LUSTRATION: HISTORICAL AND POLITICAL BACKGROUND
The term “lustration” comes from the Latin lustratio (purification by sacrifice). In ancient Greece and Rome, it meant a special purification ritual for an individual or a community to ward away bad influences and bad luck or redress collective guilt. As a legal tool used in settlements in the past, in a fragmentary form, it was present in American settlements after the American Civil War in the mid-19th century and the processes of de-nazification and de-fascization following World War II. In the most common and modern understanding, as a systemic solution used to verify persons performing public functions, lustration appeared in Czechoslovakia – the first post-communist state to introduce the process. In various forms and to various effects, lustration was thereafter introduced in most post-communist countries of Central Europe and in the Baltic States. After the victory of the Rose Revolution in Georgia (2003) and after Mikheil Saakashvili had become President (2004), lustration was adopted by Parliament, yet it was later blocked by a court ruling.
Lustration is often understood as verification of politicians and state officials but, despite significant similarities, there is a certain fundamental difference between the two. Verification is (and should be) carried out in every country to check the candidates for public service. Lustration, on the other hand, is a special form of verification, the essential aim of which is to restrict the possibility of people who might pose a threat to a transforming state following the end of the rule of the previous (non-sovereign, non-democratic, law-violating) regime competing for posts.
Lustration is often performed to secure so-called transitional justice. The scope of its application and methods may be significantly different. In some cases, people associated with the previous regime were simply banned from working within public administration. In other cases, the intention was, rather, to reach national consensus, an example of which is the solution based on the setting up a so-called Truth and Reconciliation Commission modelled on the commission of Bishop Desmond Tutu in South Africa after the fall of the apartheid. The solutions applied usually depend on how aggressive the previous regime had been towards its own citizens and to what extent society is consolidated and determined to prevent its former representatives from influencing the new realities. Strong social polarisation is usually reflected through political divisions thus rendering it considerably more difficult to implement appropriate legislative solutions.
In order to regulate lustration issues, the Council of Europe adopted Resolution 1096 (1996) which sets out guidelines for dealing with the past in post-communist countries. Even though the Resolution sets a time limit for the introduction of lustration measures of no more than 10 years from the start of the systemic transformation, it has, in practice, also become a signpost for states which are now undergoing a revolutionary change of rule. The Resolution too provides the primary basis for judgments to be passed in lustration cases pending before the European Court of Human Rights in Strasbourg.
In the case of Ukraine, after the collapse of communism in Central and Eastern Europe, lustration was not carried out (not even symbolically, as regards the presence of relics of communism in the historical memory and public space), and the political conditions made any compromise in this matter impossible. Systemic transformation relating to the collapse of the USSR and Ukraine gaining independence was superficial, as we have observed in events over recent months. As a result, governmental structures have continued to sustain many people associated in a variety of ways with the old communist regime, who have never broken their formal and informal ties with the structures of the former USSR, including those in the sphere of security and intelligence (KGB, GRU) who are now operating for the Russian Federation.
The theme of lustration became noticeable during the Orange Revolution in 2004 which was initiated by mass-scale social protests against the falsification of the presidential elections in favour of the candidate of the Party of the Regions Viktor Yanukovych, supported by the President in office Leonid Kuchma. It was also then that the first initiatives were undertaken to address the totalitarian past. The well-known anti-communist dissident and deputy of the Ukrainian Parliament Levko Lukyanenko put forward a lustration initiative to verify whether the candidates for managerial positions on the legislative, executive and judicial bodies at the central, regional and local levels had been involved in rigging the presidential elections in 2004 and to establish whether they had been secret and conscious collaborators of the former Soviet security services. Alongside lustration, Lukyanenko proposed, however, amnesty and national reconciliation in the name of the creation of a common future based on the recognition of these acts. This, however, did not resonate more widely and his concepts did not ultimately take the form of a legislative initiative. Soon afterwards, upon an initiative by Yulia Tymoshenko’s Bloc, bill #7028 was drafted which was subsequently rejected, however, during work in the commissions of Ukraine’s Verkhovna Rada. The same fate befell another draft act on lustration submitted upon the initiative of the leader of the Svoboda party, Oleh Tyahnybok, who renewed his initiative in 2012 – also to no avail.
