Milestones of the institution
The National Council for the Study of Securitate Archives (Consiliul Naţional pentru Studierea Arhivelor Securităţii – CNSAS) is the official autonomous public authority in Romania, placed under the control of the Romanian Parliament, which administers the archives of the former communist secret police, the Securitate.
CNSAS was established in the year 2000, after prolonged and heated debates that involved the political, as well as the civil society in post-communist Romania.
The issue of opening the Securitate archives in order to document and expose publicly the violation of fundamental human rights perpetrated by the communist secret police emerged immediately after the 1989 regime change. During the first post-communist decade, civil society initiatives proved to be the most radical in this respect. The first attempt at introducing lustration in Romania originated in Timişoara, the city that sparked the 1989 revolution and opened the way towards a regime change in Romania.
Thus, on March 11, 1990 it was issued in Timişoara the “Proclamation of Timişoara,” whose Article 8 requested the banning of all former nomenklatura members, party activists, and officers of the former secret police from running in the next three elections. Article 8 of the “Proclamation of Timişoara” practically initiated the debate over lustration in post-communist Romania.
The former political prisoners organized themselves from the very days of the 1989 revolution into an association of the survivors of Romanian Gulag. The Association of the Former Political Prisoners in Romania (Asociaţia Foştilor Deţinuţi Politici din România – AFDPR) worked closely with opposition political parties and other civil society organizations. Besides defending the rights of the members of the association, it had a very active role in establishing memorials for the victims of the communist terror associated with all major places on the map of Romanian Gulag. Thus, AFDPR’s scope since its establishment has been to deal with the communist past both legally and morally. From a legal point of view, AFDPR’s greatest victory was the passing of the Law 187/1999, or the “Law regarding the access to the personal file and the disclosure of Securitate as political police”, by the Romanian Parliament on December 7, 1999. Known as “Ticu Law,” after its main proponent, former senator of the National Peasant Party and president of AFDPR, Constantin Ticu Dumitrescu, Law 187/1999 was voted only after years of debate.
C.N.S.A.S. - Law 187/1999 - “Law regarding the access to the personal file and the disclosure of Securitate as political police”, published in the Official Journal of Romania, No. 603, on December 9, 1999, pp. 1-5), it granted the Romanian citizens, as well as the foreign nationals that were citizens of Romania after 1945, the right to access their files kept by the Securitate.
Law 187/1999 created for the first time a legal framework for the study of the Securitate archives by any citizen interested in assessing “the political police activities of the former secret police in order to offer to society, as correct as possible, a picture of the communist period.” A totally new institution, placed under the authority of the Romanian Parliament, was established in order to ensure the implementation of Law 187/1999: the National Council for the Study of the Securitate Archives (Consiliul Naţional pentru Studierea Arhivelor Securităţii – CNSAS), which was destined to take over the files of the former secret police from the agencies that took care of them after the 1989 regime change.
Legal Mandate and Mission
From its establishment, the major objectives of CNSAS have always been:
1) to ensure the free access of individuals to their personal files produced by the former Securitate during the period March 1945 to December 1989;
2) to disclose the former agents and informal collaborators, as well as to expose the repressive actions of the former communist secret police in accordance with the rule-of-law principles, and thus to enable lustration; and
3) to develop research and educational activities aiming at disseminating accurate historical information about the repressive actions of the Securitate and their consequences on Romanian society.
Under Law 187/1999, the Board of CNSAS (the Collegium) was empowered to check holders of, and candidates for, public offices and assess whether they were involved in the activities of “the Securitate as political police.” The concept of “political police” (poliţie politică) was defined by Law 187/1999 in order to apply a form of lustration, understood as a vetting of the holders and candidates to public offices based on the archives of the former communist secret police. The principle that has stayed as the basis of Law 187/1999 is that of individual responsibility and not that of collective guilt based on a simple association of an individual with the former Securitate. Thus, the Romanian law focuses on individual deeds and “proof beyond any reasonable doubt” concerning the infringement of fundamental rights and liberties.
Law 187/1999 defined for the very first time the concepts of Collaborator (informant) and respectively Agent (officer) of the former Securitate. The mandate of the institution was to establish if the people subject to the vetting procedure belonged to one of the aforementioned categories. An individual was qualified as an agent or collaborator of the former Securitate if they infringed on the fundamental rights and liberties of others and such acts could be proved on the basis of “proof beyond any reasonable doubt” found in the Securitate files. The act of infringement on the fundamental rights and liberties of others was defined in Law 187/1999 as “political police” (poliţie politică).
