Saturday, February 18, 2012

My Reply To NYT’s Biased Report on Macedonian Lustration

On January 24, 2012 the New York Times online edition published the article Macedonia Political ‘Cleansing’ Faces Court Test, authored by a freelance reporter stationed in Istanbul, Turkey, named Matthew Brunwasser. Despite our Committee’s month-long attempts pointing out the one-sided and superficial nature of the content of the article, there have been no tangible efforts by the New York Times to follow up the article with a more in-depth report. In addition, our sources from Macedonia tell not to hope for a change of the situation, since Mr. Brunwasser maintains liaison with Vladimir Milčin, not only an opponent of lustration, but also a man with much to lose from the implementation of this process. We are left with no other resort, but to attempt to give the world the other side of the story, despite out considerable disadvantage. Unfortunately, the truth seems to not be among “all the news fit that's to print!”

Lustration’s Greatest Opponent is the Government

The Republic of Macedonia is not Groundhog Day’s Punxsutawney, although it might as well be. The New Year, same as the old, has brought a new defeat for the Lustration Act at the hands of the country’s Constitutional Court. While this act was still a bill, on January 19, 2011, our Committee’s president wrote:

The newly proposed lustration bill put forth by VMRO-DPMNE is just another effort of the governing party to manipulate the public. The text of the new bill betrays a desperate attempt at buying time, which will be spent, as usual, at accomplishing nothing; since the new bill is practically a carbon-copy of the present Act (which had its most important provisions concerning the post-Yugoslavia period declared unconstitutional by the Court). The adoption of the proposed bill into law by Parliament would mean that the new Act will be met with precisely the same fate that befell its predecessor. (“The Key to What We Call ‘Lustration’” Jordan Petrovski)

The course of the month saw this “prophesy” come true, when the Constitutional Court of the Republic of Macedonia (CCRM) disclosed its opinion on the constitutionality of the act’s provisions regarding the post-Communist era. The Court was asked to opine following a challenge put forth by a group closely affiliated with the Soros funded Open Societies Foundation – Macedonia. The CCRM predictably repeated its opinion regarding the more-or-less same provisions of the same act a half a year prior. The explanation given by the CCRM declared that since the Constitution of the Republic of Macedonia (adopted on November 17, 1991), grants a series of liberal rights and freedoms to the citizens of the country—unlike the Constitutions of the Socialist Republic of Macedonia (SRM) and Socialist Federal Republic of Yugoslavia (SFRY) which governed the land prior to this one and called for political and ideological Singularity of the State—conditions for the persecution of persons for “political or ideological reasons” did not exist. Therefore, thanks to the provisions in the new Constitution, such systematic persecution was impossible. In cases where there may have been abuses of power by certain administrators, the CCRM’s argument goes on, the new Constitution grants the rights to citizens to take those administrators to civil court and demand satisfaction. In other words, the CCRM’s message is that since the Constitution grants certain liberties on paper, those liberties are as good as real, despite extensive evidence to the contrary. The members of Macedonia’s highest court overlook the fact that the rights granted by constitutions are merely expressions of our desires for how our society ought to function; but that substantial and earnest checks on the work of government agencies are necessary for these liberties to escape the world of abstract ideas, and join the realm of what is tangible. If the CCRM’s reasoning was right, and all that was necessary for something to be materialized were to wish it, there would be no want. Alas, deeds are what counts in this world; and since this is so, we are wise to look at the deeds of the Ministry of Internal Affairs of Macedonia (MIAM) since the adoption of the new Constitution.