After the end of the rule of Viktor Yanukovych in February 2014, as one of the chief social postulations (along with European integration and the fight against corruption), lustration returned to the mainstream of political life in a modified form. This time around, it was to serve, primarily, as a tool to fight the old corrupted politicians and public servants, perceived as the chief obstacles to modernisation of the country.
The other factor which led to a rise in the temperature of public debate was the quality of command in the so-called ATO zone (zone of operations of the Ukrainian anti-terrorist military personnel in eastern areas of the country, aimed at illegal armed groups supported by Russia) which has resulted in major losses amongst Ukrainian forces. The anti-terrorist operation was announced on 15th April 2014 and has continued to this day. Society, justifiably in essence, put the blame for that on the Ministry of Defence and the chief of staff, as well as the commanders of the operation. The suspicions were that oftentimes, the commanders were intentionally clumsy in carrying out their operations which, in turn, was caused by widespread infiltration of the Ukrainian armed structures by Russian intelligence services. This was also affected by corruption leading to cases of black market sales of supplies to troops involved in the fighting, and even attempts to sell to their own soldiers (including ammunition). For these reasons, the head of the Social Lustration Committee, Yehor Sobolev, labelled the planned lustration legislation “a law written with the blood of our soldiers”.
LUSTRATION INITIATIVES AFTER THE END OF THE PROTESTS AT MAIDAN IN FEBRUARY 2014
As a result of the growing social pressure concerning lustration (often illustrated by a drastic motto in its essence: ‘lustration or castration’), many parliamentarians and social activists started to work, in parallel, on draft acts on lustration, form social lustration committees and prepare bills, many of which were ultimately received by Ukraine’s Verkhovna Rada. It is to be noted that society and numerous working groups understood the term lustration in a variety of ways (from the identification of collaborators of third country special services, through property lustration to fighting corruption and hybrid solutions).
During that period, which was until 9th April 2014, the Verkhovna Rada registered four different draft lustration laws:
- #4570 submitted by Oleh Tyahnybok from the Svoboda party;
- #4570-1 submitted by Volodymyr Ariev (Batkivshchyna, formerly Our Ukraine bloc);
- #4570-2 submitted by Valeriy Patzkan (UDAR);
- #4570-3 submitted by Roman Chernehy (UDAR too).
The draft act proposed by Svoboda was the most radical. It envisaged the removal of all judges and prosecutors who performed their functions during the rule of Viktor Yanukovych (2011-2014), as well as all senior public officials who had been involved in corruption or participated in any actions taken against the protesters at Maidan. The act did not provide, in their case, for the right to file an appeal against a lustration decision with a court or any other body. All public positions, from the President of Ukraine and the management of his administration, the Prime Minister and members of the Cabinet of Ministers (the government), as well as heads of departments, sections and their deputies at all central, regional and local state administrative offices were to be subjected to lustration. Lustration was processed by a special Lustration Commission subjected to the Supreme Council of Ukraine with a special status. Each case was to be prepared individually and each of the sides could appeal to the court from the Commission’s verdict.
In addition to the points mentioned in Svoboda’s proposal, the draft law put forward by Batkivshchyna referred to officials of the Autonomous Republic of Crimea and the Central Electoral Commission and all legal circles, including the bar. The following persons, lustrated, were to be mandatorily dismissed from their positions if they:
- had been members of any central and regional units of the Communist Party of Ukraine;
- had been KGB functionaries or collaborators;
- had been students of the Higher School of State Security (KGB) at the F. DherzhynskyCouncil of Ministers of the USSR in Moscow and attended courses for KGB officers;
- during Viktor Yanukovych’s rule, had passed judgments against protesters (judges), initiated or permitted actions against EuroMaidan participants;
- had committed corruption.
The act provided for the establishment of an independent State Lustration Commission of Ukraine responsible for conducting verification in a decentralised manner – the Commission was to have its headquarters and regional offices performing their duties in a synchronised manner. Its composition, supervision procedure and powers were described in great detail and its budget was to be guaranteed, offering it a chance of effective operation. The act did not envisage the possibility of filing appeals against a negative outcome of the verification process with a court.
