Lustration in Ukraine: expert opinion

Experts’ opinion on the abuse of human rights standards by
the Law of Ukraine on Government Cleansing
(the Law on Lustration)

Lustration (or government / authorities cleansing) itself does not pose a threat to the security of the rights and freedoms of a human and citizen. The Council of Europe has stressed on this repeatedly. However, there is a question whether lustration is always the best option from the human rights perspective and where there are other alternatives.

It is necessary to maintain a balance between supporting democracy, public interest and respect for the individual rights of every person when conducting the lustration campaign.

Although lustration is often considered to be a mechanism to cleanse the society, accelerate the change of elites, protect national interests of Ukraine, keep away from state apparatus those people whose actions undermined the fundamental principles of the Ukrainian state, etc., it is always disregarded that according to the Council of Europe, lustration can never be conducted flawlessly. In other words, the method chosen to safeguard democracy and human rights in its essence does not fully meet those democratic principles which it deems to protect.

In the case of Ukraine, which has been shaping its statehood for more than two decades since its independence, it is inappropriate to consider it a ‘newly-emerged democracy’ with the legal system unable to properly respond to existing challenges. Moreover, lustration is mistakenly considered a universal means of defending democracy and European values; in this context two crucial points should be raised:

  • Lustration alone can not ensure democracy strengthening; it should be one of the components of the comprehensive process, which includes reforming the system of justice and combating corruption. Otherwise, lustration then risks becoming a political instrument to oppress opponents.
  • Lustration should be based on recognized international standards and the rule of law; otherwise, it may turn from the mechanism of the protection of democracy into the means of further eroding of the democratic foundations of a state.

Unfortunately, both of these points have been to some extent neglected in the course of conducting of the process of lustration in Ukraine triggered by the Law of Ukraine “On Government cleansing” and “On restoring trust in the Judiciary of Ukraine.”

Lustration with respect for the rights and freedoms

The detailed analysis of the Ukrainian legislation shows that only amendments to a number of provisions can ensure the lustration at a level that would guarantee proper respect for human rights and freedoms. It is necessary to distinguish the following legal provisions that require amendments:

1. Article 1, paragraph 2 of the Law of Ukraine “On Government cleansing” enumerates the principles on which the lustration is based:

Government cleansing (lustration) … is governed by the following general principles: the rule of law and lawfulness, openness, transparency and public accessibility, presumption of innocence, individual liability, and guarantee of the right to defense.

This list of principles appears to be broad enough and fully in line with the European guidelines, however, it still seems to be rather declaratory, and it is not reflected in other articles of the law. A detailed analysis of the content of each of the principles is necessary to avoid their existence only on paper.

2. One of the issues governed by the Law on Lustration is the exclusion of persons associated with the communist regime of the USSR. In particular, Article 3, paragraph 4 of the Law stipulates:

The ban of Article 1, paragraph 3 shall be imposed on:

1) Individuals who occupied high positions in the Communist Party, Communist Party of the other former Soviet Union republics during the Soviet period or starting from the post of district committee secretary and above;

2) Individuals who occupied high positions management positions ranging from office of Secretary of the LKSMU and above;

3) Individuals who worked as employees or covert agents of the KGB, the KGB of USSR, the KGB of other union republics of the former USSR, the Central Intelligence Agency of the Ministry of Defense, graduated from higher educational establishments of the KGB (except for the technical specialties).

There is no doubt that the communist regime was marked by serious violations of human rights and by a general lack of freedom and democracy. This was explicitly confirmed in the Resolution 1481 (2006) of the Parliamentary Assembly of the Council of Europe. In particular, the second paragraph of the resolution enshrines:

The totalitarian communist regimes which ruled in central and Eastern Europe in the last century, and which are still in power in several countries in the world, have been, without exception, characterized by massive violations of human rights. The violations have differed depending on the culture, country and the historical period and have included individual and collective assassinations and executions, death in concentration camps, starvation, deportations, torture, slave labor and other forms of mass physical terror, persecution on ethnic or religious grounds, violation of freedom of conscience, thought and expression, of freedom of the press, and also lack of political pluralism.

