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.
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 and as
having served as a minister for less than a year.
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
Yanukovych’s 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 taxpayers’ 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. “We’re 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 [email protected].
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