Concept framework for a law on lustration
Lustration
Lustration is the procedure of temporary restriction of the right to hold a list of posts set out by law in state bodies and bodies of local self-government in the event that a person has committed the actions envisaged by this law.
Body of power carrying out lustration
The lustration committee carries out policy in the sphere of lustration.
The committee is made up of 11 members, with the head of the committee being elected by the Verkhovna Rada for 5 years. The members of the lustration committee are elected by the Verkhovna Rada at the submission of it head, also for 5 years. The members of the lustration committee are guaranteed independence and may not be dismissed until they resign, are convicted of committing a crime or die. Seven of the election members of the lustration committee must have higher legal education.
Criteria for lustration
Lustration should be carried out according to the following criteria:
Having been in the leadership of regional committees of the Communist Party of the Soviet Union [CPSU] or Ukrainian Communist Party [CPU]; or the central committees of the CPSU and CPU; the regional committees of the Ukrainian Komsomol or its Central Committee up till August 19, 1991;
Having served in the fifth department of the KGB of the USSR; the KGB of the Ukrainian SSR or of other Soviet states as a member of staff or as a secret KGB agent;
Working for the Security Service of Ukraine [SBU] as a secret agent or secret employee;
Holding the post of president; prime minister; member of the cabinet of ministers; first, second or third category of public official posts, as well as posts equivalent; judge; MP; village or city mayor and deputies of local councils and carrying out the following actions:
Organizing and taking part in the rigging of the presidential elections in 2004;
Organizing and taking part in obstructing peaceful assembly during the period from 1 April 2010 to 22 February 2014;
Organizing and taking part in the persecution of people for their political or civic activities during the period from 1 April 2010 to 22 February 2014 through arbitrary detentions and arrests; initiation of criminal proceedings and the carrying out of investigative or operational activities;
Organizing and taking part in actions which resulted in losses to the state and local budgets in excess of 1 million UAH;
Action or inaction which led to violation of human rights as found by the European Court of Human Rights; the UN Human Rights Committee or other international institutions.
Range of posts
The Lustration Act covers persons holding or planning to hold the following posts:
President of Ukraine;
People’s Deputy [MP]; village or city mayor and deputies of local councils;
Prime Minister of Ukraine and members of the Cabinet of Ministers;
First, second or third category of public official posts as well as posts equivalent;
Judges;
Positions in the Prosecutor’s office with the rank of public justice adviser; public justice adviser 1-3 class; senior justice adviser and justice adviser; junior justice adviser;
Posts held by military servicemen of senior and higher office rank;
Members of electoral commissions.
The profile laws stipulate that a prerequisite for holding these posts is the lack of circumstances set out as lustration criteria.
Any person holding these posts or seeking to hold them shall submit a declaration regarding the lack of circumstances set out in the lustration criteria. Should these circumstances apply, the person shall not be entitled to hold these posts and must be dismissed within 10 days. if the person is seeking to stand for elected office, the Lustration Committee checks the person on the basis of the declaration submitted during the election campaign.
Any person may voluntarily submit a statement regarding the fact of circumstances set out in the lustration criteria. The person must at the same time resign from the post held and take on the voluntary commitment to not hold the relevant posts during the space of five years. In this case information about the person will not be made public and the decision regarding the person shall be secret.
Mechanisms for application
There are two mechanisms each of which has its advantages.
First variant | Second variant |
The Lustration Committee checks the declaration by itself or at the application of any person; The Lustration Committee considers a case regarding the submission of a false declaration. The person has the right to submit his or her evidence or comments. The Committee passes its decision which can be appealed in court within 10 days. The Committee’s decision may be examined by a regional court and higher court of appeal. The case may be examined according to general procedure or in separate specially created lustration chambers.
| The Lustration Committee checks the declaration by itself or at the application of any person; A lustration chamber is set up within a regional court, with Ukraine’s president appointing a separate judge. The case is examined by three judges at the submission of the Lustration Committee with observance of the standards for the right to a fair trial. The court ruling may be appealed in a high court according to appeal procedure with such a separate lustration chamber being formed there as well. The decision of the high court shall be final. |
Every person has the right to appeal against a lustration judgement in the courts with observance of the standards for the right to a fair trial.
A special lustration procedure is introduced for judges. The Lustration Committee checks judges when they are selected initially, and then when their indefinite tenure is being confirmed. For examination of judges who have violated human rights with their rulings an examination of such actions must be carried out in accordance with updated procedure of disciplinary proceedings for judges without participation of the Lustration Committee. This should be carried out by retired judges with public authority. This may be defined by this or a separate law.
Duration of lustration
The lustration procedure shall be carried out over a period of ten years.
Duration of the ban
In accordance with a ban by the relevant bodies a person can be banned from holding certain posts for 3-10 years depending on the person’s guilty and the assessment of their activities.
The most acceptable is a ban for 5 years.