The drafts submitted by the UDAR were the closest to the Polish lustration solutions and the most liberal. They provided for the verification of the three top categories of state officials, including people’s deputies (members of Parliament) of Ukraine, ministers and deputy ministers, members of the Central Electoral Commission, members of the Higher Judiciary Council and judges of supreme central courts. Dismissal was to be ordered for people who:
- had occupied managerial positions within the governing bodies of Ukraine’s Communist Party, Communist Party of the Soviet Union;
- were involved in any decision-making or supported the persecutions of the parliamentary opposition and citizens for their political or social activities during the period between 15th December 2000 and 23rd January 2005 (the second term of office of President Leonid Kuchma), and between 1st April 2010 and 1st April 2014 (the rule of Viktor Yanukovych);
- were involved in any falsifications of election results.
The act provided for the establishment of an independent Lustration Committee in the form of an office qualified to conduct lustration, and detailed its powers and tied its term of office to the term of office of the Verkhovna Rada.
On 9th April 2014, the Chair of Ukraine’s Verkhovna Rada and the temporary head of state (until the presidential elections) Oleksandr Turchynov (who was, at the same time, one of the leaders of the Batkivshchyna party) suggested withdrawing all draft lustration acts and made a request to the chair of the Social Lustration Committee Yehor Sobolev to attempt to unify the proposed solutions. This, however, did not prevent the deputies Roman Chernehy (Udar) and Serhiy Kaplin (Udar) from registering more proposals, numbered #4678 and #4678-1. Thus, during the period between the end of February and beginning of April 2014, a total of 6 draft lustration acts were composed which were officially registered with the Verkhovna Rada. In addition, there were concepts by social activists from various local social committees (amongst which, only the bills drafted by the Kharkiv Human Rights Group represented by Yevhen Zakharov became considered drafts).
There was common understanding that Ukraine should commence the process of purification of government with a general review and verification of the administration of justice, deemed to be one of the chief hotbeds of corruption in the country. Hence, on 8th April 2014, the Verkhovna Rada adopted the act “Restoration of Trust in the Judiciary”, under which the Temporary Commission for the Verification of Judges was appointed.
The Commission was to consist of 15 members (appointed in equal numbers by the Supreme Court, the Verkhovna Rada and the Plenipotentiary of the Government for Combatting Corruption) and function for one year only, from the date of its appointment. The verification conducted by the Commission was to concern cases of breaking the judicial oath as regards, amongst others, the violation of the principles of objectivism and impartiality of judgments. For this purpose, the verification was to apply, in particular, to their conduct as regards procedural and substantive laws.
A report on individual verification was to be sent to the Higher Judiciary Council in order for it to make a decision on the career of the judge concerned. The Council would have the authority to decide whether to permit the judge to maintain his position, persuade him to retire or – where applicable – initiate prosecution proceedings. In practice, however, the Higher Judiciary Council was never constituted as the bodies responsible for appointing its members did not undertake the formalities (decision-making blockade of the Parliament and of the President).
SOCIAL LUSTRATION COMMITTEE AND ITS ACTIVITY
On 26th February 2014, Arseniy Yatsenyuk who was entrusted, by the Verkhovna Rada, with the mission of forming a government after the fleeing of President Yanukovych and the collapse of the governing coalition of the Party of the Regions and the communists, nominated Yehor Sobolev, the well-known investigative journalist and one of the leaders of the social protests on the Maidan, as chair of the Ukrainian Lustration Committee. Sobolev was presented in public on that same day together with the other members of the new government (Cabinet of Ministers) during a gathering at the Kiev Maidan. At the same time, the Lustration Committee was never granted any official capacity (its functioning was not regulated by any legislation), and never received a budget allocation, and hence, no formal means by which to operate. This would indicate that the actual purification of government was not particularly high on the agenda of the new Ukrainian authorities.
Despite the lack of funds and legal grounding for its operation (having only the status of a non-formal social organisation), relying on the commitment of social activists, the Lustration Committee continued to work on promotional and informational campaigns on lustration in society and to exert pressure on politicians (often in the form of loud manifestations at the Verkhovna Rada and other bodies) to develop its mechanisms, implement them, and – from the beginning of April 2014 – on the formulation of one compromise-based proposal of the lustration act to follow up on the request made by the Chair of the Verkhovna Rada, Turchynov.
