Lustration is a practice to purge government officials connected to past administrations.
This article is “part of the Kyiv Post’s Reform Watch project, sponsored by the International Renaissance Foundation“ (George Soros’ foundation).
What is civil society? Who is the “popular” support? The first sentence speaks volumes.
Lustration law faces sabotage, legal hurdles
Oct. 23, 2014
by Oleg Sukhov
PHOTO Right Sector activists demanding lustration and exploding a smoke grenade near the Central Elections Commission building on Oct. 2. Lustration has become a key demand of civil society.
The sight of public officials being thrown into trash cans all over Ukraine has become the visible expression of popular anger with corrupt bureaucrats, with lustration becoming a key demand by civil society.
Supporters of the lustration law, signed by President Petro Poroshenko on Oct. 9, say that the cleansing of government is necessary to root out old corrupt practices and entrench Western values as part of Ukraine’s efforts to become a civilized European country.
But the law is likely to be sabotaged by officials and faces legal obstacles. Lawyers say that it will be hard to enforce it because courts may rule that it contradicts the Constitution and international law.
In September, Prime Minister Arseniy Yatsenyuk said that the law would apply to about 1 million officials. Earlier in October he said that the first 39 top officials had been fired.
Yegor Sobolev, head of the non-governmental Lustration Committee, told the Kyiv Post that the passage of the law was a victory of civil society.
“The parliament, president and Cabinet didn’t really want this law but society forced them to pass it,” said Sobolev, who is one of the lustration law’s authors and has actively pushed for its passage.
He added, however, that civil society had to make some concessions, for example, by excluding members of parliament from the list of people subject to lustration.
Sobolev urged civil society to be actively involved in the enforcement of the law.
“Without citizens and journalists’ active engagement, control over the implementation of lustration will be sabotaged,” he said.
Among former Soviet countries, Ukraine follows in the footsteps of the Baltic states, which passed lustration laws in the 1990s, and Georgia, which carried out radical anti-corruption and free-market reforms after the pro-Western 2003 Rose Revolution and introduced lustration in 2010-2011.
Lustration has also been carried out in varying degrees in most post-communist countries in Eastern Europe following the collapse of the Soviet Union.
Ukraine’s lustration law is unique because it affects not only those who served the communist regime but also a post-Soviet authoritarian regime.
Ukraine took a hardline approach towards lustration similar to that of the Czech Republic, Germany, Poland, Estonia and Latvia, where employees and agents of communist intelligence agencies were banned from public office. Other Eastern European countries like Hungary, Slovakia and Bulgaria have either failed to adopt any major lustration measures or only required disclosure of information on officials’ links to intelligence agencies.
Ukraine’s lustration law prohibits top officials who worked under former President Viktor Yanukovych from being appointed to government positions for five to 10 years.
These include people who held top government jobs in 2010 to 2014 for at least a year and those who held offices during the EuroMaidan revolution in November 2013 to February 2014 and did not quit of their own accord.
This article is part of the Kyiv Post’s Reform Watch project, sponsored by the International Renaissance Foundation. Content is independent of the financial donors. The newspaper is grateful to the sponsors for supporting Ukraine’s free press and making specialized coverage of reforms possible through this project.
The ban applies to ministers, heads of government agencies, some top judges, top prosecutors, members of the General Staff, governors, top officials of regional administrations and heads of some state companies.
Judges, prosecutors and police officers who made unlawful decisions during the EuroMaidan Revolution are also subject to lustration.
In April the Verkhovna Rada passed another law on the lustration of judges who issued unlawful rulings but it has so far effectively failed to work, with most top judges keeping their jobs.
The lustration law also applies to functionaries of the Soviet Union’s Communist Party and Communist Youth League, as well as employees or agents of the KGB, graduates of KGB-run universities, agents of other countries’ intelligence agencies and those who have called for infringing on Ukraine’s territorial integrity.
Under the law, the property of all officials and heads of state companies and their families will also be inspected, and the legality of its acquisition will be assessed. If officials fail to explain how they acquired their property, they will be fired and prohibited from holding government jobs for 10 years.
“The most important thing is to get rid of corrupt officials, regardless of whether they worked under (presidents) Leonid Kuchma, Viktor Yushchenko, Viktor Yanukovych or Petro Poroshenko,” Sobolev said.
Under the law, an official first has to agree on a lustration check. If he does not, he is automatically fired.
If he agrees, information on the lustration check is published on the Justice Ministry’s site. The check must be completed within 60 days.
Though the lustration law is comprehensive, plenty of people linked to the Communist Party and Yanukovych’s regime will be able to escape it.
