It has been over a month since the Law “On Cleansing of the Authorities” (Lustration Act) came into force on October 16. The government has already made the first steps in enforcing this piece of legislation: authorities adopted an instruction on how to conduct lustration checks, the list of bodies authorized to provide official information for such checks, the regulation on the register of persons who has been banned from office, as well as the schedule of checks. Nevertheless many in the state apparatus strongly oppose the Act.
There are already hundreds of names in the list of lustrated civil servants, including such high-ranking officials as deputy-attorney general and chiefs of regional offices of the interior ministry. The Prosecutor General Yarema has labelled the Act “uncomforting” for public servants and expressed his concerns about upcoming litigation aimed at reinstatement in office of the lustrated officials. On November 24 Supreme Court overturned dismissal of Kharkiv prosecutor. That is why many doubt the Act will survive the forthcoming legal battles and/or the process of implementation.
There are three major challenges on the path of the law implementation. First, the Lustration Act may be deemed partially unconstitutional or enforced in breach of European Convention on Human Rights (ECHR). Second, the interpretation of the Lustration Act by Ukrainian judiciary may be dissonant with legislator’s intent. Finally, there are limited incentives for the civil society to participate in and exercise control over the implementation of lustration proceedings.
The article argues that allegations concerning unconstitutionality of the Lustration Act ill founded since the Act enforcement is a measure ensuring not criminal liability, but a proper organization of civil and administrative service. The prospective success of this policy depends on support of the civil society and consensus between judicial and executive bodies.
Compliance with Constitution and ECHR
Concerns over possible unconstitutionality of the Lustration Act have been spreading long before the final version of the document became known to the public. It is not surprising that by the end of September former Party of Regions’ deputies started collecting 45 signatures necessary for an official request demanding constitutional review of the Lustration Act. However, External Intelligence Service of Ukraine jumped ahead of them with the similar resort to the Constitutional Court of Ukraine: the Court was requested to assess whether the Intelligence Service should apply the Act and conduct lustration of its own employees, while this Act allegedly contradicts Ukrainian Constitution. Obviously, in order to answer this question the Court must deliver a ruling on those allegations of unconstitutionality.
This request for constitutional review suggested that proper implementation of the Act would lead to violations of
(1) the right to equal access to public service (by allegedly ill-grounded prohibition for particular individuals to be public servants),
(2) the right to work (by limiting their options on how to earn living),
(3) prohibition on retrospective application of criminal laws (since it was not illegal for respective official to hold a high post during Yanukovich’s regime), and
(4) prohibition on collective legal responsibility (the Act subjects groups of officials falling under outlined criteria to lustration, not each one of them individually).
On November 17 the Supreme Court requested the Constitutional Court to declare some provisions of the Act unconstitutional based on the same arguments summarized by the External Intelligence Service.
Defining the scope of the constitutional right in domestic legislation does not constitute per se violation of this right. The Constitutional Court of the Russian federation has recently reviewed a similar application: it examined legitimacy of a lifetime ban on holding any public offices for those citizens who have unlawfully avoided military service. The Court adjudicated that contested prohibition is constitutional since essentially it is a mere special qualification requirement, which could be legitimately imposed by legislator once there are sufficient reasonable grounds. At the same time the Court outlined several conditions for such a restriction to be constitutional. First, the decision of an administrative body to impose a ban should be subject to judicial control. Second, the court has to assess exceptional circumstances, including those not prescribed by the law. Third, the duration of the ban should not be unreasonable or disproportionate. The essence of the case is almost identical to Lustration Act controversy. The logic of this ruling, once applied in Ukrainian case, makes clear that External Intelligence Service’s allegations regarding violations of equal excess to public service and right to work should be rejected since Parliament has the right to impose such restrictions as long as they pursue reasonable aim. Similarly, the allegations concerning retrospective criminal law and collective responsibility should be dismissed. The ban from civil should be viewed as an element of a proper organization of civil and administrative service and/or labour rather than punishment imposed on a group of people.