The Lustration Committee consists of lawyers working voluntarily, civil activists and journalists. Over time, it has also won the support of a group of Ukrainian deputies led by the non-associated deputy Yuriy Derevyanko (elected to Parliament in a one-mandate region as the representative of the niche party, the Change Front). The pro-lustration campaign was actively supported by various civil initiatives, often originating from the social movement of EuroMaidan (such as AutoMaidan led by Serhiy Koba) and non-governmental organisations (including the Open Dialogue Foundation). In addition to the widespread support and personal popularity of its head, Sobolev, the advantage of the Committee was also in regular and intensive communication with society through social media and press briefings organised at the Ukrainian Crisis Media Centre.
The Committee conducted pro-lustration campaigns under the slogan “Pure Government”, having its regional representatives in the individual districts of the country.
The Committee’s members and activists encountered attempts aimed at exerting pressure on them as well as attempts to torpedo or limit their activities more than once, usually in the form of threats. On 13th June 2014, so-called ‘unknown perpetrators’ broke into the Kiev apartment of the parents of the wife of Yehor Sobolev, head of the Social Lustration Committee. The perpetrators – apart from leaving clear traces of their presence in the form of general mess and damage to the property – did not take anything, even leaving a laptop behind. An intensive and extremely brutal defamation campaign was conducted against lustration and Sobolev, with claims that he was of Russian origin, spied for Russia and was intentionally devising ineffective lustration solutions in order to provoke internal conflicts and weaken the state at a time when it is striving to stave off Russian aggression.
ACT ON “PURIFICATION OF GOVERNMENT”
On 12th June 2014, the first draft of the lustration act prepared by the Social Lustration Committee was presented publicly for the first time.
The first unifying draft law stipulated, amongst other things, that each state official or a candidate for a public post should undergo a polygraph test. As with the parliamentary drafts, the decision of the verification commission was automatic and did not offer any opportunity to appeal through a court.
As a consequence of discussions on the draft and critical opinions received from experts from both Ukraine and abroad, the draft was amended with the most controversial provision, regarding lie detector testing, having been deleted.
The second draft act proposed by the Lustration Committee and registered on 24th July 2014 was a political compromise between the proposals of Svoboda, Batkivshchyna and UDAR, whilst the suggestions made by the Kharkiv Human Rights Group (postulating a reduction in the group of officials to be lustrated and creation of an independent lustration body) were not taken into account at that stage. The idea of appointing an institution, independent of the government, to take charge of lustration upon an initiative of the parliamentarians supporting the lustration was abandoned amidst arguments that amendments needed to be made to the Constitution and significant costs would need to be incurred by the country struggling in the face of a severe crisis.
The key concepts of this draft act, adopted by the Verkhovna Rada at its first reading on 14th August 2014, envisaged:
- verification carried out by the National Civil Service Agency which, since 2011, has been an independent institution having a special status. Appointed in 1994, the Agency supports the state’s personnel policy and continued improvement of the competences of public officials; its chair is appointed by, and reports to, the Prime Minister;
- each unit of the state administration, including bodies of territorial administration, had the task of setting up its own verification commission with the head of each office concerned responsible for supervising the process; information about the verifications was to be posted on the website of the National Civil Service Agency;
- verification along three paths: 1) for corrupt practices during the regime of Viktor Yanukovych, 2) for actions against the participants of EuroMaidan at the turn of 2013/2014, and 3) widely understood collaboration with the KGB;
- in financial (anti-corruption) terms – lustration comprising overall verifications of the income of the subjects, and all financial assets of their first and second-degree family members;
- potential for appeals to be filed with the administrative court against the lustration decision.
In accordance with the regulations of the Verkhovna Rada, during the two weeks between the votes in the first and the second readings, amendments to the draft could be proposed. An amendment could be submitted by one of the deputies – initiators of the draft – one or more deputies in general, or by social committees involved in the work on the law.
Social consultations intended to garner the opinions of activists and experts were carried out twice: on 26th August and 2nd September 2014.
The proposed postulations included, above all, calls to simplify the verification procedure, enhance its transparency, reduce the time period of prohibition to perform public functions and, most importantly, appoint an independent institution responsible for verification. A detailed discussion of the recommendations intended to set the direction for modifications of the lustration act, developed by international experts engaged by the Open Dialogue Foundation, can be found in Annex No. 1 “Proposals of Amendments to the Ukrainian Act ‘On Purification of Government’ adopted at the first reading on 14th August 2014 and the remarks on the act, adopted in whole” to this report. The remarks made by Ukrainian experts are discussed in the section entitled “Controversies”.
