The realization of one of the main requirements of the Revolution of Dignity – the elimination of the people of Yanukovych’s regime from the power – is now under quite a real threat: the court might abolish the law on lustration. We write about why the law on purification of power is necessary at all, how it is possible to manage to change it, what shortcomings are discussed and whether the revenge of the Pro-Russian forces is really possible.
Why was the law on lustration necessary?
As explained by an associate professor of the Vadym Hetman Kyiv National Economic University Pavlo Satsky, in 2014, Ukraine faced the threats of internal nature, and the main function of the law “On the purification of power” was countering them.
“This law introduced discriminatory rules against the persons who contributed to the usurpation of power and the weakening of the country’s defense potential during the period of Viktor Yanukovych’s presidency. The law concerns the senior officials of the executive authorities, law enforcement officers committed illegal actions against the participants of the protest actions, the judges who passed illegal decisions, the AFU soldiers who weakened the defense potential of the country by their actions or inaction. The sanctions were provided in the form of prohibition to hold positions in the authorities for 5-10 years, depending on the position held and the grounds for the application of a discriminatory rule.
However, the restriction does not apply to the officials holding elected offices and also cannot be applied with respect to the right to hold elected offices. That is, in the application of discriminatory rules it was not provided that the professional qualities of the official should be considered. This law was the first precedent for Ukraine when discriminatory norms regarding employment were applied on the basis of legislative norms and on the basis of the fact that a person held a relevant position in a certain period and under certain conditions. That is, it is legislatively fixed that the basis for refusal for a position or release is not discrepancy of a position or moral requirements, but efficiency in assistance of usurpation of the power”.
Ihor Markevych, a lawyer and the founder of the law firm Amigo Partners, noted that the law on lustration, which is likely to be abolished by the constitutional court of Ukraine, is aimed at achieving two different goals.
“The first is to protect society from the persons who, because of their past actions or inaction, may harm the newly created democratic regime. The second goal is to cleanse the state bodies of persons who were involved in large-scale corruption. The Venice Commission, noted in its Final Resolution of 19 June 2015 that both objectives were legitimate, although the latter could not be embraced by the concept of “lustration” as such.
Lustration cannot be considered as a punishment, but only as a preventive measure. The relevant Law was primarily adopted to temporarily remove certain persons from the authorities for an objective investigation of their past acts.”
Yurii Shulipa, a lawyer and the director of the international union Institute of National Policy, is convinced that the law on lustration is strategically important for Ukraine. After all, the persons referred to in the law, gave up the national interests to the enemy, and pushed the situation over the edge which led to economic and political crisis during the reign of Yanukovych, showing their complete failure in the field of public administration, and many of them actually contributed to Russia’s seizure of Crimea and other Ukrainian territories, – they openly worked on the side of the enemy.
“In this sense, the collective “professionalism” of the majority of the people who fell under lustration, lies only in the collapse of the Ukrainian state, creating conditions for corruption, impoverishment and total arbitrariness, serving the criminal interests of marginal circles, as well as the aggressor country, political and economic occupier.
It should be noted that V. Yanukovych and his environment acted in the interests of the Russian Federation, mostly in the criminal ones. The political nature of V. Yanukovych’s regime is not just Pro-Russian, but Russian. In fact, Yanukovych served as the plenipotentiary representative of the Russian President Vladimir Putin in Ukraine. It is no accidental that while feeling the danger of imprisonment for his active work in the interests of the aggressor and occupier country, Yanukovych and his organized crime group were immediately evacuated by the Russian military intelligence from Ukraine to Moscow, to their master in Kremlin.
In addition, a significant number of persons who fall under lustration cooperated with foreign intelligence agencies and special services of the hostile state during the reign of the Russian regime of V. Yanukovych, have various secret obligations before them, are on a hook of the Russian intelligence services and the top political management of the Russian Federation (Putin chekist-fascist organized criminal group).
Consequently, the majority of the persons who fall under the law on lustration for committing various crimes fall under criminal liability, for example, for espionage, for the attempted abuse of the territorial integrity in the interests of the hostile aggressor country, for undermining the bases of the constitutional system and so forth.