At the same time, the above norms of the Law on Lustration can be regarded as belated. The Parliamentary Assembly’s Guidelines introduce a general suggestion that lustration measures should preferably end in all ex-communist states no later than on 31 December 1999. This has to do with the threat which is posed by such former regimes.

As the Venice Commission stated in its amicus curiae opinion on Albania, activities well in the past will regularly not constitute conclusive evidence for a person’s current attitude or even his/her future. The suggested approach is confirmed by the practice of the European Court of Human Rights. Therefore, Ukraine should give cogent reasons to justify enacting a new lustration law only now; in fact, one can hardly find such reasons. Indeed, after so many years since the declaration of independence, the possibility of lawful lustration of individuals associated with the Communist regime, without violating the rights and freedoms is unlikely.

3. The issue of lustration of persons holding positions during Viktor Yanukovych’s rule (most of the provisions of the Law apply to the regime of V. Yanukovych) is somewhat questionable.

In particular, in its interim opinion, the Venice Commission noted that wide-ranging lustration measures in respect of this specific period would imply a questioning of the actual functioning of the constitutional and legal framework of Ukraine as a democratic state governed by the rule of law.

To avoid this lustration has to be complemented by other means of ensuring justice and fostering good governance and the rule of law, such as combating corruption and bringing perpetrators of crimes to responsibility for serious crimes. Lustration might serve as a complement to these other means, but it can never replace them (Article 4, paragraph 10 in particular):

When rendering judgments in the cases in respect of persons referred to in paragraphs 5-7 of this Article, the courts impose ban provided for by Article 1, paragraph 4 of this Law, as the main or additional penalization under the provisions of the Criminal Code of Ukraine. In the case of a ban provided for in Article 1, paragraph 4 of this law as an additional sanction the period of such disqualification will amount to 5 years.

It is important to emphasize that lustration in light of the European standards is not a punishment in its nature. The Venice Commission does not find that lustration measures are the most appropriate means to combat corruption.

All European standards emphasize the need to differentiate between the various functions and goals of lustration; on the one hand, it consists, above all, in the protection of democracy, while the secondary goal thereof is subordinated to the realization of the primary goal – individual penalization of persons whose guilt has been properly proved. The violation of this principle lies even in the general concept of the Law of Ukraine “On Government cleansing.” One should agree with the opinion of the Venice Commission that “Lustration on the one hand and anti-corruption measures, on the other hand, though both legitimate, are not identical in nature. They are also not subject to the same international legal standards and require different means to fight them.”

4. Article 1, paragraphs 3 and 4 of the Law on Lustration impose a ban from public office (to hold certain positions) of 5 and 10 years:

3. During 10 years since the enactment of the law positions under lustration may not be occupied by individuals listed in Article 3, paragraphs 1, 2, 4 and 8 and individuals who did not file statements as required by Article 4 paragraph 1.

4. Article 3 (paragraphs 3, 5-7) of the Lustration Law lists the criteria for lustration, imposing a ban from public office (i.e. from the positions listed in Article 2) of five years from the date of entry into force of a court decision.

This period of time may be considered too long as the Guidelines on Lustration provide that “disqualification for office based on lustration should not be longer than five years since the capacity for positive change in an individual’s attitude and habits should not be underestimated.”

Furthermore, the said provisions of the law violate the principle of individual approach (because the same period of time is applied to all individuals without differentiation) and there should be a gradual reduction of the term of lustration. Moreover, the 10-year period runs “for ten years after the Law takes effect” (paragraph 3), that is, until October 2024, the 5-year period runs “for five years after a corresponding court judgment takes effect” (paragraph 4). As there is no, and can hardly be, a deadline set for the court procedures relating to the recent events in Ukraine to end by, and since these procedures may go on for years, the lustration process is potentially open-ended, which violates human rights and the very goal of the lustration, which deems to protect a developing democracy.

European Court of Human Rights held in the Ždanoka case that the national authorities “must keep the statutory restriction under constant review, with a view to bringing it to an early end.” No such procedure, however, is foreseen in the Law.