After the passing of Law 187/1999, two Governmental Emergency Ordinances were issued in order to enable the CNSAS to fulfil its mission: (1) Governmental Emergency Ordinance (Ordonanţa de Urgenţă a Guvernului României – OUG) No. 149 of November 10, 2005, concerning the extension of CNSAS activity, published in the Official Journal of Romania, No. 1008, November 14, 2005, pp. 7-8; and (2) Governmental Emergency Ordinance (Ordonanţa de Urgenţă a Guvernului României – OUG) No. 16 of February 22, 2006, regarding the amendments to Law 187/1999, published in Official Journal of Romania No. 182, on February 27, 2006, pp. 1-8.
The Emergency Ordinance No. 149 of November 10, 2005, regarding the extension of the CNSAS activity, and the Emergency Ordinance No. 16 of February 22, 2006, regarding the amendments to Law 187/1999 introduced a series of legal regulations that modified the definitions of the terms collaborator, agent, and political police. Through the said Emergency Ordinances, the right to access the personal file has been extended to relatives up to the fourth grade of the file owner; the right to access their Securitate files has been granted to EU and NATO citizens; and the sphere of verifications has been enlarged in the case of Securitate agents and collaborators.
Decision No. 51/2008 of the Constitutional Court of Romania
The Romanian Constitutional Court (Curtea Constituţională a României – CCR) issued Decision No. 51 on January 31, 2008, by which it declared unconstitutional the entire Law 187/1999. The decision was highly contested and commented by some independent scholars and civic activists as another attempt of the “neo-communist camp” to stop a process that finally started to look promising. The sole genuine problem though was the simultaneous function of “prosecutor” and “judge” performed by the CNSAS Collegium, which was empowered by Law 187/1999 not only to search for proofs of collaboration with the Securitate as “political police,” but also to formulate a first judgment on the collaboration of the persons under verification.
Current Legal Framework
The decision of the Romanian Constitutional Court regarding the unconstitutionality of Law 187/1999 posed difficult questions concerning the future of CNSAS. In order to ensure the continuation of the activity of CNSAS, the government, headed at the time by Prime Minister Călin Popescu Tăriceanu, issued an emergency ordinance that created the legal basis for the functioning of the institution: Governmental Emergency Ordinance (Ordonanţa de Urgenţă a Guvernului României – OUG) No. 24 of March 5, 2008, concerning the access to the personal file and disclosure of the Securitate, published in the Official Journal of Romania No. 182 of March 10, 2008, pp. 2-10. The said Emergency Ordinance was completed and modified by Law 293 of November 14, 2008, voted in by the Romanian Parliament and published in Official Journal of Romania No. 800 of November 28, 2008, pp. 1-4. Although the new legal framework led to changes in the activity of the institution, it did not change its mission.
The new legislative framework, i.e., Law 293 of November 14, 2008, led to a modification of the legal status of CNSAS. Thus, the Collegium of CNSAS is no longer entitled to issue decisions that assess the status of a Securitate agent or collaborator for the people subjected to the vetting procedure. Currently, CNSAS gathers through a complex procedure of corroborating relevant information the evidence found in the files of the Securitate in the case of the individuals subjected to the vetting procedure. When the documentation is complete, the Collegium of CNSAS assesses the evidence under the applicable law (Law 293/2008) and decides whether the case is to be brought in front of the Administrative Section of the Bucharest Court of Appeal, which decides upon the person’s status as an agent or collaborator of the former Securitate. For its part, CNSAS has to ensure the publication in the Official Journal of Romania, Part III, of the final Court decisions.
The current law is more restrictive than the previous one (Law 187/1999) with regard to disqualification, but it ultimately allows for more transparency in the process of unmasking former collaborators. It defines the collaboration with the Securitate as those acts that not only violated fundamental rights of individuals, but also “denounced activities or attitudes adverse to the communist state”. This principle, which could be termed as the principle of simultaneity – infringement of fundamental rights and denunciation of anti-regime attitudes and activities – obviously reduces the number of cases that can be brought in front of the Administrative Section of Bucharest Court of Appeal on grounds of collaboration with the Securitate.
The complex procedure of gathering evidence from the files of the former Securitate is carried out by the Investigation Department. This department is in charge with identifying, assessing, and corroborating documents and information in order to establish the real identity of the collaborators and the specific activities and tasks undertaken by the Securitate agents. The Securitate collaborators are mentioned in the documents under their code names and, consequently, the identification of their real name is achieved through a series of specific investigation processes that imply connections between various files. The Securitate agents appear with their real names in the files, except for those who worked for the foreign intelligence structures of the Securitate. In their cases, in order to assess their status as Securitate officers, the Investigation Department of CNSAS has to work closely with the present day intelligence services that possess data regarding their identity and career, and identify documents produced and signed by them.