The term can be defined by the
limitation of the rights of individuals that belong to particular categories to
hold certain positions in state public service, as well as a limitation of the
rights of those individuals to be elected to certain positions.
Lustration is a compulsory
measure for the security of democracy in Ukraine, especially when considering
the contemporary situation in the country. Thus, the necessity of such measures
cannot be doubted.
This bill, which passed the
first reading on Aug. 14 in parliament, represents an attempt to unite other
legislative projects regarding lustration that were submitted to parliament in
the end of March-beginning of April.
Nonetheless, its method
appears to be rather populist and some of its positions are contrary to the
recommendations of the Council of Europe, the principles of international law
and, in addition, run contrary to the previous experiences of other countries
who cleansed their ranks when Communism fell.
Let’s highlight a few of the
most important issues regarding human rights and the rule of law. However,
other problems arise as well, for instance, issues related to public
administration.
The lack of an
independent agency administrating lustration
The authors of this bill
didn’t entertain the idea of developing an independent agency for
administrating the process of lustration. Instead the responsibilities were
spread to all the authorities, or, to be precise, the heads of governmental
authorities. The National Agency for Civil Service, the Central Election
Commission, the High Council of Justice, the Presidential Administration and
others were identified as key to the process. The bill does not indicate any
requirements that candidates must meet to become members of central or local
lustration commissions that would be created by the National Agency of Ukraine
on Civil Service.
Therefore, technically, the
majority of “cleansing” is imposed on the heads of the relevant authorities.
In relation to the guidelines
of the Council of Europe on lustration in accordance with the rule of law which
were approved by the Parliamentary Assembly of the Council of Europe,
lustration can only be processed by an exceptionally independent agency
specifically designed to take on the procedure. This allows avoiding a number
of issues throughout the process of lustration, such as various interpretations
and applications of the law, selective investigation, approval of politically
driven or other irrelevant decisions, etc. Lustration Commission members in the
other countries, where lustration was completed, were people who were respected
by the public because it is highly important to legitimize lustration in the
eyes of the people. The lack of independence would logically affect the level
of trust towards this process, and therefore, the question of whether an
individual is a subject of lustration or not would be decided in ways, which
would lead to a great degree of doubt.
Another problem emerges, when
those, who hold “protected” positions in independent government bodies are
taken into account. A clearly defined narrow range of grounds for dismissal, in
this case, can be understood as ensuring their independent and objective
activity. This concerns judges, the Commissioner for Human Rights and others.
Grounds for dismissing them are exhaustively defined in the Constitution, and,
thus, the procedure defined in this law does not meet the criteria of
independence, which is highly questionable.
This procedure essentially
undermines the functioning of such independent, regulatory institutions and
creates an evident conflict between the executive, legislative and judicial
branches.
Extremely wide
range of people that are subject to lustration
In accordance to the
recommendations of the Council of Europe, lustration can only be applied to
positions whose actions can become a potential threat to democracy and human
rights. The lustration bill targets all officers and employees of the state and
local governments, which is rather unreasonable.
One of the biggest problems is
that according to the bill almost all civil servants who held senior positions
throughout the past few years were meant to be relieved of their duties, and in
some cases, the bill implies the total layoffs.
In reality, according to our
approximate calculations, the number of people that falls under the criteria of
the bill is more than a half million, furthermore, the number is only regarding
civil servants. In addition, this number must be increased to include dismissed
personnel of the police, tax police and almost the entire composition of the
prosecutor’s office.
All the individuals are meant
to leave their positions with a 10-year ban on holding a position in government.
It is highly unlikely that such conditions are fair to all employees. Moreover,
the bill, at the same time, does not provide answers to simple questions such
as: what is the mechanism of dismissal of these people? What guarantees that
the positions would be filled by more qualified employees? Evidently, the aim
should not be defined by the act of dismissal, because without a radical change
of the system, a shift among employees would not generate a significant
improvement.
The bill implies the complete
dismissal of all the interior officials and tax police except privates. Such an
unconditional approach and complete dismissal would practically destroy the
targeted structures, because those who have not worked there before would not
be able to accomplish the functions of those bodies fully. No country ever
reformed law enforcement structures by completely replacing entire staffs. The
most that was ever done was to fire personnel and re-hire some of them under a
certain number of conditions. However, the bill prohibits a return to service
for 10 years. This practically means that it would be necessary to either
employ absolutely new people or those who are retired.
