Since late March the Open Dialog Foundation is actively supporting lustration initiatives in Ukraine. On 1st April 2014 we have organized an international conference “Lustration: Solutions for Ukraine” that gathered expert representatives of majority of states that went through the process of lustration. We have also organized study tours and visits at the dedicated institutions in European countries.
Since June we actively collect expertise on the draft laws prepared by Lustration Committee of Yehor Sobolev and immediately share it with the working group.
Due to this effort Ukrainian draft law “On Purification of Government” has been already significantly amended. Controversial polygraph test was removed and a path to appeal from negative verification to an independent court has been granted.
However experts indicated plenty of other aspects that would have to be amended, such as:
- The scope of the verification of financial status of the family members and the privacy of third parties
It should be considered whether Article 6 subsection 4 shall not affect the right to privacy of third parties. The proposed scope of the family members of the persons subjected to verification seem too wide in the opinion of experts. There has not been such precedence in the European legal tradition, except for special verification, applicable to members of the special forces in the country and by inspection of the fact cooperation with the third countries done in a confidential manner. This is not the same as verification of candidates for positions in the ordinary state administration bodies.
- Timeframe of verification process
Consider whether the Article 7 Timeframe of verification is realistic. Designer proposes a period of 30 working days. According to experts, this term is not realistic. Experience of the verification of other countries suggests that information gathering and organizing the archives is tedious and requires patience – a reasonable minimum realistic timeframe would be at least 4 – 6 months.
- Instances of appeal in the case of negative verification
Authors of the proposal due wish to satisfy the requirements of the Council of Europe resolution 1096 (1996) concerning, inter alia, guarantee the possibility to appeal from negative verification to the court mention in Article 15 (Appeal from decision of the verification bodies) Administrative Court as the court of jurisdiction to hear such cases. It should be considered whether in an emergency situation of a state in transition Ukraine is now, it would be better to create a special Lustration Court composed of judges selected to perform this kind of decisions and specially trained for such cases. Here, one of the experts filed a dissenting opinion, stating that in his opinion such a procedure should be subjected to civil procedure, and certainly within the general judiciary system.
- An incomplete catalog of communist secret services
Authors mention in the Act (Art. 4 Basics to negative verification) positions holding which which in the past or now become a cause for automatic disqualification for employment in the civil service. The reviewers pinpointed that the proposal mentions only KGB and forgot about military special services of the Soviet Union like GRU.
- Collective responsibility
From the point of view of international law and the jurisprudence of the courts there is a concern about depriving position for the mere fact of occupying a specific position (Art. 4 Basics to negative verification) without proven guilty of committing human rights violations or other crimes.
- Need to separate historical issues from the present
It seems advisable to separate the historical issues concerning the situation of the independence of Ukraine in 1991. Verification with regard to collaboration with the former security services of the Soviet Union (being their conscious, voluntary and secret collaborator) would require amendment of the Act on the Institute of National Memory to grant that all the pre-1991 archives of the SBU are given to this Institution together with competence to prosecute the crimes against the citizens of the former Ukrainian Social Soviet Republic. The basis for the negative verification can be concealing the fact of collaboration or reasonable doubt that the suspect made their crimes against the citizens of the Ukrainian SSR. Similar arrangements are now in some post-communist countries of Central and Eastern Europe. There is also a need for a very detailed description of what is collaboration with the regime and what is not. However with this regard the Czech expert emphasizes the need to ban former higher employees of the regime from holding public offices as such.
- The authority responsible for the verification and its procedure
Reviewers of this proposal have doubts as to the not entirely clear record establishing the National Agency of Civil Service as the body responsible for performing verification (Art. 5 Organization of verification). Art. 5, which discusses the verification procedure essentially vaguely and inaccurately describes how the persons carrying out the verification would themselves be verified.
The Act does not specify the procedure for appointing committees or any to the merit procedures for their work, and clear description of the procedure seems to be one of the basic requirements of the good lustration project. The minimum recommendation is to accurately describe the verification procedures in accordance with other provisions of law, including the Civil Code and applicable administrative regulations and relevant codes.