5. Article 2 of the Law lists positions with criteria for lustration.

Pursuant to the Guidelines, “lustration should be limited to positions in which there is good reason to believe that the subject would pose a significant danger to human rights or democracy”. Obviously, the list of Article 2, which includes administrative and political positions, is too wide.

6. Article 3 of the Law enumerates criteria on which government cleansing (lustration) is to be based and poses a potential threat to human rights violations for three reasons.

First of all, some of its provisions do not meet the principle of legal certainty.

Second, a number of provisions deem to substitute individual approach by collective liability (i.e., the mere fact of having occupied the specific position is considered sufficient to prove the guilt of a person). Furthermore, under the Guidelines, lustration should only be directed against persons who played an important role in perpetrating serious human rights violations or who occupied a senior position in an organization responsible for serious human rights violations; no one can be subject to lustration solely for personal opinions or beliefs; and conscious collaborators can be lustrated only if their actions actually harmed others and they knew or should have known that this would be the case.

The analysis of Article 3 shows that there are individuals who did not engage in any violations of human rights and did not take or support any anti-democratic measures without an opportunity to prove it fall under lustration.

7. Another issue regarding the content of Article 3 is an overlap between the Lustration Law and the Law on the Restoration of the Trust in the Judiciary.

The Venice Commission finds this overlap unacceptable. Judicial reform is much more complex, and it cannot cover the issue of lustration. This is contrary to Article 61 of the Constitution, which provides:

For one and the same offense, no one shall be brought to legal liability of the same type twice. The legal liability of a person is of an individual character.

Due to existing of two lustration laws with the not established ratio between them, today it is possible to apply individual lustration measures on different legal grounds for a one and the same act.

8. Article 5 of the Law of Ukraine “On Government cleansing” designates the Minister of Justice as the “agency authorized to ensure the screening provided for in this law”.

Thus, this provision violates the principle of independence, according to which the state has created a separate body equidistant from all branches of the government to oversee the process of lustration. For example, in 1996, the Guidelines stated “lustration should be administered by a specifically created independent commission of distinguished citizens nominated by the head of state, and approved by parliament.”

9. The provisions of Ukrainian law provide for an appeal to a court of law.

However, the Law does not expressly stipulate a) procedural guarantees, b) access to the lustration file c) suspension of administrative procedures at the trial. Accordingly, it violates a number of human rights: starting with the right to a fair trial and ending with the right to the protection of dignity.

In particular, Article 55 of the Constitution of Ukraine stipulates that “human and citizens’ rights and freedoms are protected by the court.” According to Article 32 of the Constitution Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be expunged, and also the right to compensation for material and moral damages inflicted by the collection, storage, use and dissemination of such incorrect information”. In addition, Article 28 of the Constitution provides that “Everyone has the right to respect of his or her dignity.”

10. The recent amendment to the law on the possibility of non-application of lustration to a number of people introduced by the President (in the defense field), namely Article 1, paragraph 8 is rather controversial. It envisages that:

The ban of paragraphs 3 or 4 of this Article shall not apply to senior officers who occupied or occupy positions in the Ministry of Defense of Ukraine, the Armed Forces of Ukraine, the State Border Guard Service of Ukraine, the National Guard of Ukraine and other military units established under the laws subject to the necessity to ensure the defense of the state and subject to satisfaction of the corresponding application in the manner specified by this Law.

Defense Minister of Ukraine, Head of the State Border Service of Ukraine, the commander of the National Guard of Ukraine, heads of other military units are entitled to bring a motivated request in consultation with the Verkhovna Rada of Ukraine on National Security and Defense to the President of Ukraine concerning the non-application to the persons referred to in paragraph 1 of the ban to occupy positions while they are screened.

The request provided for by subparagraph 2 of this paragraph may also be brought in respect of senior officers who were dismissed from their posts in the Ministry of Defense of Ukraine, the Armed Forces of Ukraine, the State Border Guard Service of Ukraine, the National Guard of Ukraine and other military units established under the laws, for which the ban was imposed, by paragraphs 3 and 4of this article.