Feasibility of lustration
The bill contains a number of
provisions that cannot be fully implemented.
For instance, the bill
requires a complete dismissal of all the police officers and tax police, yet,
no transitional provisions are specified.
Some of the bill’s last
provisions generate a need for new laws, however, a rejection of these laws
would not prevent the law on governmental cleansing from coming into effect,
and the process of mass dismissals would start immediately after the law is
passed.
This constitutes a serious
issue implementing the bill’s provisions and transfers the process into the
dimension of selective application, when only those who are not needed by the
authorities would be fired, which has nothing in common with the principle of
the rule of law.
Furthermore, the bill requires
that officials of all ranks make public their “declaration on property, income,
expenses and financial obligations regarding a particular individual and people
close to him/her (husband, wife, father, mother, stepfather, stepmother, son,
daughter, stepson , stepdaughter, brother, sister, grandfather, grandmother,
grandfather, great-grandmother, grandson, granddaughter, grandson,
granddaughter, adoptive parent or adopted child, the custodian or guardian of a
person who is under guardianship or trusteeship, and persons who live together,
related to common life and mutual rights and obligations of the entity
verification, including persons living together but not married)”.
At the same time it is not
specified throughout what period such a declaration should be filed. In
addition, the provision does not consider that collecting all the required
information on expenses of all relatives, in practice, can be purely
impossible.
For instance, as a consequence
of a tense relationship between relatives. Moreover, it gets more difficult
when considering that this requirement is orientated towards the past tense,
when those individuals never kept a proper record of their expenses.
Nevertheless, the refusal of
filing such a declaration or providing incomplete or false information means
that the person is to be relieved of their duties with a prohibition of holding
positions in the government for 10 years. In practice, such a requirement, due
to the improbability of its implementation, generates conditions to keep on the
hook any chosen official, even considering the cases when they are legally
protected from pressure, because they can be relieved from their duties
anytime.
A long list of similar
examples is yet to be provided, but they don’t just undermine the credibility
of this process, but also define its manual structure which is based on a
rather subjective than objective criteria.
Violation of the
right to privacy
International standards on
human rights clearly specify the necessity to ensure the right to private life
within the lustration process. Measures should be taken in order to avoid a
possible irrational public accusation or distribution of false information
regarding a certain individual. Previous experience of other countries portrays
the need for a highly careful approach to the distribution of information.
The bill requires that all
investigations, as well as their ensuing verdicts be made public. Such a
procedure, in our opinion, violates the right to privacy.
On the one hand, there is no
need to share the results of investigation if a person does not become the
subject of lustration. In such a case, there is no social significance in
sharing personal data about an individual. It should only be possible in situations
that raise reasonable suspicions about the objectivity of an investigation.
On the other hand, immediately
disseminating the results of investigations can also be understood as an
unreasonable violation of human rights. When considering that an investigation
and its outcome would be performed by a non-independent agency, a distribution
of its result without judicial review can be interpreted as an unjustified
intrusion into privacy. It is highly probable that the data can be incorrect or
false, thus, the decided verdict is wrong. If the verdict is recognized as
illegal, restoration of a person’s reputation, still, would be rather
difficult. Hence, such a procedure already generates a systematic problem of
maintaining the right to privacy.
Conclusions
The total set of shared
problems identifies significant deficiencies in the bill on governmental
cleansing. The bill appears to be rather general and would not achieve the
expected results. The bill foresees applying lustration to all officials,
employees of the state and local authorities, which is evidently an
unreasonable demand. At the same time the financial and administrative loss
from the implementation of the bill was not calculated. Besides, a lot of
aspects of the bill involve serious systematic violations of human rights.
Under such circumstances, lustration would transform from being an instrument
of safeguarding securing democracy to a mechanism of selective prosecution of
political administration, the final destruction of independent institutions,
thereby increasing the trend of filling staffs of government bodies based
solely loyalty to certain ruling political forces and lead to systematic human
rights violations. Under these conditions, it is hardly possible to revamp
government and achieve the desired goal of lustration.
Volodymyr
Yavorsky is a member of expert with the Kharkiv Human Rights Protection Group.
