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06.10.2014 | Yevhen Zakharov

Four reasons for vetoing the Law ‘On Cleaning up the Authorities”

   

A besieged parliament adopted a lustration bill on Sept 16, after a third try.  This is viewed as a great victory for democracy, but in fact is a great defeat. In Ukraine the right of the fist is becoming dominant, and the force of the law has fallen to zero. No good aim justifies appalling means of achieving them when excessive force, threats and degradation of opponents are applied.  Throwing people into rubbish banks cannot be called anything but a fascist action. All of this was used to pass a disastrous law which in fact should have been nipped in the bud since the consequences will be extremely bad.  The reasons for this, in my opinion are the following:

Infringements of the procedure for considering a draft law

It is not known what the MPs passed since they had not seen and did not have the text of the law for the second reading. Around 400 comments were sent to the profile committee however these were not considered in accordance with the regulations. The text of the law only appeared on Sept. 26.  This way of creating laws is nothing but the collapse of parliamentarianism. This alone should be enough to return the law for new consideration in accordance with parliamentary procedure.

An excessively wide range of people who will undergo lustration

According to Council of Europe recommendations, lustration should only be applied to posts where the activities involve a threat to democracy and human rights. However the number of people who fall under this law, according to our preliminary estimates, just among the managerial staff in state bodies comes to over half a million people, this being clearly unwarranted. The staff of some state institutions, under this law, would have to be totally changed. If all these people are dismissed, who will replace them?  When the country’s main problem is the lack of sufficient modern and educated people , capable of working on a contemporary level, creating and understanding new things, such a total dismissal without knowing where new staff will be found or whether they’ll be better than the old ones is not justified. The use of lustration according to such a model will inevitably lead to the use of discretionary powers, and as a result, to selective prosecution, which is unacceptable.  What is more, such mass dismissal without a change in the system of the institutions’ work does not make sense. There has never been such mass lustration in any country.

The lack of an independent body for carrying out lustration

The Council of Europe’s Guiding Principles on carrying out lustration in line with the principle of rule of law, adopted by the Parliamentary Assembly of the Council of Europe, state that lustration may only be carried out by an independent, specially created body. This makes it possible to avoid many problems when carrying out lustration such as varying interpretation and application of the law; selective prosecution; the passing of politically motivated or other biased decisions, etc. The members of lustration commissions in other countries where lustration has been carried out are as a rule appointed by people with considerable authority in society since it is important to legitimize lustration in the eyes of the public. The lack of independence must logically undermine faith in this process, and the question of whether a person is liable for lustration will be determined in a manner that arouses serious doubts.

According to the law passed, decisions regarding lustration will be taken by the Justice Ministry on the basis of checks which will be carried out by the management of the government bodies where the person undergoing lustration works in.  In our conditions this procedure will encourage abuse and removal of ‘inconvenient’ workers.

Infringements of the right to privacy

International human rights standards clearly stipulate the need to defend the right to privacy when carrying out lustration. Everything possible must be done to avoid possible unfounded public accusation of a person. Other countries’ experience provides vivid proof of the need for an extremely careful approach to circulation of personal information.

The law envisages the introduction of a single state register of people undergoing lustration procedure. Yet there is no public need to include such data if the person underwent a check and was found to not be subject to lustration. Divulgence of even the restricted range of data envisaged by the law is an undoubted infringement of the right to privacy in such cases. However divulgence of such data even for people who have been subject to lustration is, in our view, an unwarranted intrusion into a person’s rights. If we take into account that an investigation and its conclusions will be carried out by a government body that is not independent, then the circulation of their results without a judicial check is an unjustified infringement of the right to privacy. There is a strong likelihood that the data collected is wrong or inaccurate, and that therefore that a wrongful decision has been taken. If the conclusion is found to be unlawful, it will be quite difficult to restore the person’s reputation. Therefore such procedure immediately creates a systemic problem for the observance of the right to privacy.

We are not the first people to be in such a situation and there is always a need to find balance between the right to privacy and the public’s right to know that a person has undergone lustration procedure. In the Baltic states if a person themselves made a declaration admitting that they had had links with the KGB, this information became secret and the person him or herself resigned from their post. Information was printed only where a person had tried to trick the checking body.

Conclusions

In order to successfully carry out reforms the country badly needs, there must be agreement between all public groups. The law on cleaning up the authorities in the current form will, on the contrary, divide people and promote an increase in aggression, hostility within the country and damage to the country’s reputation abroad. Mass dismissal of public officials will not have a positive impact and will elicit countless applications to the European Court of Human Rights with resulting huge financial cost to the country. Lustration in Ukraine is needed, but according to other rules, ones that are in keeping with the Constitution, European Court of Human Rights case law in numerous lustration cases and other international standards. 

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