After reviewing the relevant request, the President of Ukraine makes a decision. If an authorization is granted a person is regarded as one against who relevant bans set out in paragraphs 3 and 4 of the article are not imposed.

The question is why other equally important aspects of life do not fall under the scope of similar exceptions. This provision, therefore, may be considered as discriminatory, which is contrary to Article 24 of the Constitution, stipulating that “Citizens have equal constitutional rights and freedoms and are equal before the law”, and article 21 of the Constitution, in accordance to which “All people are free and equal in their dignity and rights.

Nevertheless, broad application of the aforementioned provisions could take place. For example, in Poland, the party approach to lustration procedures was mitigated by the existence of ‘public confession.’ This approach is obviously unacceptable towards individuals who have committed serious crimes.

However, if to cleanse those who have been ‘silent accomplices of the regime,’ there are still advantages: to some extent reduce the degree of tension in the society and preserve personnel. Unfortunately, Ukraine has not considered this approach and lustration has mostly affected ordinary civil servants of various state agencies.

11. Clause 2 of the Final and Transitional Provisions of the Law establishes additional grounds for termination of employment contract.

This ground is the dismissal of the head of an independent department under lustration due to the fact of occupation of the position envisaged by subparagraphs 7, 8, 9 of paragraph 1, subparagraph 4 of Article 3 of the Law:

Установить, что в течение десяти дней со дня вступления в силу настоящего Закона руководитель органа (орган), к полномочиям которого относится увольнение и/или инициирования освобождения от должности лиц, к которым применяется запрет, указанная в части третьей статьи 1 настоящего Закона, на основе критериев, определенных частью первой статьи 3 настоящего Закона, на основании сведений, имеющихся в личных делах этих лиц: 1) освобождает этих лиц с должностей или направляет руководителю органа (органу), к полномочиям которого относится увольнение с должности таких лиц, соответствующие документы для их увольнения не позже чем на 10 рабочий день со дня получения таких документов; 2) информирует Министерство юстиции Украины об их освобождении от должностей и предоставляет соответствующие сведения о применении к таким лицам запрета, предусмотренного частью третьей статьи 1 настоящего Закона, для их обнародования на официальном веб-сайте Министерства юстиции Украины и внесения в Единый государственный реестр лиц, в отношении которых применены положения Закона Украины “Об очищении власти”, в порядке и сроках, определенных настоящим Законом.

Along with the aforementioned lack of individual approach and an artificial extension of the application of lustration criteria these provisions may violate the right to work guaranteed by the Constitution, and to establish unlawful discrimination.

Termination of civil service by exemption is a type of legal liability, therefore, the mentioned provisions of the Law once again confuse the concept of lustration and the possibility of bringing to justice those whose guilt is established. Moreover, given the above proven ‘lateness” of a number of provisions of the Law, such norms of Final and Transitional Provisions of the Law violate Article 22 of the Constitution of Ukraine, which does not allow diminishing the content and scope of existing rights and freedoms in the adoption of new laws (“The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force”). In addition, these provisions can be regarded as contrary to Article 38 (“Citizens enjoy the equal right of access to the civil service and to service in bodies of local self-government”) and 43 (“The State creates conditions for citizens to fully realise their right to labour, guarantees equal opportunities in the choice of profession and of types of labour activity…”) of the Constitution.

Failure to follow the case-law of the European Court of Human Rights

It should be noted that a number of provisions of the Law are at odds with the practice of the European Court of Human Rights (ECtHR).

It is worthwhile to mention that the failure to follow the ECtHR practice may not only result in numerous lawsuits against Ukraine but also raise the question of whether the process of government cleansing in Ukraine is lawful. Furthermore, pursuant to the Law of Ukraine “On execution of decisions and application of the European Court of Human Rights practice” when hearing cases national courts apply the 1950 European Convention and ECtHR case-law which is determined as a source of law (it is established as the practice of the European Court of Human Rights and the European Commission of Human Rights).

In this case, such practice includes ECtHR decisions regardless of whether they are rendered on Ukraine. Thus, the inconsistency of the Law of Ukraine “On Government cleansing” with the above practices to be applied by the courts as a source of law, lays grounds for challenging of these provisions.