On 16th September 2014, under great pressure from society, the Verkhovna Rada finally voted in favour of the act on “Purification of Government” in its third draft (following numerous amendments). Attempts were being made throughout the day to put the act to a vote – each time the quorum was not present. It was only the fifth attempt that proved successful when, late in the afternoon, the act was included in the agenda of the Parliamentary session and voted on within ten minutes. At the same time, mass protests went on throughout the day in front of the building of the Verkhovna Rada with protesters demanding that the law be adopted. From the morning, tyres were being stacked and Hrushevskiego Street was blocked. The protests reached fever pitch in the latter half of the day when tyres were set alight and the deputy representing the Party of the Regions, who had become infamous for initiating the January acts on criminal sanctions against the Maidan protesters (so-called ‘law on dictatorship’), was thrown into a rubbish bin as he was leaving the Rada building. Despite its adoption by the Rada, the provisions of the act remained secret to the public until as late as 25th September 2014 when it was published on the Parliamentary website.
On 25th September 2014, Oleksandr Turchynov, Chair of the Verkhovna Rada, signed the act and submitted it for the President to sign.
According to the final wording of the act, lustration in Ukraine is to be based upon the following principles:
- the process of verification will be supervised by the Ministry of Justice;
- the head of each unit of public administration will be accountable for the verification of their institution;
- each candidate vying for a position in public administration covered by the act will be obliged to make a lustration declaration in which they will provide information about the sources of their income and other matters required by the law, such as active involvement in actions against EuroMaidan participants;
- the Social Lustration Council will be set up at the Ministry of Justice to support and control the Ministry’s work on lustration; at the same time, the act does not precisely specify the body responsible for the appointment, the procedure for its appointment or the scope of the Council’s responsibilities;
- the positions to be subject to lustration have been limited to three top levels of public officials throughout state administration, notwithstanding elected positions. According to the report of the Council of Europe, which supplements Resolution 1096 and the case law of the European Court of Human Rights, elected positions should not be subject to lustration because the procedure of election by society is considered to constitute a sufficient safeguard. However, in the Ukrainian political context, where the non-transparent electoral law enables the voting for party lists only (without voting for a specific candidate for election to the Parliament), such a solution raises major concerns.
DEVELOPMENTS AFTER THE ADOPTION OF THE ACT BY THE VERKHOVNA RADA
After its adoption and signing on 25th September 2014 by the Chair of the Verkhovna Rada, in accordance with the procedure, the act was sent to be signed by President Petro Poroshenko, who, according to the law, has 10 business days to do so.
Despite his initial objections (the President claimed that lustration was an unsuitable solution for Ukraine in view of the military conflict, and instead of lustration, it was better to introduce comprehensive anti-corruption mechanisms), on 9th October 2014, Petro Poroshenko signed the act. On Wednesday, 15th October 2014, it was officially published in the official journal and came into force on the same day. The absence of even a minimum vacatio legis period to enable the preparation of state institutions to implement its provisions was one of the reasons for criticism voiced by experts.
On 3rd October 2014, it was confirmed that Yulia Levochkina, deputy from the Party of the Regions (and a sister of the influential head of administration of President Yanukovych, Sergey Levochkin) performing, on behalf of the Verkhovna Rada, the function of deputy chair of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe, sent the act “On Purification of Government” for an expert opinion by the Venice Commission (European Commission for Democracy through Law which is an advisory body of the Council of Europe). Even though the Commission’s opinion has no effect on national law, this move stirred great emotions in Ukraine where the opponents of lustration gathered around the politicians removed from power (from the Party of Regions, the Communist Party and some of the independent deputies) used it to form a basis for asserting that the act was not in conformity with international law and would be annulled.
In actual fact, the Venice Commission will set up a group of experts consisting of specialists in constitutional and international law, to examine the act for conformity with the guidelines of European law, with particular emphasis to be placed on Resolution 1096 (1996), and its logical consistency and overall legislative quality.
