkin?—and his ilk, when there are no orders from above, will resolve legal disputes completely fairly. That's how it will be. I'm sure of that. In some cases, they won't do this—if, say, they're offered a bribe, then their mistake or unjust decision will be corrected by a higher court.
This is precisely what we should strive for: not looking at the judges as individuals, but thinking about how the system is structured, how the mechanism works. Your words clearly convey a desire for revenge: how could this be? He's a villain, he shouldn't have done this, it's unfair! And we return to the same question I posed at the beginning: what do we want? Justice or the creation of a comfortable society, a state governed by the rule of law? If we want revolutionary justice, then hang people from lampposts. If we want to build a healthy, prosperous, comfortable society, then we must think about how to ensure that the state apparatus, which is rotten, ineffective, and rife with corruption, continues to function smoothly and effectively.
FARIDA KURBANGALEEVA
So if it's rotten, how is this possible? The judges are part of this apparatus; they are just as rotten, ineffective, and corrupt.
MIKHAIL BENYASH
Excellent. We have 10-15 judges—that's the court's composition. All of them are subject to lustration. From formal grounds, we see that all of them were involved in political cases, all of them issued sentences, rulings, and took people into custody. They receive a lustration certificate stating that within 24 hours or three days—it varied in different countries—their powers will be terminated. They're gone, and suddenly, in some district, there's a general jurisdiction court that's not functioning. We rarely think about such things, but they're worth considering. An investigation is underway. The investigator comes to court and says: we've arrested a man—a rapist, a drug dealer who murdered a drug dealer, a member of an organized crime group—and we need to extend his detention. But no one is working in the court, no one is extending the detention, and the criminal goes free. Or they come in for a civil case that brooks no delay: a corporate raid is underway, and again, nothing is done.
Even if we oust just half the courts, the system will be overwhelmed. A country where general jurisdiction courts don't function will be in chaos, I guarantee it. Therefore, I believe that, yes, even if a judge is bad, immoral, and has issued terrible decisions within the framework of the current law, if he or she can currently perform his or her duties and correctly resolve legal disputes, he or she should continue to function. Later, following a lengthy judicial reform, he or she might be replaced. But I would categorically advise against touching general jurisdiction judges. This would create a chain reaction, the consequences of which we can't even imagine.
BORIS GROZOVSKY
There's one point I wanted to counter. Mikhail said that West Germany greatly helped East Germany by lending a shoulder. There's a wonderful book by Evgenia Lyozina. "The 20th Century: Working Through the Past", which describes how lustrations were carried out in various post-socialist countries. It shows that West Germany actually hindered East Germany rather than helped it. Then-West German Chancellor Helmut Kohl, a "peacemaker," had considerable contact with East German politicians before the fall of the Berlin Wall and was strongly opposed to, for example, fully disclosing the archives of the Stasi, the East German secret service. He feared both for himself and for the compromise of his inner circle in the CDU/CSU party. This was an obstacle. And there was strong demand for this from East German politicians, a movement led by Joachim Gauck, best known as the head of the archival system, who later became president of a reunified Germany. The most important slogan of the lustrations is very simple: "Free my file!"
Regarding the question of what people who held certain functions can and cannot do, we somehow focused on judges and the potential collapse that threatens not even the judicial system, but more broadly, the social system, if the courts are overly tightly controlled. I don't think the role of judges, their place in the structure of the Russian political regime, is that significant. The chairmen of the highest courts—the Constitutional Court, the Supreme Court, and perhaps a few of their closest deputies—yes, their role is significant; they interpret the laws, and in a number of cases, these interpretations have allowed for the strengthening of repressive legislation. But rank-and-file judges are cogs in the system. They're called, told what to do, and they do it. Their role isn't such that they think that if this cog is removed, everything will break. They don't make key decisions in Russia; they implement them.
Much more important are the political leadership, the government, the intelligence agencies, and the regional authorities. It's interesting to understand the structure of power, the decision-making mechanisms—who, how, and when exactly decided who should be imprisoned, for how long, who should be poisoned outside, and who should be poisoned in prison. There's still a lot to learn here.