Among the decisions of the ECtHR, which the Law of Ukraine did not take into account the following should be mentioned:

  1. Matyjek versus Poland.

The Court found a violation of Article 6, giving as a reason that the state wishing to adopt lustration laws must ensure respect for human rights in the course of lustration. It was found that the person should have complete access to information and have full-fledged procedural rights during the screening (e.g., the ability to take notes, recordings, etc.). Detailed procedural rights and access to relevant information are currently not properly spelled out in the legislation of Ukraine.

  1. Mościcki v. Poland.

The Court confirmed the right of access to all the information about a person against whom such information is collected, and the need to have access to all available inculpatory and exculpatory evidence. The nature of the evidence for the use of lustration (and, in general, the need for such evidence) is not prescribed in the legislation of Ukraine, which raises doubts regarding the fairness of lustration and the presumption of innocence.

  1. Adamsons v. Latvia.

Four criteria pertaining to lustration have been coined: guilt must be proven in each individual case; – the right of defense, the presumption of innocence and the right to appeal to a court must be guaranteed; – the different functions and aims on the one hand of lustration, namely the protection of the newly emerged democracy, and on the other hand of criminal law, i.e. punishing people proved guilty, have to be observed; – lustration has to meet strict limits of time in both the period of its enforcement and the period to be screened.

Not all criteria for the application of lustration are clear at the moment (e.g. why the time criterion set in Article 3, paragraph 1 of the Law of Ukraine “On cleansing of the authorities” applies to individuals who occupied high-level positions in the state apparatus for at least a year). In addition lustration is not based on the principle of individual liability; the legislation also does not provide for a gradual reduction of the term banning the persons to occupy positions in authorities.

  1. Sidabras and Džiautas v. Lithuania.

It was found that the restriction to occupy positions in the private sector is unlawful. The KGB Act was found belated, as it had been passed more than 10 years since independence.

For the same reasons norms of Ukrainian legislation on the KGB or the Communist Party structures (argument in favor may be the fact that by this time because of the nature of Ukrainian power elites was unable to adopt the respective laws – but in any case, the issue is controversial and requires appropriate justification on the part of Ukraine) can be regarded as belated.

  1. Ždanoka v. Latvia.

The necessity of an individual approach and inappropriateness of ‘belated norms,’ the duty of the Parliament to constantly review laws to bring them in conformity with demands of the society is found.

Accordingly, the legislation of Ukraine almost completely fails to take into account this decision.

Thus, taking into consideration the above decisions it may be concluded that current legislation of Ukraine on lustration violates human rights and freedoms. Moreover, this practice is not so-called soft law, advisory opinions of international organizations or adherence to European values. It is an evident violation of its own legal obligations by Ukraine as a member of the Council of Europe.

The procedure for the adoption of legislation on lustration

The procedure of adoption of the law by the Verkhovna Rada took place with a number of violations.

The Venice Commission has also learned from available reports that the procedure of adoption of this Law of Ukraine “On Government Cleansing” took place in peculiar circumstances: although, as the Ukrainian authorities have submitted, the first and the second reading took place at one month’s interval, with more than 400 amendments being filed, the text of the draft law and its proposed amendments were not made promptly available to MPs during the last vote and the vote took place under pressure from protesters blocking the building of the Verkhovna Rada.

The actual text of the law was only made public after it was signed by the speaker several days following its adoption. The Venice Commission wishes to underline that such procedural irregularities are at odds with the rule of law. They cast a negative light on its legitimacy, which is particularly problematic for a law aiming at restoring trust in the public authorities and ensuring an open and transparent exercise of public power. The Commission, therefore, calls on the Ukrainian parliament not to repeat similar irregularities in the future.

Thus, the most evident procedural violations (not to mention political pressure on the Parliament) were:

  • MPs voted on a law being not familiar with the final text;
  • the uncertainty of consideration of all amendments by the relevant committee;
  • voting on the draft law not ‘on the first try’ and deciding to reconsider it (which though being typical for the current parliament does not match the Rules of Procedure).