Rules prescribed by the Act should also be compatible with the ECHR and practice of the European Court. The relevant case law has previously involved assessing lustration legislation and procedure in countries of Eastern Europe in the light of the right to a fair trial (Article 6), the right to private life (Article 8), the right to equality (Article 14) and the right to free elections (Article 3 Protocol 1). Lustration Act is not likely to be contested under the Article 6 because provisions of this Act and Ukrainian Constitution establish necessary judicial control over decisions to subject an official to lustration. Claims of Article 8 violation are also improbable since all relevant cases in the Court’s jurisprudence concerned prohibitions to work in private sector. Not once the Court found privacy violation considering the ban from public service. The right to free elections is also unlikely to be raised before the Court because the Act does not subject any elected official to lustration and does not limit the right to vote or to be elected. The only provision of the Convention, which may be relevant to lustration in Ukraine, is a prohibition of discrimination under article 14. In Rainys and Gasparavičius v. Lithuania the European Court ruled that lustration act was of “belated nature” since it imposed the employment restrictions a decade after Lithuanian independence proclamation and termination of the applicants’ KGB employment. The same logic may apply to Ukrainian ban imposed on former members of communist party. Beyond any doubt the Court will encounter applications concerning Ukrainian lustration cases in the near future.
Judiciary’s interpretation vs. legislator’s intent
Article 3 of the Lustration Act targets three main categories of public servants: persons who held the highest positions during the presidency of Victor Yanukovich or former communist regime, persons who committed crimes against national security, election frauds and human rights abuses, and persons who are suspected of illicit enrichment. At the same time Article 1 declares that the purpose of the Act is to restrict employment in public service for those people who served the previous regime and those who have committed violations of human rights or damaged national security.
Hence, it is commonly argued (in both constitutional requests, as well as in regular courts), that in order to subject a public servant to lustration one has to establish not only that this person satisfies one of the specific criteria outlined in Article 3, but also prove that he/she actually supported ousted president Yanukovich and contributed to usurpation of power. This logic, if implemented, will effectively undermine the whole process of lustration, as it substitutes clear criteria with imprecise one.
While assessing the validity of this argument, the courts may encounter the conflict with lawmaker’s intent. In the process of statutory interpretation the court should bear in mind the hierarchy of interpretation methods: judge must decide how much weight to give to arguments about the meaning of the precise wording, the purpose of the norm, or the purpose of the law. For example, if Article 1 of the Lustration Act does not mention elimination of corruption as one of the purposes of the law, does it mean that none of the specific anticorruption instruments in article 3 can be applied? Moreover, the ambiguity becomes even worse since it challenges the doctrine of separation of powers: in this particular case does the court have authority to substitute the lawmaker’s vision of how to pursue a stated aim with its own?
Civil Society Participation
Another challenge the lustration process might confront is passiveness of the civil society. Since one of the Act’s main objectives is a fight against corruption, there is and will be fierce resistance to its implementation on all levels and at all stages. Pursuant to Article 5 of the Lustration Act, once the start of the checking procedure is announced in a particular state body/agency, any citizen should be able to submit any information he/she possesses concerning an official, his possessions, possessions of his closest relatives etc. to respective authorities. The law can hardly be successfully implemented without such information and public control over its processing, taking into regard the scope of the check together with the amount of opposing corrupt interests involved. Thus, it is necessary to intensify awareness campaigns and to establish convenient and reliant ways for citizens to provide information to respective authorities and NGOs. Such work is already on the way. For example, there is a non-governmental body established under Lustration Act to control implementation of this Act, it is called Civil Lustration Committee. This organization has already launched a website to collect complaints and reports from citizens on instances where the Act is not being implemented properly.
The effect of various hindrances in the enforcement of Lustration Act depends on public understanding and acceptance of the law. Although Ukrainian community often speaks of lustration in political and abstract terms, in practice it means hurting interests of particular influential corrupt officials with no regard to their political position, as they mostly have none. That is the main source of conflict triggered by the new law and the most important reason why the Act is being so zealously opposed. Architects of anticorruption revolution in Georgia have repeatedly pointed out it was that very anticorruption struggle, not the political revolution, that generated most of the new government’s enemies. What ultimately will decide the fate of the Act in its fight against corruption is the intensity of public control and participation strengthened by support of those in the government and the parliament who do believe in real changes.