MIKHAIL BENYASH
But this isn't a lustration process. If someone was supposed to be poisoned in prison, that's covered by Article 277 of the Criminal Code. "An attempt on the life of a statesman or public figure"If any decision had to be made at the elections, this is covered by Articles 285 "Abuse of authority" and 286 "Excess of official powers"Why reinvent the wheel when the Criminal Code already exists? Vladimir Putin understands this perfectly well, and much of what they themselves are doing now is covered by the Criminal Code. There's no need to invent something new that would restrict people's rights not because they've done something wrong, but simply because they're, for example, a judge, a member of United Russia, or an electoral commission member. I think this is wrong; it would lead to grave injustice, which the authorities of the bright Russia of the future, many, many years from now, have no moral right to do, because it won't last long after that.
BORIS GROZOVSKY
What's unfair about that? The example with the election commission is a very good one. There's a citizen named Ivanova or Ivanov in the election commission, who, personally—and this was recorded by cameras—stuffed a thousand ballots with ticks in the right places at their polling station, where, say, 5000 people voted. Do we want this same citizen Ivanova to continue working for the same election commission if she can easily stuff 20% of the ballots? I don't think so. Of course, you could say that this citizen is doing what she was told. She was told to add 20% to the actual vote total, so that's what she's doing. And when they tell her, "No, dear lady, don't stuff anything else, let's keep counting honestly, just as we voted," she'll do the same. Let her continue counting the votes honestly for us. I think that's wrong. Simply because there would be no trust in such an electoral system. It would be reasonable for this person to take up something else, so that he would no longer be on the electoral commission. I don't think this is some kind of cruel restriction. There are plenty of other activities to which this person could devote themselves without starving to death and while still being useful to society. But let him no longer engage in this. Isn't that a natural desire?
FARIDA KURBANGALEEVA
And this woman who works at the election commission is most likely a math teacher at some school, teaching children not only how to calculate the function's aspirations, but also something good and kind, moralizing. Should we turn a blind eye to her election-related crimes, given that she's a solid professional, an educator in her field? And should she continue teaching children at school?
MIKHAIL BENYASH
I never once spoke about the need to turn a blind eye to crimes. I said, why should we reinvent the wheel if everything is covered by the Criminal Code? Ballot stuffing is covered by Article 142 of the Criminal Code. "Falsification of electoral documents".
As for how she teaches our children, believe me, I've observed a lot and experienced the stage of wanting to hang them from lampposts, but I've come to some kind of peace; that happened recently. I hated election commission members even more than judges. Yes, I also disagree with the idea that these lying hysterics are teaching our children, and I'll try to make sure my son doesn't go to school there. But this can be resolved through education reform, which is no less important than reform of the judicial system. This needs to be discussed, but it's not about lustration; it's about education reform.
You have to understand who you can say goodbye to and who you can't. For example, with judges, that's obvious. Or with rank-and-file police officers, even with sadistic detectives—there really are sadists out there, I was tortured, I know what it's like. And I'm ready to forgive even those scumbags who beat me while I was shackled in my office, because I understand that the system has to work.
The only people we can really say goodbye to are the entire Supreme and Constitutional Courts. The system as a whole will absorb this. The courts will survive for six months or a year and will be able to function without the Supreme Court. The absence of the Constitutional Court will go unnoticed. But this won't be resolved by lustrations, but simply by repealing the law on the Supreme Court and Federal Constitutional Law No. 1. On the Constitutional Court, the adoption of new laws and a new set of judges. The same applies to the Central Electoral Commission.