In particular, on September 16, 2014, when for a second time in one day the Parliament did not uphold the draft law in the second reading and as a whole, the deputies also did not vote for a return the draft law on lustration for reconsideration (№4359a) at 5:46 p.m. In other words, the decision to return the draft law for consideration was rejected and at the same time at 5:56 p.m. it was put to a vote again and upheld.

In addition, the negative vote on the draft law as a whole was supposed to be taken into consideration and, therefore, the draft rejected in accordance with Article 107 of the Rules of Procedure of the Verkhovna Rada:

The draft law is considered rejected if the proposed decision to uphold it has not acquired the required number of MPs’ votes. This rejected draft law is included in the minutes of the plenary session of the Parliament. The rejected by the Verkhovna Rada draft law or an essentially similar draft law may not be introduced in the current and next extraordinary session of the Verkhovna Rada of the corresponding convocation. The rejected draft law is excluded with a respective indication in the electronic computer network database of the Parliament website.

In addition, there was a violation of Article 117 of the Rules of Procedure from the outset providing for:

… a draft law prepared for the second or a repeated second reading, the conclusion of the main committee and other supporting documents are furnished to the MPs not later than ten days before the consideration of the draft law at the plenary session of the Verkhovna Rada.

It was found that deputies did not review the final text of the draft law and the Administrative Office of the Verkhovna Rada clarified its final content for a few more days.

However, now it would be difficult to hold someone personally liable because many decisions have been taken collectively or under public pressure; besides the violation of the Rules of Procedure did not prevent the President from signing the draft law, which resulted into certain legalization thereof. However, the fact of procedural violations may be considered grounds for challenging the validity of the Law of Ukraine “On Government cleansing.”

Draft laws related to the Law on Lustration registered at the Verkhovna Rada

Draft law


Draft law on the suspension of the Law of Ukraine “On Government Cleansing”

1515 dated 19 December 2014

It is proposed to suspend the Law of Ukraine “On Government Cleansing” № 1682-VII in order to prevent violations of rights, freedoms and interests of citizens of Ukraine, which may be unfairly affected by the Law of Ukraine “On Government Cleansing”.”

The draft law can be considered appropriate.

Draft law on Amendments to the Law of Ukraine “On Government cleansing” and other legislative acts of Ukraine

2040 dated 5 February 2015

The draft law in itself is a completely new version of the law. Its political nature and misuse of lustration are self-evident.

In fact, its criteria do not satisfy any standards.

Draft law on Amendments to other legislative acts of Ukraine (on retirement of individuals dismissed in accordance with the procedure defined by the Law of Ukraine “On Government cleansing”

2063 dated 6 February 2015

The draft is withdrawn (29 May 2015)

The purpose of the draft law is to deprive of retirement pension of individuals who committed illegal acts between 21 November 2013 and 22 February 2014 against citizens and to grant a pension to individuals provided by the general scheme pursuant to the Law of Ukraine “On Compulsory State Pension Insurance.”

In fact, the draft law does not solve the existing problems and only aggravates social protection of screened individuals. The proposed changes would make sense if lustration took place on an individual basis and only in respect of senior civil servants.

Draft Law on Amendments to Article 364 of the Criminal Code of Ukraine on responsibility for the abuse of authority or position upon implementing the Law of Ukraine “On Government cleansing”

2314 dated 4 March 2015

The draft law aims at strengthening the responsibility for the abuse of authority or position in the Law of Ukraine “On Government cleansing.”

The idea of the bill is positive, but it ignores the necessity to strengthen responsibility for the misuse of lustration against a person with a certain personal purpose; the draft is thus rather one-sided.