CONTROVERSIES AND SOURCES OF CRITICISM
After the act on “Restoration of Trust in the Judiciary”, the act “On Purification of Government” is the second most frequently attacked by the opposition and the circles associated with the former Party of the Regions. Politicians and activists associated with the Opposition Bloc which originates from this party (and which won 9.43 % of the votes in the parliamentary elections on 26th October 2014; its leader is currently Yuriy Boyko, who in the past, was Deputy Prime Minister and Minister of Energy, considered to be a close associate of the deposed President Yanukovych), are actively working on paralysing both acts; announcing an appeal against them with the Constitutional Court, and lobbying actively in international institutions, in the European Union in particular, to prove that the very idea of lustration, including the Ukrainian lustration mechanisms, are bad.
Meanwhile, the law is already producing its first effects. There is a provision on the absence of drawing negative consequences against people who resign from their position upon their own initiative. On 8th October 2014, this right was exercised by the acting Minister of Economy Anatoliy Maksuta. On 16th October 2014, on the first day after the lustration act came into effect, Prime Minister Arseniy Yatsenyuk, signed his consent to the termination of employment relationships of 39 people from his administration.
There are also important persons critical of the adopted act, criticisms which are based on substantive premises. They originate mainly from a group of experts and initiators of the lustration process in Ukraine, initially engaged in the work of the Sobolev’s Lustration Committee, who subsequently submitted their resignations as an act of dissent against the direction which had been chosen.
Some of the most critical analyses were published by Leonid Antonenko, a prominent Ukrainian lawyer, actively engaged with the working group at the Ministry of Justice for the implementation of anti-corruption reforms. Antonenko’s primary line of criticism is based on the assertion that the act – contrary to the intentions declared by politicians and social expectations – does not target the most prolific criminals of the former regime in any way.
Other significant remarks made by Leonid Antonenko were about the absence of the appointment of a central, independent body which would be comprehensively in charge of lustration, its decentralised nature and particularly the fact that it is the head of each public institution who is to be responsible for conducting lustration “within their own organisation”, may lead to widespread arbitrariness and create opportunities for manipulation. This is confirmed, in a way, by the open statement of Tetyana Chechetov, head of Kharkiv City Hall who asserted that she could not identify persons in her office who would qualify to be covered by the act. Antonenko also points to the necessity to lustrate parliamentarians and the ideological nature of the list of former positions. The holding of said positions prompts a negative lustration decision; she notes that such a decision should be made according to specific instances of guilt and not the fact of membership itself in a specific managerial category.
Critical opinions were also formulated by Maksym Cherkasenko, another former member of the Lustration Committee, who points to the fact that the act in its current form does not meet the standards of international law. Like Antonenko, Cherkasenko postulates the establishment of an independent institution to conduct lustration in an organised and centralised manner, which would fulfil, to a greater degree, the guidelines of the Council of Europe. The expert also calls for particular attention with regard to the matter of providing due protection of privacy and the avoidance of so-called ‘wild lustration’.
The act is also criticised publicly by Yevhen Zakharov, head of the Kharkiv Human Rights Group and a well-known activist engaged in supporting the protests on the Maidan. Zakharov’s main argument relates to the violation of the regulations of the Verkhovna Rada which took place during the vote on the act. Besides, he points to, as do other experts, the absence of an independent body to deal with the lustration and breaches of privacy of third parties by reviewing the financial situations of too broad a group of people (however, the rationale behind the draft was to eradicate situations, typical of Ukraine, whereby a public official transfers their property to more distant family members). Zakharov is also asking a pragmatic question about new candidates for positions at state offices (lustration implies an urgent need to organise a new, effective process of educating highly- qualified public officials).
Circles of Ukrainian economists have adopted a cautious attitude towards the process of implementation of the act. Economists (often in articles in Forbes Ukraine) ask the question: what rules will be followed when selecting candidates for positions vacated over a short period of time, pointing, at the same time, to the need to carry out a wide reform of the civil service.
In the opinion of the Prosecutor General of Ukraine, Vitaliy Yarema, the act violates the Constitution and will result in a huge number of complaints filed with the European Court of Human Rights in Strasbourg due to a breach of the rule of individual legal liability. It is worth noting that in light of the declarations made in public, the Public Prosecutor does not support lustration in general, and in societal perception, the prosecutor’s office and other investigation bodies are amongst the most corrupted structures in the country and consequently, they oppose the introduction of any verification mechanisms.
