The Venice Commission on Dec. 12 toned down its criticism of Ukraine’s lustration law and agreed with Ukrainian authorities to improve it.
Critics of the legislation argue that it contradicts the Constitution and international standards, while supporters say that reforming Ukraine and reining in corruption will be impossible without the law.
The Venice Commission, a legal advisory body of the Council of Europe, issued a statement on Dec. 12 following talks with Ukrainian Justice Minister Pavlo Petrenko, Yegor Sobolev, head of the non-governmental Lustration Committee and chairman of the Verkhovna Rada’s anti-corruption committee, and Leonid Yemets, a co-author of the lustration law. They went to Venice earlier this week to persuade the commission that the law was necessary and legitimate.
Sobolev and Yemets were not available by phone.
“The Venice Commission has drastically changed its previous conclusion on the lustration law after two days of talks with our delegation,” Petrenko said on Facebook. “Lustration will happen!… Certain people’s plans to discredit the law by using the respectable European institution have failed.”
The Venice Commission’s statement contained milder language than a draft previously considered by the commission and obtained by the Kyiv Post.
The commission said that “the law in its current form contained several serious shortcomings and welcomed the readiness of the Ukrainian authorities to amend the law in line with the Ukrainian Constitution and European standards.”
“The Venice Commission recalls that lustration does not constitute a violation of human rights per se, as a democratic state is entitled to require civil servants to be loyal to the constitutional principles on which it is founded,” the commission said. “However, in order to respect human rights, the rule of law and democracy, lustration must strike a fair balance between defending the democratic society on the one hand and protecting individual rights on the other.”
The experts also said that the role of lustration should be a “specific and narrowly tailored one”; it might complement other means of ensuring justice like criminal law but can never replace them. While the general principles governing the lustration process are all enumerated in the law in line with European guidelines, the law does not live up to these principles, the commission said.
Commenting on the experts’ criticism, Yury Derevyanko, a member of the Verkhovna Rada responsible for amending the law, said by phone that Ukraine was represented at the commission by people who are themselves subject to lustration, Party of Regions members Serhiy Kivalov and Volodymyr Pylypenko. “They are doing their best to completely destroy the lustration law,” Derevyanko said.
Kivalov gained notoriety for heading the Central Elections Commission during the 2004 presidential election, when voting fraud led to the Orange Revolution.
Sobolev and Yemets represent a different position, Derevyanko said. “It’s important for the commission to see the objective picture.”
Derevyanko said, however, that no law was perfect and that the lustration law could be amended.
The provision on firing former KGB employees and KGB school graduates could be modified, he said. The problem is that strictly enforcing the law would lead to most of Security Service and Border Guard employees being fired, he added.
The provision on firing former communist functionaries is also debatable, Derevyanko said.
The commission said that it found questionable the application of the law to a period stretching from the Soviet period to former President Viktor Yanukovych’s term and urged Ukraine to fix an end to the lustration process in the future to avoid turning it into a “never-ending story.”
Applying lustration measures to top Yanukovych-era officials would ultimately amount to questioning the actual functioning of the constitutional and legal framework of Ukraine as a democratic state governed by the rule of law, they said.
Derevyanko disagreed. “What’s the point of the law if (Yanukovych-era officials) are saints?” he said. “Then they did everything right.”
The experts said that the list of positions to be lustrated should be reconsidered, as lustration must concern only positions which may genuinely pose a significant danger to human rights or democracy.
The Venice Commission also advised against including judges in the lustration law, given that they are the object of another specific law adopted in April. But Derevyanko said that the new lustration law, unlike the April one, would subject judges to property lustration, and it would be unreasonable to exclude them from the process.
Another issue raised by the commission is that “guilt must be proven in each individual case, and cannot be presumed on the basis of the mere belonging to a category of public offices, and therefore the criteria for lustration should be reconsidered.” The lustration law should specifically provide for the guarantees of a fair trial; court proceedings should suspend the administrative decision on lustration until the final judgment, the experts said.
The Venice Commission also recommended removing the responsibility for carrying out lustration from the Ministry of Justice and entrusting it to a specifically created independent commission, with the active involvement of the civil society.
Kyiv Post staff writer Oleg Sukhov can be reached at [email protected].