Thus, the law enforcement agencies of Ukraine, continue to serve the interests of individual groups in many respects, while deliberately ignoring the duties directly assigned to them by the constitution and the laws for the protection and security of the state, most of these criminals are de facto exempt from deserved punishment. And, as you know, unpunished crimes subsequently cause even greater crimes.
Despite the fact that the law on the purification of power itself is far from a perfect legal work, and in some aspects it is easily obviated by the former officials of the times Of V. Yanukovych, it somehow restrains the Russian revenge of the return to power of various agents of hostile Russian influence, and simply incompetent, dishonest and corrupt persons together with them.
Why may the law be abolished? What is its imperfection?
Pavlo Satsky believes that in fact the law has a lot of “pitfalls”. First of all – when it comes to the norms of the labor code. A certain conflict with the norms of the constitution arose as well.
“The legislator has prescribed the protection of human rights as one of the goals of the law “On the purification of power” not in vain. However, he should have strengthened this position by separately prescribing that discriminatory rules are applied to officials on the grounds of their performance of administrative functions in their positions, and committing acts that violated human rights. In this case, it could be a question of impeding the realization of the right to peaceful protest. It was important to register the moment of violation of the oath in the law, which a public servant makes while being accepted for a position, and its text provides: “…I will faithfully serve the Ukrainian people, observe the constitution and the laws of Ukraine, implement them, respect and protect the rights, freedoms and legitimate interests of a person and a citizen, the honor of the state…”
The reference to the application of discriminatory norms under the law “On the purification of power” to the violation of the provisions of this oath was more justified from a legal point of view, since “the promotion of the usurpation of power” is more political than legal and requires further clarification. Although, in this law it would be necessary to prescribe a normative definition of the “usurpation of power” concept, since the article 5 of the constitution stipulates that no one can usurp the state power and the content of this article requires clarification. Similarly, the application of restrictive rules to military personnel and judges should have been tied to the violation of the oath. It would be useful for the law to refer to international law, in particular with regard to the human right to peaceful protest, the inadmissibility of unlawful detention and the like. This would significantly strengthen the constitutional basis of the law. The political expediency in 2014 determined the binding of the provisions of the law “On the purification of power” to the period of the presidency of V. Yanukovych. It is also the first precedent in Ukraine of applying the restrictions to those who were in office during a certain period with the reference to a certain official. However, this significantly weakens the legal basis of the law and the conviction of Yanukovych was necessary for its provision. At the same time, this sentence was to deal directly with the violation of human rights and attempts to usurp power. Besides, mentioning Yanukovych himself in the law is the precedent for applying the analogy in the legal definition of usurpation of power. That is, actions which were made by Yanukovych or for the implementation of his policy.”
Ihor Markevych explained that the issue of lustration (which is actually the “last resort”) is directly violated in the resolution of the Parliamentary Assembly of the Council of Europe. And the court will be guided also by compliance with these criteria while determining the constitutionality of the law.
“The resolution notes that lustration measures “can be compatible with a democratic state based on the rule of law, in compliance with some criteria”. These criteria are:
– the guilt, which is personal and not collective, and must be proved in each individual case;
– the guaranteed right to defense, the presumption of innocence and the right to judicial review of a decision;
– various functions and purposes of lustration, namely the protection of the newly formed democracy, and the criminal law, that is the punishment of persons who are considered guilty, must be observed;
– also, lustration should have strict time constraints, both in the period of its application, and in the period during which the checks are carried out.
Lustration itself is a measure of the last resort because, as a general rule states, “everyone has the right to take part in the government of his or her country directly or through freely chosen representatives” and that “everyone has the right of equal access to public service in his or her country” (defined in the article 21 of the universal declaration of human rights). The court may be guided by the declaration of human rights and the criteria of the PACE Resolution.”
Changing the law to avoid its abolition?
