Ukraine's lustration law, signed by President Petro Poroshenko in October, was supposed to be more wide-ranging and comprehensive than in most of Eastern Europe but so far the results have been meager.
Poroshenko himself and government agencies have been accused of dragging their feet on the law’s implementation, while courts have already challenged the constitutionality of the legislation. Critics have also argued that some key aspects of the law like the lustration of those who worked under former President Viktor Yanukovych, the lustration of judges and property lustration would not work in practice.
The law seeks to fire top Yanukovych-era officials, agents and employees of the Soviet Union’s State Security Committee, or KGB, Soviet communist functionaries, those implicated in corruption and judges who made unlawful decisions.
Obstacles and sabotage
One of the major blows to the law was dealt in November, when a Kharkiv court canceled the lustration of Volodymyr Sukhodubov, a former deputy prosecutor of the Kharkiv Oblast.
Meanwhile, the Foreign Intelligence Service challenged the law at the Constitutional Court in October. This decision could not have been made without the president’s approval because the service reports to him, Leonid Antonenko, a counsel at Ukraine’s Sayenko Kharenko law firm and the author of an alternative lustration bill, told the Kyiv Post.
The Supreme Court and the Supreme Specialized Court have also disputed the law’s legitimacy.
Yegor Sobolev, an author of the law who headed non-governmental Lustration Committee until his election to parliament, said Poroshenko apparently lacked political will to enforce the lustration law, citing the example of Kirovohrad Oblast Governor Serhiy Kuzmenko, a former member of the Party of Regions.
In September Kuzmenko was appointed governor, and in October the Cabinet asked Poroshenko to fire him because he held top regional government jobs under Yanukovych. However, Kuzmenko is still in power.
The Presidential Administration did not respond to a request for comment.
Ukriane’s Security Service (SBU) has not been eager to implement lustration either. Sobolev said that about 50 people had been fired from the agency, far less than expected. Valentyn Nalyvaichenko, head of the service, bypassed the ban on hiring graduates of KGB schools by saying that he studied at one but did not graduate.
The Justice Ministry has also been accused of sabotaging the law.
A complete list of Yanukovych-era officials to be fired was supposed to be compiled in 10 days after the law came into effect on Oct. 16, Antonenko said.
“Very simple mathematics gives us grounds to see 5,000 to 10,000 people on the list,” he argued, referring to the number of government jobs subject to lustration under the law.
As of Dec. 8, the list includes only 357 people, according to the Justice Ministry’s site. But the ministry, Sobolev and Leonid Yemets, a lawmaker and co-sponsor of the law, argued that the list compiled within 10 days was not supposed to be exhaustive and would subsequently expand.
Antonenko also said that the list did not include a single big name like former Prosecutor General Viktor Pshonka, former President Viktor Yanukovych, former Prime Minister Mykola Azarov and former presidential chief of staff Serhiy Lyovochkin. Sobolev said, however, that they were lustrated automatically because they do not hold government positions now and were not supposed to be included in the list.
The Justice Ministry declined to comment on the issue in a response to a request sent by the Kyiv Post.
Wholesale approach
Antonenko attributed problems with the law’s implementation to what he believes to be an excessive number of people subject to lustration.
In contrast with Ukraine, in most Eastern European countries, except the Czech Republic, lustration was only applied to agents and employees of secret services, not party functionaries or government employees. In most of those countries, the process has encountered major legal obstacles, with courts repealing some of the lustration laws.
The Czech Republic was an exception because its constitution was changed in a way that facilitated comprehensive lustration, Antonenko said.
When Ukraine’s Justice Ministry began enforcing the law, it faced the unfairness and impossibility of enforcing this “wholesale approach,” he argued.
“I interpret it as selective justice,” he said. “They fired those whom they deemed proper to fire and made exceptions for others.”
Antonenko also argued that new officials replacing those lustrated did not hold a moral high ground, unlike West German officials in East Germany when the countries merged in 1990.
“There is no guarantee they will be different,” he said. “The same system of coordinates remains.”
One problem with the law is that, while in Eastern Europe lustration was applied to those who posed a threat to democracy, in Ukraine it will also apply to those who pose no such threat, for example heads of regional governments’ economy departments, Antonenko said.
The implication is that such officials are “likely” to be corrupt, he said. “But the concept ‘likely’ contradicts the rule of law,” he added.
Property lustration
Property lustration, which is expected to be a major tool for fighting corruption, envisages firing officials who own a lot of real estate that cannot be explained from their declarations.
As of Dec. 8, 895 people are being checked by the Justice Ministry both in terms of property declarations and for their links to the KGB and the Soviet Union’s Communist Party.
But Antonenko argues that the procedure will be purely formal and will not help fight corruption because the origin of officials’ property will not be checked.
“We shouldn’t expect any discoveries there because the old rules (for property declarations) were written by the (Yanukovych) government,” he argued.
The new anti-corruption law passed by the Verkhovna Rada in October envisages more thorough inspections of officials’ property but the first declarations under that law are to be filed in April 2016, and by that time officials will be able to hide their property, Antonenko said.
Yemets agreed that the existing procedures for inspecting officials’ wealth were insufficient. He said that constitutional changes and changes to tax law should be made to improve this, and the yet-to-be-created Anti-Corruption Bureau would address this issue.
Sobolev also said that it was hard to track the sources of officials property and suggested passing new measures like open property registers to make property lustration more efficient.
Earlier this year Antonenko wrote an alternative version of the lustration bill that envisages strictly inspecting the origin of officials’ property.
Similar measures have been implemented in many European countries as part of anti-corruption laws, though they were not called “property lustration,” with Antonenko’s bill based specifically on Romanian experience.
“We should find out where their children study, how often they cross the border and for what purpose, where they stay while abroad etc,” Antonenko said.
The bill also seeks to introduce the concept of market value for officials’ property, which will also make it easier to reveal corrupt schemes.
Antonenko’s bill was submitted to the Verkhovna Rada but only one line from it was incorporated into the final lustration law, with most of it being discarded.
Another clause that will not work is the one on firing judges who made unlawful decisions during the EuroMaidan Revolution, Antonenko said.
He added that the current lustration law effectively blocked this possibility, compared with the previous law on the lustration of judges, passed in April. The process will be obstructed because, under the new law, such cases will be considered by court chairmen, not an independent commission, he said.
The Justice Ministry declined to comment on the issues in its response to the Kyiv Post.
Kyiv Post staff writer Oleg Sukhov can be reached at [email protected].