- The need to create an independent institution
But moreover in the opinion of the reviewers there is a need to create a special independent institution to perform verification of candidates to public service. It is one of the requirements of the Council of Europe that such institution would be independent from executive power.
- Public control and international observers
Reviewers appreciate ensuring public control of verification and public access to the whole process of lustration (Art. 17 Public participation in verification) – this is a very important issue that has not been realized in any of the countries in transition with the exception of the so-called. Truth and Justice Commissions operating in African countries, including South Africa. The proposed provisions positively distinguish this law from the regulations in force in other post-communist countries in the region.
Innovative idea worth being taken into consideration, which could further enhance the transparency and credibility of the verification procedures and help to dismiss allegations of use of the verification as a tool in the internal political conflicts, can also be the presence of international observers in the process of lustration.
However the Article 17 should more precisely describe in detail the procedural aspect of the public control of the process, as in it’s current phrase it does not specify who and how can monitor the process.
Among the experts who performed consulting and given suggestions were:
- Dr Pavel Žáček, founder and first president of the Institute for Study Totalitarian Regimes in Prague,
- Petruška Šustrová, Czech columnist and co-author of the Czech lustration solutions,
- Paweł Osik, a defence attorney, former manager of lustration project of Helsinki Fund of Human Rights in Poland,
- Professor Roman David academic specialist on transitional justice from Lingnan University, Hong Kong
- Filip Cyuńczyk, PhD candidate from the State University of Białystok
- Radosław Peterman, Deputy President of the Lustration Department of the Institute of National Remembrance in Poland
- Anne Soulleilac, attorney specialized on human rights, member of the French Bar Council
Expertise is still being collected.
On 26th August 2014 there was public discussion at the Verkhovna Rada of Ukraine that aimed to help draft the final version of the law and utilize all of the ideas of amendments from both foreign and domestic experts.
Key speakers present were, among others: Maksym Cherkasenko from Democratic Alliance, who pinpointed the need to allign the draft law with standards of the Council of Europe; Boris Zakharov from Helsinki Human Rights Group from Kharkiv who insisted on inclusion of Article 2 of draft law his group has been working on (which is available here in Ukrainian: http://khpg.org/index.php?id=1395931128) into Lustration’s Committee proposal and narrow down the scope of verified subject’s family members to relation of husband/wife.
Moreover one of the key speakers was also Andriy Schumsky who presented mentioned above collective suggestions of amendments gathered from international experts to the other members of the group.
Other speakers included: Tetiana Kozachenko, Olga Galabala from Reanimation Package of Reforms and VOLYA party, Svitlana Zalishchuk from Reanimation Package of Reforms – president of Checno.
Most of the speakers agreed that the scope of verified positions should be narrowed to top 3 ranks of officials and procedure simplified and aligned with ECHR jurisprudence to avoid any possible losses of future trials.
Open Dialog Foundation welcomes the position of Mr Yehor Sobolev who emphasized the need to incorporate the following amendments:
- The law should be changed to comply with ECHR jurisprudence
- There is a need to clarify the procedure
- There is a need to create independent institution
- Other security and secret services of former Soviet Union should be included – GRU too
- Realistic time of verification process should be imposed
- The scope of family members of the verified person who has to submit declaration of assets should be thought over because it is too wide
However at the same time the Open Diaog Foundation would like to express concern related to position represented by representatives of Members of the Supreme Council who try to convince the public, that in it’s form as of 26th August 2014 the law proposal is valid in terms of European standards.
We support Ukraine’s efforts to join the European Union, therefore once again we highlight the importance of thorough research and accurate information, as foreign experts highlighted areas that require amendments.
Further steps:
- till 29th August the Lustration Committee collected written suggestions of amendments.
till 1st of September final draft is being discussed among the MP’s. - till 2nd September final draft is being presented to the Supreme Council of Ukraine
- on 4th September the law will likely be voted in the 2nd Vote.
For more information please contact:
Agnieszka Piasecka [email protected]