The prime minister of Ukraine Volodymyr Groysman strongly opposes the abolition of the law, and reminded that it was one of the main requirements of the Revolution of Dignity: the people demanded to remove the accomplices of Yanukovych from power. The prime minister appealed to the parliament with the urge to consider a bill that would improve the law on lustration and make it impossible to abolish it.
“The first post-revolutionary government developed and implemented the relevant law. It is unacceptable to abolish it. This is a desecration of the memory of the Heroes of the Heavenly Hundred and all Ukrainians who died during the war with Russia and spit in the eyes of those who continue to defend peace in the East of our country now.
As the acting prime minister, I call on all the branches of the government to prevent the collapse of the lustration processes. Separately, I appeal to the Ukrainian parliament to consider the bill number 2695, which was developed by the government together with experts, public activists and people’s deputies 4 years ago to improve the law on lustration and implement the recommendations of the Venice Commission.
This step will make it impossible to attempt to revise and abolish the lustration processes. And the current parliament is able to adopt this law.”
The minister of justice Pavlo Petrenko also supported the call of Volodymyr Groysman. He is convinced that the only legal way to stop any attempts to abolish the lustration law is the consideration and adoption of the bill number 2695 by the parliament.
“This document introduces the amendments to the law on the purification of power, which we developed together with people’s deputies and experts of the Venice Commission in 2015. Both prime minister Volodymyr Groysman and I called on the parliament today to ensure the consideration of the bill already this session week. Thus, we will remove all threats to stopping the processes of lustration in Ukraine.”
Pavlo Satsky emphasizes that Groysman’s initiative is quite appropriate, but now, according to the expert, it is almost impossible to amend the law on the purification of power.
“The constitutional court of Ukraine can recognize its separate norms as inconsistent with the constitution, but recognize it as corresponding to the constitution as a whole. The law itself is important and necessary given the need to set a precedent for the responsibility of officials for actions or inaction that resulted in the usurpation of power or the weakening of the country’s defense potential, regardless of their professional qualities. Its abolition, first of all, may be beneficial to the officials of the supreme bodies of the executive power in respect of which there is a limit to hold office for 10 years.”
What is the danger of the abolition of the law on lustration?
According to Yurii Shulipa, in the event of the abolition of the law on the purification of power, most officials of the times of Yanukovych, who have considerable connections in the state authorities and local self-governments, will be able to return to power and to “relive old times”.
“The main goal of the lustration law is to prevent persons that are directly or indirectly involved in the usurpation of power by the ex-President of Ukraine Viktor Yanukovych who carried out the undermining of national security and defense of the country and various violations of the rights and freedoms of a person and a citizen from dealing with state affairs (part 2 of article 1 of the Law of Ukraine “On the purification of power”).
Against the background of the active capture of the Ukrainian information space by the agents of the Russian hostile influence, the abolition of the law on lustration will inevitably lead to the destruction of the system of public administration in the interests of the aggressor country and will only accelerate the controlled capitulation of Ukraine in criminal interests of the agressor country. The negative consequences for Ukraine can lead to default, the manifestation of various sporadic conflicts, or even to a serious civil confrontation and the collapse of the Ukrainian statehood.”
The same was confirmed also by Tetiana Kozachenko, the chairman of Public Council of Lustration at the Ministry of Justice of Ukraine. In her opinion, the abolition will mean the actual return of Yanukovych’s officials.
“If the cancellation takes place, it means that Lukash, Portnov, Kivalov will regain access to state mandates. 6 judges have a private interest, they have a conflict of interest… The risks are big. In fact, it is Yanukovych’s court which makes decisions in its own interests and in the interests of Yanukovych’s power, which has already been fully integrated, as evidenced by the court decisions and personnel appointments.”
The minister of justice Pavlo Petrenko believes that the abolition of the law is unacceptable and is convinced of the possible revenge in this case.
“All attempts to destroy the law on the purification of power in any way is a revenge and the desire of the extremely odious persons who fled outside the country not just to return to Ukraine, but to settle in the bodies of state power,” the head of the Ministry of Justice stressed.
Text by Dmytro Zhuravel