Regarding the elections, I had a dispute with my colleagues from "Vote"I don't know if you've had any experience observing elections. People there act as if they're possessed by a demon. When I said, "Those monsters! Put those who stuff the ballots in jail!" my colleague replied, "You hate them with all your might, of course, but believe me, as soon as the government changes, these hysterical women who stuffed the ballots and behaved so terribly will count the votes just as calmly. As soon as the pressure from the education department, the municipalities, and the school principal disappears, they'll simply work according to instructions. The hysteria is largely due to the fact that they're used to living with the feeling that they're respected teachers, loved by children, respected by parents, and then they're forced to do obviously fraudulent, terrible things. They're trying to calm themselves down this way. I'm not saying they'll work perfectly, that there won't be any falsifications, that they'll count everything efficiently, but overall, the system will improve, and elections will become much fairer. And if there are observers..." they won't beat you up As they were leaving the election commission, like in Kuban in 2021, two observers were beaten, one had his ribs broken, another's arm broken, and a third—they came to the election commission, grabbed him by the arms and legs, dragged him out, and threw him out. And no criminal case was opened. If there isn't such colossal, hysterical pressure from the executive branch in an attempt to change the election results, none of this will happen either.
BORIS GROZOVSKY
I think there are some contradictions, Mikhail. You say these people will start counting normally if there's no pressure on them, but on the other hand, you say that election fraud is a specific criminal offense, so let's judge it under that statute. Let's clarify: let's say we had elections in, say, 2018 or 2012, the results of which we suspect were falsified. Can you give an approximate estimate of how many people could be prosecuted for falsifying such-and-such an election under this specific offense?
MIKHAIL BENYASH
In 2018? I'd answer: zero. No one can be held accountable because the statute of limitations has expired. How many people were involved in the crime? We're talking about order. We multiply the number of election commissions by three, since the main perpetrators of fraud are the chairperson, secretary, and deputy chairperson. There are about a million people working in the election commission system. That means we're talking about 100-200 people. Most likely, there are more, because there are also municipal employees, education department employees who are actively involved in this process, local self-government bodies, community activists, and so on. So, the lower limit is 300 people.
BORIS GROZOVSKY
There's a trick to extending deadlines, which happens after the collapse of authoritarian regimes: a special law is passed extending deadlines precisely so that crimes for which the statute of limitations is running out can be dealt with. Let's assume this procedural problem is resolved. Maybe Resolved. But you're not going to say there should be 300 criminal cases? That's a bit much for just one election event.
MIKHAIL BENYASH
I never said that, God forbid. Moreover, this isn't a procedural issue. It's a problem of basic human rights. Article 7 The European Convention for the Protection of Human Rights and Fundamental Freedoms states that this problem cannot be resolved: no one can be tried under a law that was not in force at the time the crime occurred. Therefore, Russian society must understand and accept that the majority of those responsible for these atrocities will be forgiven. Preferably, this should not be in the form of "I was overlooked, and I will continue my atrocities." No, it must be conscious: yes, we understand that you did this, that you were involved, but you received an act of forgiveness—and the first and last warning. Retroactive application of criminal law is unacceptable. And here we return once again to what we want—revenge, our own understanding of justice, or the establishment of a state governed by the rule of law. If we want to establish a state governed by the rule of law, then this is a priori impossible. It is impossible—and that's all there is to it.
If we, for the sake of our “wants”, for the sake of revenge, say that we 78 article If we were to slightly amend the Criminal Code, retroactively increase the length of criminal liability, we would destroy the rules with these exceptions. Just as President Yeltsin deviated from the rule once in 1993, and again in 1996—for the greater good, of course—he destroyed the rule with these exceptions. And the law is perhaps the highest value a state possesses. Not oil, not gas, not forests, not colossal lands, but the law itself—effective, functioning law, before which everyone is equal. We must think about building precisely this kind of society.
Based on this, we must tell ourselves that we obey the law. We all obey the same rules. Yes, we can talk about how these rules need to be changed to prevent the crimes committed during those dark 20 years from happening again, but we will not give them retroactive effect. We must understand once again: this is what awaits our country—a state of understanding, acceptance, and forgiveness. And ultimately, forgiveness even for those who committed quite heinous crimes. Otherwise, we are not faced with building a just, effective, and comfortable state; we could turn Russia into a second Central African Republic. That's something we would hate to see happen.
