Comments on the draft law "On lustration" and recommendations for the second reading

By Maxim Cherkasenko, Democratic Alliance

In short, the bill does not create an impression of a comprehensive legislative act introducing a mechanism for effective lustration, designed in line with European and international experience, as well as recommendations of the Council of Europe. Hence, if adopted without substantial revision, the bill is unlikely to achieve the purposes of lustration procedure, such as fighting corruption within the governmental bodies. In addition, there is a high probability that bill’s implementation in its current version is likely to result in a range of negative consequences, e.g. biased and selective use of the law such as dismissal of “unwanted” persons in governmental agencies, violation of some constitutional rights, etc. The cumulative effect of such legislation may discredit the concept of lustration as such, despite the fact that there’s a high social demand for lustration now.

Recommendations:

• Ensure the due implementation of recommendations issued in 1481 PACE Resolution "Need for International Condemnation of Crimes of Totalitarian Communist Regimes"(2006) and 1096 PACE Resolution "Measures to dismantle the heritage of former communist totalitarian systems"(1996).


• Incorporate the jurisprudence of the European Court of Human Rights in a number of cases on lustration in Poland, Slovakia, Latvia and other countries, as well as standards by the European Convention on Human Rights (including the right to a fair trial and the right to privacy).

I. Individuals subject to examination

The suggested range of individuals subject to lustration is overly broad. According to the Council of Europe recommendations, lustration should apply to positions in organizations with the capacity to undermine or threaten fundamental human rights and the democratic process. The bill allows lustration of all state offices, agencies and services, including ones in local governments. However, such scale is unfounded. Moreover, such a broad spectrum of individuals subject to lustration makes carrying out the procedure extremely unrealistic or unnecessarily protracted.

Recommendations:

• Limit the range of subjects covered by the Acticles 1, 2 and 3 with categories of civil servants and similar positions, including senior commanding structure of police, senior chief officers of the Armed Forces.


• Extend the application of the law on local councilors, village, town and city mayors;


• Extend the application of law to members of election commissions (not only CEC members).

II. Examination Criteria (lustration criteria)

The bill contains the list of individuals who a priori have failed to pass the examination since they occupied the highest governmental offices during the criminal Yanukovych regime (Article 17). The other category is comprised of individuals (including a wide range of ordinary law enforcement officers) who failed to pass the examination if found guilty in:

• causing damage to life, health, property of citizens and violating their rights following their participation in protests;
  
• unauthorized cooperation with foreign intelligence agency;
  
• separatism;
  
• election fraud;
  
• violation of human rights (in accordance with standards set by International Courts, including ECHR).
  

Additional categories include:

• Leaders of the Communist Party (up to the regional level), the members of All-Union Leninist Young Communist League, KGB members.
  
• Those who failed to pass the check on the validity information in the declaration of assets, personal income and income of their close relatives (the circle of relatives as defined in Article 5 is excessively broad; it should be limited to the next of kin).
  
• Individuals found guilty of corruption.
  

Ascertainment of guilt in each individual case throughout lustration procedure is one of the PACE recommendations, which is based on the inadmissibility of the use of the collective responsibility principle. However, it is clear that during Yanukovych’s rule the top state leaders in one way or another contributed to the development of this regime, which was characterized by the abuse of citizen’s rights, crime, and corruption in the national and local governments.

Although the bill envisages that judges are subject to examination, the only real criterion is the fact of judge’s dismissal for oath-breaking. It is crucial to provide for details on lustration procedures applicable to judges taking into account the newly adopted Law "On Restoring Trust in the Judicial System."

Recommendations:

• mandatory assessment of the grounds for lustration of a judge, which must be carried out at the stage of appointment during selection of candidates for the position or before the indefinite election; mandatory assessment of the grounds for lustration of Constitutional Court judges before their appointment.
  
• judges that have not submitted a declaration on the absence of grounds for lustration or judges who were found to submit a declaration with an inaccurate information should be banned from holding administrative positions in the courts.
  