The CCRM’s disclosed opinion (endorsement is expected for early Spring) indicates that the nine judges who sit on the bench failed to take into consideration some very compelling evidence, such as the two dossiers that have been publically examined in detail by our Committee. For instance, had the judges of the CCRM looked at dossier “PT ‘CRNI,’” (“PT” = Preliminary Treatment) they would have had the chance to see that an agency operating under the governance of the MIAM, known as the Directorate for Security and Counterintelligence (DSC) or alternatively as the State Security Service (SSS), operated under Governing Ordinances which were in accordance with the provisions set out in the Constitutions of SRM and SFRY, such as: “Article 24 of the Foundations of the System of State Security Act ("Official Journal of SFRY" [the Socialist Federal Republic of Yugoslavia] No. 15/84)”[i] and Article 16 of the Internal Affairs Act ("Official Journal of SRM" [the Socialist Republic of Macedonia] No. 37/87)[ii], as well as many similar provisions, until October 31, 1995; when new Governing Ordinances for the Operation of the Agency were adopted, but which, if the deeds of the DSC are anything to judge by, clearly did not abide by the rules of the new Constitution.
Before the adoption of the new Governing Ordinances of the DSC, as well as after, the agency employed the same “measures and activities,” such as: “OST Measure Secret Control of a Telephone Number and Other Telecommunication Devices”[iii], without prior obtaining a court warrant—contrary to Articles 17 and 26 of the Constitution[iv]; “application of the measure Tailing When the Subject Travels Within the Country”[v]; “application of the measure Tailing When the Subject Travels Abroad”[vi]—in violation of Articles 25 and 27; “Conduct of an Informative Conversation,” whereby the person being interviewed—a suspect, a collaborator, or a by stander—is not formally invited to the DSC’s offices for questioning, nor do they have an attorney present[vii]—contrary to Article 12; as well as a number of other similar practices. Had the judges inspected “Form No.9” (cover page) of dossier “PT ‘DESTRUKTIVEC’” they would have noticed that persons were entered into Preliminary Treatment based on “political and ideological reasons”—a violation of Articles 16 and 20—as late as may 1996, long after the adoption of the new Constitution and substantially long after the adoption of the new Governing Ordinances of the DSC. While no person has approached our Committee with a more recent dossier, there is no reason to believe that this practice has not resumed. Had the judges examined Operative Memo # 1730, dated December 12, 1995, of dossier “PT ‘CRNI’” they would have gained insight into the mentality of the agents of the DSC when reading that they intend to “select and arrive at one or two other persons which to win over to [their] side for further use toward [the Subject].”

Similarly, if the CCRM, in its consideration of the controversial provisions of the Lustration Act, had studied the “Proposal to Implement the Measure Secret Control of a Telephone Number…” submitted by the Regional Department of the State Security Service to its Skopje headquarters, as well as the returned “Adjudication,” they would have had the chance to perceive the open violation of the principle of presumption of innocence, embedded in Articles 12 and 13 of the Constitution. Namely, in the “Proposal” the Operative Worker justifies the need for an application of the measure because “[t]he findings and information that the State Security Service has at its disposal indicate that Petrovski Jordan is engaged…”[viii] In its reply Headquarters, despite the absence of further proof, decided to drop the word “indicate”, and concluded “[b]ased on the information and Justification presented in Proposal (evidentiary no. 308 from 13.Arpil.1993), approved by the Undersecretary of the SDB [State Security Service], it has been found that the person Petrovski Jordan is engaged in activities…”[ix] The suspects observed by the DSC were never taken to court where they could give their explanation to the “findings and information that the DSC [had] at its disposal” concerning them. Nevertheless “the measure of Preliminary Treatment (PT) [was] administered toward [them] with the purpose of following, documenting, discovering and disrupting [their] extreme and anti-Constitutional activities.”[x] (Emphasis added) Had the judges of the CCRM completed this examination, they would have formed a clear picture of a systematic conduct in violation of the Constitutional order of the Republic of Macedonia.

At the same time there is one more very important issue to take notice of. Namely, Article 53 of the Constitution of the Republic of Macedonia states:

Laws and other regulations are published before they come into force.
Laws and other regulations are published in 'The Official Gazette of the Republic of Macedonia' at most seven days after the day of their adoption.[iv]

However, the Governing Ordinances of the DSC were published in an irregular, confidential, edition of the Gazette, used only for inner-governmental communication, known as “Special Journal.” A close examination of the Constitution of RM demonstrates that Macedonia’s supreme law does not provide for a “special journal” where the government can publish all that it wishes to keep from the public’s eyes. The fact that the government did so, means that the DSC was governed by ordinances whose mere adoption was contrary to the way prescribed by the Constitution. The provision mandating publication of laws and ordinances has at its root the spirit of transparency of government; while from a practical point of view a person cannot be accused, much less found guilty of breaking a law that s/he had no way of knowing existed. The manner in which the DSC conducted itself betrays a key fact about it: the DSC had no intention of bringing suspects to the attention of the Public Prosecutor who would remove these allegedly dangerous individuals from Macedonia’s streets by the means provided by the rule of law; the DSC only had as its purpose the de facto subordination of the civilian population.

Furthermore, this opinion-to-be-decision of the CCRM unquestionably violates the Court’s Legal Basis, which declare:

The essence of [the] function [of the Constitutional Court] is the essence of the constitutionality and legality and the rule of law, implying that there is no higher constitution that the Constitution and there in no higher law that the law; no one has more power than the one delegated by the Constitution and the laws, no one should tolerate violence upon one’s personality; every person has the right to exercise the widely accepted and recognized freedoms and rights; no one has the right to abuse those freedoms and rights, and every person is obliged to discharge one’s duties and responsibilities.[xi] (Emphasis added)