FARIDA KURBANGALEEVA
Don't you think it was precisely the concept, acceptance, and forgiveness that replaced the necessary lustrations after the collapse of the Soviet Union that led to us now finding ourselves back in this spiral of mass repression, political prisoners, and dictatorship? Precisely because there was no lustration back then.
MIKHAIL BENYASH
I'll answer: there was no understanding, no acceptance, no forgiveness. We haven't gone through the process of understanding and forgiveness. We haven't completed de-Stalinization, and the personality cult hasn't been debunked. The FSB and KGB archives from before 1991 haven't been opened. That is, the people don't fully understand what happened then. I'm convinced that they absolutely must be opened so that the people understand the crimes that were committed and that they must absolutely not be allowed to happen again. Understanding and forgiveness are yet to come.
We don't need lustrations; we need the law. It's being violated, distorted, and torn apart like a hundred rabid hyenas. But we need the law restored. And if, for the sake of our future, we have to renounce revenge, we must renounce revenge, because the future is more important than revenge. If, for the sake of the law, for the sake of the phenomenon of law, we must forgive a certain number of people, we must forgive them, because it's in the past. We can't rewind, we can't bring back the years spent in prison, we can't bring back those who have already been killed. Yes, we must know the perpetrators of these crimes—who's arguing? But this doesn't mean we should restrict their rights based on their membership in a certain social group. No.
I really liked the Lithuanian experience. When Lithuania was in its transition period, they said that all the KGB agents they feared had the right to come secretly, testify, and confess to being agents, after which this information would be classified. No one would touch them; they would go on with their lives. But! If this person decides, for example, to run for president, for the Seimas, for mayor, or to work in a ministry, this information is subject to public disclosure. And then the voter makes the decision. The same applies if they lie. These testimonies are compared with each other. And if the lie is exposed—okay, my friend: the media reports that you testified against yourself. This is a very cool method, I think. And it could lead to the same kind of reconciliation.
For those involved in the countless crimes of the Putin regime, a separate law could be enacted allowing pardons for certain offenses if the person has fully testified. It would all be classified. Nothing in your life changes, you continue working as usual, but if you're a judge, you don't have the right to apply for the position of deputy court president or court president, because as soon as you submit such an application, a query is sent to the database: did such-and-such a judge appear? Yes, he did. It's made public, and we all know who they are, what kind of person they are, and so on. Across all branches of the executive branch.
The issue of so-called lustration—I repeat, I am against it—should be decided not by the new government, the new elite, but by the voters. That's all. Let the voters decide. That's the right thing to do.
BORIS GROZOVSKY
I think we've had a very revealing debate. Essentially, it echoes conversations, debates, and dialogues that Spain after Franco, Germany twice—after the collapse of fascism and after the fall of communism—and many other countries experienced. Indeed, Mikhail and I have no disagreements about our goals. But we do disagree about where to place the emphasis. Should the past be drawn to an end, and, as Mikhail says, forgiven, forgotten, set aside, so that these disagreements don't hinder society's progress? There's another position, which, without questioning our shared goals—that we must achieve a state with the rule of law—emphasizes that some things cannot be forgotten or forgiven. And that trust in the public sphere, trust in politics, must be restored. And where will that trust come from if the same people remain?
It seems to me that the main motivation of those who, like me, advocate harsher measures lies precisely in this. How can I trust the police, or the law enforcement system as a whole, if I know that the same sadists who beat Mikhail are there? How can I complain about my neighbor who listens to loud music if I think that if I complain, he'll end up at the police station, in the hands of these sadists, who might beat him to death within three hours? Can a sadistic police officer quickly change his ways, stop being a sadist, and deal with this neighbor who's keeping me awake the right way, rather than the way he's accustomed to over his 10 or 20 years of service in the police force?
Different societies address the issue of trust differently. Some find it easier to draw a line, as was done in Spain, where no one pursued anyone, but it took a very long time to restore rights. Other societies find it easier to remove these people, move them, or relocate them to other positions where they don't pose a threat to the system of public trust. These are different options, and there will be much debate about them going forward.
Sketch of the Future – is a joint podcast of the “NotMoscow Speaks” projects, Radio Sakharov и Country and World