Draft Law on Amendments to Article 5 to the Law of Ukraine “On Government cleansing” (relative to information coverage) The draft is withdrawn (23.04.2015)
Draft Law on Amendments to the Laws of Ukraine “On Government cleansing,” “On Higher Education” for the recognition of voting for the “dictatorship laws” on January 16, 2014 criteria for government cleansing (lustration) and for prevention the election to the post of heads of higher educational institutions of individuals who voted for the “dictatorship laws” on January 16, 2014

2505 dated 1 April 2015

The draft law is rather selective and does not solve systemic problems, and only worsens the situation with lustration turning it into a means of punishment. The main purpose of the draft law is to recognize the vote for the “dictatorship laws” on January 16, 2014 the criterion for the government cleansing (lustration) and to prevent the election to the post of heads of higher educational institutions of individuals who voted for the “dictatorship laws” on January 16, 2014
Draft Law on Amendments to some legislative acts of Ukraine on government cleansing

2695 dated 21 April 2015

The purpose of this draft law is to take into account the preliminary opinion № 788/2014 of the European Commission For Democracy Through Law

The draft law, on the one hand, solves a number of existing problems (for example, provides for the creation of an independent organ) and, on the other hand, contains provisions incompatible with human rights standards – provides for lustration of elected positions (contrary to the Guidelines).

Draft Law on Amendments to some legislative acts of Ukraine on improvement of government cleansing mechanism

2695-1 dated 5 May 2015

The purpose of this draft law is to take into account the preliminary opinion № 788/2014 of the European Commission For Democracy Through Law

The draft law, on the one hand, solves a number of existing problems (for example, provides for the creation of an independent organ) and, on the other hand, contains provisions incompatible with human rights standards – provides for lustration of elected positions (contrary to the Guidelines).

Draft Law “On Government cleansing” (on candidates for elective positions)

2695-2 dated 7 May 2015

The draft law provides for lustration of elective positions (contrary to the Guidelines).
Draft Law on Amendments to some legislative acts of Ukraine on government cleansing

2695-3 dated 7 May 2015

The draft law partly takes into account the preliminary opinion № 788/2014 of the European Commission For Democracy Through Law (in particular, it provides for creation of an independent organ), however at the same time it strengthens norms related to the responsibility and a number of persons falling under the lustration “to ensure impossibility of avoiding the lustration.” This approach is applicable to the holders of positions during the communist period.

In other words, evident flaws of the legislation in respect of human rights are not solved.

Draft law on Amendment to Article 1 of the Law of Ukraine “On Government Cleansing” (on improving the mechanism of lustration of officers holding positions in established under the law military units)

3023 dated 3 September 2015

The draft law is designed to preserve the workforce capacity needed to ensure the defense of the state by means of non-imposing of ban under Article 1, paragraphs 3 and 4 of the Law of Ukraine “On Government Cleansing” to the individuals occupying (occupied) high and senior positions in the Ministry of Interior, Security Service of Ukraine, Ministry of Defense of Ukraine, Armed Forces of Ukraine and other military units established under the laws.

The draft law is relevant to mitigate the lustration for at least certain categories of people however it does not solve systemic problems of violations of human rights.

Draft Law on Amendments to Article 9 of the Law of Ukraine “On local elections” on ban to be elected for individuals falling under government cleansing (lustration)

3271 dated 8 October 2015

The draft law provides for individuals who during the local election process in Ukraine are nominated as candidates for deputies of local councils, village, candidates for the post of mayor, headman to fall in the scope of lustration criteria under the Law of Ukraine “On Government Cleansing” № 1682-VII of September 16, 2014.

Thus, lustration is applied to elective offices, which is contrary to the Guidelines.

Political Science Analysis of lustration: challenges and possible legal solutions

The preamble to the Law of Ukraine “On Government cleansing” declares that it is aimed at promoting democratic values, the rule of law and human rights in Ukraine.

Pursuant to Article 1 the cleansing process aims at “keeping away from public governance those persons who made decisions, took actions or inaction (and/or contributed to their taking) facilitating the violation of rights and freedoms”. The very fact that the government prevents individuals whose actions facilitated the violation of human rights from occupying positions is advantageous for two reasons:

  • it is a kind of moral satisfaction to the victims of the illegal actions of the authorities;
  • it is a guarantee of non-repetition of systematic human rights violations in the future.

However, the phenomenon, which in its nature eliminates guarantees of non-violation of human rights, may not be moral satisfaction or guarantee of non-repetition of violations. Other states’ example proves that random human rights violations during lustration are almost inevitable. Moreover, the legislation of Ukraine from the outset laid down a number of contradictory rules in the so-called government cleansing, which obviously discredits the process of lustration in Ukraine and its future results.