To be sure, the choice of language found in the above excerpt destroys the proposed defense of the DSC’s agents and their superiors within the Ministry that they were simply following orders. As employees of a taxpayer funded agency assigned to protect the Constitutional order of the country, the DSC’s Operative Workers would have been fully aware of the violations they were committing every time they conducted themselves contrary to the prescriptions outlined by the Constitution. Their duty was to disobey any such order. Furthermore, their duty was to step forward and uncover the systematic civil rights violations being demanded by their superiors—for the purpose of wiping out the political opposition[xii]. However, instead of whistle-blowing, the agents busied themselves by threatening persons whom the DSC was trying to “win over” by “[pointing] out the consequences which would befall [them] in case [they] exposed our interest to [their Subjects].”[xiii] The wording in the Legal Basis and Status of the CCRM leaves no doubt that, apart from the persons that carried out the actions, accountability is to be sought from the persons responsible for the adoption of the policies of the DSC—those staffing the Government when these Ordinances were ap

It is, therefore, illogical that the CCRM has opined that demanding accountability from persistent violators of the Constitution—in a manner that materially violated innocent individuals’ Constitutional rights—by means of Lustration is unconstitutional. The legal precedent set by the Court suggests that thieves will no longer be sent to prison, since such a punishment could prevent them from enjoying the spoils of their theft![Image: scan0539-1.jpg]
However, the Constitutional Court of Macedonia is only one violator in this instance: the one that is seen. The ones that are not seen are the other two branches of government: the legislative and executive. While the judicial branch is reputed to be under the influence of the opposition Social-democratic Union, the other two branches are under the firm control of Prime Minister Gruevski’s VMRO-DPMNE. In the lustration charade, this party has been playing the role of its proponent and “blind supporter.” Yet, the bills that it presented which ultimately became law completely missed the sort of justification provided in this article, despite the vastly greater resources it has at disposal. After all, this party should be the champion of lustration because its members and supporters were the targets of the DSC’s persecution for “political and ideological reasons”—that much is clear from even the most superficial examination of any given dossier from the post-1991 era. More so, it is spelled out in plain language in an exchange in dossier “PT ‘CRNI’”. Namely, when an informant retells the rant of a person under the DSC’s observation (Spasovski) she quotes him as saying “I have a person inside the State Security Service who informs me about everything that is planned and everything that is being carried out against us in the VMRO [-DPMNE].” To this, rather than deny conspiracy against VMRO-DPMNE, the Operative Worker replies in his “Operative Commentary” that he instructed his Source “to work on confirming the finding about Spasovski's connection within the [the Department], that informed him about the measures and activities which State Security Service has been taking towards them, and their discovery.”[xiv]

In addition, the Rules of Procedure of the CCRM gave the Government an opportunity to make up for any shortcomings in the text of the Act by defending it during the Court’s deliberations. Article 13 of said Rules explains that “the submitter of the initiative and the legislator of the denied act, are participants in the procedure in front of the Constitutional court.”[xv] (Emphasis added) Yet, it obviously failed to make the proper case. The Legislator also failed to explain to the Court that the office Public Prosecutor, whose mandate demands it commences proceedings upon a submitted Proposal for Criminal Procedure to the office, declined to do so on the occasions when both Jordan Petrovski (PT “Crni”) and Blažo Stojanoski (PT “DESTRUKTIVEC”) submitted such Proposals under the excuse that the statute of limitations had expired. No investigation into the work of the DSC by the Public Prosecutor’s office has ever taken place. Yet, the Government failed to bring any of these notions to the light of the Court and make the case for the necessity of a special commission to deal with the systematic violation of human rights that was conducted by the Ministry of Internal Affairs for the better part of the 1990s.

One is left with little doubt that the Government has just as little willingness to demand accountability from those responsible for the flagrant violation of Macedonian law. Perhaps the DSC was indeed successful in its effort to “select and arrive at one or two other persons which to win over to [their] side.”

Committee for the Democratization of the Republic of Macedonia
February 18, 2012
St. Catharines, ON

[iii] “PT ‘DESTRUKTIVEC’” Operative Memo # 114/7; date February 02, 1997
[iv] EN/Legal Acts/Constitution
[v] “PT ‘DESTRUKTIVEC’” Operative Memo # 102; date February 24, 1997
[vii] “PT ‘CRNI’” Operative Memo # 1746; date December 22, 1995
[x] “PT ‘DESTRUKTIVEC’” Operative Memo (“Proposal”) # 274; date May 08, 1996
[xi] EN/About Us/Legal basis and status
[xii] “PT ‘CRNI’” Operative Memo # 970; date December 12, 1994
[xiii] “PT ‘CRNI’” Operative Memo # 688; date September 28, 1993
[xiv] “PT ‘CRNI’” Operative Memo # 970; date December 12, 1994
[xv] EN/Legal Acts/Rules of Procedures

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