Protection of private life
The judgement on lustration is made public only on completion of all domestic procedures for its appeal. The publication of the judgement shall contain a list of all the motives for the judgement. In the event that the person admits the relevant circumstances, this information shall be kept secret.
Explanatory note to the draft law on lustration
Justification
Lustration is a tool of transitional justice applied after transition from a dictatorship to democracy in order to protect democracy from a possible return to the past.
Lustration involves restriction of the right of certain stipulated categories of individuals to hold certain posts in the public service, including the right to hold electoral office.
Although lustration is not a punishment, in international law and the practice of the majority of countries, in is considered within the context of criminal law.
Lustration is not applied with respect to various types of actions which are classified as offences for which a person may face administrative or criminal charges.
The risks of lustration
Excessive interference in the private life of those suspected : according to international standards such interference is legitimate solely in the case of suspicion of committing a crime;
The application of lustration on the basis of falsified documents: many cases are known of false documents drawn up by the security services against a person;
The use of lustration for political purposes, especially in the case of vague criteria for its application; cases of corruption and blackmail are also likely through circulation of certain information about a person.
International law in this sphere
The European Convention for the Protection of Human Rights in the context of Article 6 (the right to a fair trial) and Article 8 (the right to privacy): the European Court of Human Rights has examined a number of cases regarding lustration in Poland, Slovakia, Latvia and other countries, formulating certain standards;
See, for example, ECHR judgements in the cases of Turek v. Slovakia, 14 Feb 2006 (Application № 57986/00), Moczyczki v. Poland, 14 June 2011 (Application № 52443/07), Czodyniczki v. Poland, 2 September 2008 (Application № 17625/05), Adamsons v. Latvia, 24 June 2008 (Application № 3669/03), Matijek v. Poland, 24 April 2007 (Application № 38184/03), Liubosz v. Poland, 14 January 2008 (Application № 37469/05), Rasmusen v. Poland, 28 April 2008 (Application № 38886/05), Gorny v. Poland, 8 June 2010 (Application № 50399/07) and others.
PACE Resolution № 1481 (2006) «On the need for international condemnation of the crimes of totalitarian communist regimes”;
PACE Resolution № 1096 (1996) «On measures aimed at eliminating the legacy of former communist totalitarian regimes»
Judgements of Constitutional Courts in various countries.
These standards can be summarized as follows:
The guilt of each individual must be individually proven;
Each person has all the rights to defence that they would have in the case of criminal prosecution including the right to have the case examined by a court;
Lustration can be in force only for a limited period of time;
Punishment should be restricted in time and be proportional and individually determined for each person (usually no more than 5-10 years).
Lustration may not be used with respect to the work of a person in legal entities of private law, trade unions, civic associations, political parties and businesses.
The body of power carrying out lustration
In accordance with international standards, lustration may be carried out solely by a body with the relevant guarantees of independence. In Ukraine, for example, these are the courts, the Human Rights Ombudsperson, etc. The Lustration Committee therefore should have the relevant guarantees of independence. It can be created through various procedure but the main thing is that its members cannot be removed from their posts. It would be best if parliament confirmed the candidacies submitted by the head of the committee whom parliament had previously appointed.
With respect to specification of the range of posts where lustration is applied
The given list covers all leading posts in the central apparatus and many at local level.
The Cabinet of Ministers Decree of 29 July 1991 № 114 «On approving Provisions for the service of rank and file and managerial posts within interior ministry bodies specifies the relation of orders to the ranks of a civil servant therefore in cases not indicated, one would need to use the table showing the relation between the orders and ranks.
The law cannot cover posts which are not within public law, that is, to posts in state or private enterprises, institutions and organizations.
Lustration criteria
Lustration criteria must be clear and foreseeable. They cannot contain value concepts. Lustration is not punishment for certain offences, and it cannot therefore follow merely for those acts having been committed. On the contrary, lustration should apply where it is impossible to establish specific offences. One cannot therefore write that it should be applied to all who committed human rights abuses during some period. Lustration is in fact possible according to objective criteria, for example, the post, form of activities or belonging to a certain organization.
Violation of these requirements entitles a person to turn to the European Court of Human Rights and have a good chance of winning their case.
In general the stipulation of clear criteria of recent time is the hardest element of this law.
Archive of National Remembrance
In parallel, an Archive of National Remembrance needs to be created. For this the relevant legislative base needs to be created and procedure envisaged for its creation.
Within the archive, the branch state archives of the SBU, Interior Ministry, courts and other elements in the part of the archive fund created before 1 December 1991 need to be merged, as well as archival material regarding political persecution up till 20 February 2014. This archive should be included in Ukraine’s archival system and access to these archives should be ensured on the basis of a separate law. It would be sensible to unit the Archive of National Remembrance with the Institute of National Remembrance (and then the name Institute of National Remembrance could be retained).