• judges that have not submitted a declaration on the absence of grounds for lustration or judges who were found to submit a declaration with an inaccurate information should be banned from holding the position of a judge in the Supreme Court of Ukraine, the high specialized courts and appellate courts.
  
• In order to investigate the cases on judges who violated human rights by their decisions, the review of their activity should be made in line with the revised procedure of disciplinary inquiry for judges. However, the Lustration Committee must not get involved in this investigation. Instead, the Special Commission should be established under the Law "On Restoring Trust in the Judicial System."

 

III. Examination mechanism

Unfortunately, the bill does not introduce an effective mechanism for dismissal of people who discredited the government, while it lays out a number of inspections overlapping with some inspections currently prescribed by law, which proved to be ineffective in practice.

Recommendations:

• Each person claiming candidacy for position should submit lustration declaration on the absence of grounds for lustration. Appropriate independent authority (the Lustration Committee) should assess the filed declaration. In case of invalid or untruthful declaration, it shall rule on dismissal of a person from office and prohibition to hold respective positions, defined by the bill. Individuals who hold positions in the government, as well as individuals applying for such positions should be subjected to lustration examination.
  
• It is necessary to amend the electoral law and the law "On the Central Election Commission" in order to incorporate the requirement of candidates’ examination, including individuals applying for the short-term electoral process.
  
• The mechanism should be set for filing the declaration, which may be assessed after the election/appointment to the office; and in case the false information is submitted, a person is dismissed by the decision of the court.

 

IV. Lustration body (the examination body)

According to the Council of Europe guidelines on lustration compatible with a democratic state under the rule of law, adopted by the Parliamentary Assembly of the Council of Europe, lustration should only be carried out by an independent body specifically created for this purpose.

Unfortunately, the bill does not provide for the creation of a single independent lustration body, but instead engages all of the state agencies, or rather heads of such bodies. The key bodies in this process are the National Agency for Civil Service, the Central Election Commission, the High Council of Justice, the President, etc. The bill does not specify any requirements for candidates applying for the position in central or territorial lustration commissions, which should be established by the National Agency of Ukraine on Civil Service. In fact, the main burden of "cleansing" is to be born by the heads of relevant governmental bodies.

Recommendations:

• To set the rules of establishment, composition (including membership criteria), funding, competence and procedure for the single independent lustration body – the Lustration Committee. Part II of the draft law "On Lustration in Ukraine" prepared by Kharkiv Human Rights Group may be used as a model.

 

V. The validity of the law

According to PACE the recommendations, exclusion of individuals from exercising governmental power if they cannot be trusted must be limited in time. Unfortunately, the bill does not provide for such a period.

Recommendations:

•  Establish the upper limit of 10 years.

 

VI. The right to privacy

The bill provides that all investigations and subsequent decisions should be made public. This procedure, in our opinion, violates the right to privacy. There is no need to disclose the results of the investigation, if the person has been examined and is not subject to lustration. In this case, there is no public need for personal information disclosure. There might be exceptional circumstances for disclosure, e.g. when there is a reasonable doubt in the objectivity of the examination.

Recommendations:

• If a person voluntary reports grounds for lustration, personal information should not be disclosed.

 

VII. Additional comments:

• There is a need to improve anti-corruption legislation, in particular enforcement mechanism. Lustration law cannot fully manage this task and is not designed to do so. However, this law should be a tool, which permits to make corruption actual lustration criteria. In the suggested draft this criteria looks merely nominal.
  
• Broaden CEC competence to conduct inspections during the election process.
  
• Establishment of a National Memory Archive. Relevant legal framework and the procedure of its composition should be developed. Archive should merge the separate state archives of SSU, MIA, courts and other bodies into Archival Fund established on December 1, 1991, as well as materials of archives on the political persecution formed on February 20, 2014. This combined archive should be adjoined to the system of Ukrainian archival institutions, while the access to this archive must be guaranteed on the basis of a separate law. It is advisable to join National Memory Archive and the Institute of National Remembrance (then the name of the Institute of National Remembrance may be preserved).