CURRENT SITUATION AND PROSPECTS
Currently (as of 17th November 2014), the Ministry of Justice is preparing for the implementation of the law which requires the elaboration and adoption of an implementation regulation, detailing the procedures and competences of the particular internal structures, created intentionally for the purposes of lustration within the Ministry. The implementation regulation aims to set down the rules for the operation of the Social Lustration Council at the Ministry.
The lustration law has already started to function in practical terms due to the provision on automatic dismissal from work of people in managerial positions at public administration offices and the administration of justice, if they occupied positions during the time when President Viktor Yanukovych was in power for at least a year and did not resign on their own initiative. The register of these people is available from the official website of the Ministry of Justice. The overall number of people dismissed as of 12th November 2014 was 350.
The first appeals have already been filed too. A prosecutor from the city of Sumy has filed a suit with the administrative court challenging his own lustration and asserting that he “has not violated human rights, has nothing on his conscience and does not understand why he is losing his job”.
Due to uncertainties in terms of interpretation concerning the application of certain provisions of the act, Ukraine’s Foreign Intelligence Service was the first state institution to request an interpretation from the Constitutional Court. The Prosecutor General, on the other hand, stated that the act should be challenged in its entirety as it is contrary to the Constitution (which, however, he has not done to date). Similar declarations were also heard from those within judicial circles (Ukrainian law provides the highest-ranking judges with such an opportunity).
Currently, what will be of key importance for the further course of the lustration process in Ukraine will be the regulation of the Minister of Justice, now being drafted, which details the functioning of the verification procedures, an assessment by, and recommendations from, the Venice Commission and their reception domestically, as well as the position of the President, the new government and the parliamentary majority in the face of potential amendments to the act. Also, the decisions of the Constitutional Court (especially after the receipt of the announced complaints, if any) will also have a considerable effect.
In the more distant future, also the case law of the European Court of Human Rights in Strasbourg will be important if Ukraine is sued by persons claiming to be victims of the lustration process.
From the viewpoint of international support, the international community should become an active observer of the lustration process in Ukraine. One of the postulations even envisaged the participation of international observers in the lustration process at the institutions conducting and supervising the verification, modelled on the concept of observers – members of observation missions during elections. This was intended to enhance their transparency and trustworthiness – through the minimisation of the use of allegations of abuse of verification as a weapon for fighting political opponents.
A similar controlling role is performed effectively by civil society whose further development requires support in financial terms and in the field of development of leaders’ competences. A critical area will be the preparation of new personnel to suit the needs of public service, in the form of training, seminars, grants, study visits, etc., but, primarily – a modern institutionalised system of education, at the centre of which should be a reformed Higher School of Public Administration. In this regard, it seems advisable to learn from the experiences of countries such as France (École nationale d’administration) and Poland (National School of Public Administration).
ACTIVITIES OF THE OPEN DIALOG FOUNDATION
Since March 2014, the Open Dialogue Foundation has been actively supporting the Lustration Committee with expert opinions and information activities concerning lustration, undertaken outside of Ukraine. We have organised or co-organised several thematic conferences and study visits to institutions which deal with lustration, historical memory, combatting corruption, organised crime and state security in EU countries which underwent systemic transformation post 1989. The Foundation has also organised several informational meetings for local communities of western and southern Ukraine on the theme of lustration and the Polish lustration experience.
On 1st April 2014, the Kozatskiy Hotel in Kiev hosted the first international conference on lustration “Lustration: Solutions for Ukraine”, which gathered Ukrainian politicians, lawyers, journalists and civil activists. Discussions on internal Ukrainian affairs were accompanied by speeches by foreign experts (many of whom are professionally engaged with widely understood problems of lustration) from Poland, Czech Republic, Georgia, Estonia and Lithuania, who gave presentations on lustration mechanisms in their respective countries. An expert from Slovenia was also present who, referring to the country’s experience, pointed to the serious threats Ukraine shall face in the event that lustration is not carried out
Between May and June 2014, a series of study visits were organised with the participation of the Chair of the Social Lustration Committee Yehor Sobolev who, upon an invitation from the Foundation, visited Paris where the concept of lustration in Ukraine was presented to, amongst others, French parliamentarians, as well as the European Parliament in Brussels, the Council of Europe in Strasbourg, and Prague where, inter alia, a meeting was held with Dr Pavel Žáček, the founder and first president of the Czech Institute for the Study of Totalitarian Regimes, and Petruska Sustrova, Czechoslovak dissident and co-author of the Czech lustration law, then responsible on behalf of the Ministry of Internal Affairs for the Settlement of the activities of security services during the communist period.