One exception is elected offices like those of president and members of parliament, which will not be subject to lustration checks. For example, the lustration law does not apply to Poroshenko, who was economic development and trade minister in 2012. He is subject to two exceptions provided by the lustration law, as an elected president and as having served as a minister for less than a year.
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Sobolev said that he had proposed applying lustration to members of parliament in the original version of the bill, but Poroshenko and the pro-president UDAR party had made it clear that they would not accept that. But Sobolev added that he would push for another law that would subject members of legislatures and mayors to lustration.
Another exception is current judges of the Constitutional Court, who will not be subject to lustration either, Yury Derevyanko, a member of the Verkhovna Rada and one of the law’s authors, said in September. Nor will the law apply to those who served as chairmen of the Supreme Court under Yanukovych.
Some officials who were accused of corruption during Yanukovychâs presidency will also escape lustration.
Ihor Shchedrin, head of the Medical Control watchdog, said at a news briefing on Oct. 16 that businessmen involved in corrupt schemes and top officials of the National Academy of Medical Sciences and members of the Verkhovna Rada’s committee for healthcare issues were not subject to lustration. He accused them of spearheading corrupt schemes in the medical sphere and called them “a dragon that has not been defeated yet.”
Other top medical officials are formally subject to lustration but may be able to influence the medical sphere through lobbying and by appointing their proteges, he said.
Another presumed problem with the law is the issue of its legality.
Prosecutor General Vitaly Yarema has argued that the law contradicted the Constitution and international law. One of Ukraine’s top courts, the Supreme Specialized Court, and the Party of Regions, which previously supported Yanukovych, have announced plans to challenge the law at the Constitutional Court.
The principle of collective dismissals contradicts Article 61 of the Ukrainian Constitution, according to which legal responsibility must be individual, Leonid Antonenko, a counsel at Ukraine’s Sayenko Kharenko law firm, told the Kyiv Post. People lustrated as a result of the law will be able to appeal their dismissals in court, he said.
Ukrainian courts are also likely to take into account recommendations of the Venice Commission and Resolution No. 1096 of the Council of Europe’s Parliamentary Assembly, which also set the principle of individual responsibility, Antonenko said. If Ukrainian courts ignore these standards, those fired will be able to appeal their rulings at the European Court of Human Rights, he added.
Eastern European countries had to confront a similar problem. Lustration laws have been ruled partially or fully unconstitutional by Hungarian, Polish, Albanian and Romanian courts.
The legality of the law’s passage has also been questioned. Critics say that it was adopted with procedural violations, with members of parliament not knowing what they were approving because they did not see the edited text of the bill.
Sobolev dismissed this accusation as unfounded, saying it was being promoted by people with no respect for the rule of law.
“I’m always surprised when prostitutes start talking about morality,” he said.
Critics of the law, including Kharkiv Human Rights Protection Group head Yevhen Zakharov, have also argued that it could be used for politically motivated persecution.
Sobolev disagreed with this viewpoint.
“The law explicitly sets criteria for why someone should be expelled and provides for a transparent procedure,” he said. “Society will make sure there will be no violations.”
Apart from calling the law politically motivated, Zakharov has said that the number of people subject to lustration was excessively large, and there was no one to replace them. Critics have said that the clause on lustrating KGB employees and KGB school graduates would leave Ukraine’s intelligence agencies with few professionals.
Replying to those claims, Sobolev doubted the professionalism of current government officials.
“They are qualified, first of all, in the ability to steal taxpayersâ money and seize businesses,” he said. “They have not succeeded in maintaining law and order and justice, serving society and professionally regulating the economy. The more corrupt people will leave the government and the fewer government officials there will be, the better for the country.”
Sobolev went on to argue that Security Service employees could hardly be called professionals, saying they have failed to keep Crimea and Donbas as part of Ukraine and accusing some of them of aiding separatists. “Are they specialists in treason?” he said.
Another common objection against the law is that lustration will be supervised by the Justice Ministry and that it does not envisage creating an independent lustration commission headed by “moral authorities” similarly to Eastern European countries that have carried out lustration.
“It’s important for society to become such a body,” Sobolev said.
One of the tools allowing society to control the enforcement of the law is the Public Lustration Council, which will be headed by Sobolev and will accept complaints from citizens on violations of the law.
Opponents of the law also claim that it violates the right to privacy, since it stipulates providing crucial information about officials’ past to the public.
“Officials’ right to privacy in all civilized countries is restricted,” Sobolev said, commenting on the claim. “Weâre not going to look for their lovers. We want to ask where they work and where their property comes from.”
Kyiv Post staff writer Oleg Sukhov can be reached at firstname.lastname@example.org.
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