The following problems may arise in this regard:

1) Lustration could deepen existing division in Ukrainian society.

Its goal may be deliberately twisted to impose on a number of regions (or social groups) thesis about the winners and losers, and the process can be seen as squaring political account with opponents.

The solution to this problem may be the imposing of lustration measures on the individual basis with the clear criteria to be taken into account.

2) Lustration must be carried out as properly as possible which points to the process being expensive.

The creation of an independent organ of lustration, deep and thorough screening, the establishment and management of the public databases require significant funds. Furthermore, European standards require certain social guarantees for individuals under the lustration process (except for high-level officials), which will be an additional burden on the budget.

Today Ukraine has practically leveled the economic component of the lustration thereby reducing budgetary costs, the legislation also created possibilities for human rights violations. Hardly rights and freedoms of an individual can be considered a proper area for savings.

The solution may be reducing the lustration scale (list of criteria and the list of positions) while increasing its quality.

3) Ukraine is not ready for the consequences.

In the Czech Republic, 140 thousand people fell under one of the respective laws. It is doubtful whether Ukraine is ready for such a scale of lustration, although judging from preliminary estimations the current lustration legislation affects over a million people (according to former Attorney General Vitaly Yarema).

The solution may be to reduce criteria for the application of lustration.

4) The constitutional courts of States assessed the lustration differently.

In Hungary, a number of laws were found unconstitutional (they were deemed ‘a measure of revenge and retaliation’), though the need to declare and disclose personal information about public figures was declared (disclosure became a sanction measure).

In Poland, amendments to legislation on lustration of 2007 aimed at expanding the range of individuals who fell under cleansing were recognized unconstitutional (e.g., businessmen, journalists). The trial can not be avoided, because lustration, as a measure to protect ‘newly-emerged democracies’ is not always fully compatible with some principles of law and human rights.

The pending process in the Constitutional Court of Ukraine proves the point. Any outcome of the process will be no-win for the society:

  • positive assessment of the legislation will not contribute to making the necessary changes and will be contrary to legal logic, because a number of shortcomings are self-evident;
  • negative assessment of the legislation on lustration will be rejected by part of the society due to the artificially imposed approach of lustration as the only alternative and thus, cause a radicalization of public sentiment. Moreover, this process is already regarded as politically motivated due to cases initiated against peoples’ deputies who defend the constitutionality of laws and criminal cases against pressure on the court.

The solution may be a transparent and rapid process of revision of the lustration legislation and bringing justice by other instruments – in particular, by resorting to criminal law.

In general, the best approach to lustration is based on three principles:

  • focusing on the high-level positions and a limited number of individuals;
  • imposing of lustration on the individual basis with taking into account the presumption of innocence;
  • carrying out of lustration by an independent organ.

All other tasks that were incorrectly assigned to lustration measures (combating corruption, criminal prosecution of individuals responsible for crimes, lustration in the judiciary) should be solved by means of other structural reforms and effective law enforcement agencies.

Overall, the point expressed in the Final Opinion of the Venice Commission is rather precise:

Lustration must never replace structural reforms aimed at strengthening the rule of law and combating corruption, but may complement them as an extraordinary measure of a democracy defending itself, to the extent that it respects European human rights and European rule of law standards.

However, in Ukraine in the course of imposing lustration and popularization of this campaign a very important issue has not been decided: whether the lustration as an “extraordinary measure of protection” is necessary?

Has Ukraine failed to reach such a level of development of the legal system since independence when to punish those who are truly guilty of illegal actions, it is necessary to apply other, more complex measures?

A lot of time has passed since the adoption of the Ukrainian legislation on lustration and finding of its non-compliance with European principles, and none of the politicians who believe lustration is the only possible response to social challenges has offered a qualitatively new version of the law.

This fact discredits the lustration process in Ukraine even more, making the following point strikingly obvious: one can not protect human rights and the rule of law in a ‘newly emerged democracy’ with a method, which itself poses a threat for the rule of law and for human rights.

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