In June 2014, upon an invitation from the President of the Polish Institute of National Remembrance (IPN), in cooperation with the Foundation, a series of meetings were held in Warsaw, with the management of the IPN and IPN’s Lustration Bureau, the Prosecution General, the Central Anti-Corruption Bureau and independent experts amongst others.
The result of the study visits were some of the verification solutions and mechanisms contained in the first draft act prepared by the Lustration Committee on the basis of foreign experience. The Foundation has translated it into eight European languages.
Furthermore, the opinions and expert opinions by foreign experts were gathered on an on-going basis by the Foundation’s coordinators and, after elaboration, passed on to the Lustration Committee, deputies to the Verkhovna Rada and other interested parties. This contributed significantly to improving the transparency of the legislative drafts.
The results of the work of the team of experts were presented at a press conference on 22nd August 2014 in the form of a list of guidelines to be followed by further work on the act in order for it to fully meet the requirements of international law and the guidelines of the Council of Europe (in light of the many experts, in its current form the act may be challenged).
On 11th September 2014, together with the USAID FAIR Justice Project, another conference was organised on “Lustration: International Experience and Perspectives in Ukraine” to increase the exchange of knowledge between the circles involved in the legislative process and foreign experts, and summarise the Ukrainian work to date on lustration.
The result of the activities of the Social Lustration Committee carried out between March and September 2014 can be deemed a huge political success. Lustration in Ukraine has gone all the way from a social postulation through the legislative path down to its implementation; it has also started to yield its first effects in the form of numerous resignations of, in all likelihood, strongly corrupt public officials. Effective influence on the political elites reluctant to actually adopt the act was possible through, inter alia, the exertion of strong political pressure through the organisation of manifestations at the Verkhovna Rada. The mobilisation of society was also used as an instrument to press for dismissals and the initiation of disciplinary and prosecutor proceedings in respect to the most compromised officials associated with the former regime, also on a local level.
It is worth noting that at the outset, in the Verkhovna Rada, there co-existed six different mutually exclusive legislative drafts developed by several conflicting circles, and the divisions ran across not only political parties but existed amongst experts too. Neither President Poroshenko (being of the opinion that elections are the optimum form of lustration) nor Prime Minister Yatsenyuk were amongst the supporters of lustration initially. Today, however, lustration is one of the chief items on the agendas of most political parties represented in the Parliament after the parliamentary elections (October 2014).
The most serious weakness of lustration in Ukraine is the act itself. Regrettably, many of the recommendations made by international experts have not been taken into account, and the act “On Purification of Government” should, in our view, be significantly modified, especially in the area of enforcement of individual accountability in the verification process and the creation of a dedicated independent institution (with the need to amend the Constitution as the necessary prerequisite remaining to be discussed; this, however, restricts considerably the opportunities for that).
Nevertheless, the provisions of the act have been the subject of uncountable negotiations between political groups and numerous factions within them, not only in order to win the support of the parliamentary majority but even to ensure the quorum during the vote (which is common practice in the Ukrainian Parliament). Since in its essence, lustration imposes additional regimes and aims against the interests of a large portion of the political class, its adoption by the Parliament at the time was only possible owing to a far-reaching compromise. A consequence thereof was, amongst others, the exemption of the deputies from its applicability.
Ukraine is facing the urgent need of implementing systemic reforms. At the same time, the post-revolution period, the early presidential and parliamentary elections and, above all, the challenging of the territorial integrity and the sovereignty of the state in itself by Russia, are not favourable factors. Despite these negative circumstances, lustration has become a fact. The act also performs an important preventive and deterring role. The verification mechanisms are far from perfection, but can become a good starting point for further work. For comparison, announced as one of the keys to improving the functioning of the state, the decentralisation reform (the responsibility for the implementation of which was assumed by Deputy Prime Minister Volodymyr Groysman) has not gone so far beyond the stage of study and analysis.