Many experts believe that corruption in Ukraine has a systemic nature and negatively affects the internal and external processes of the country’s development and, as a result, its position in the geopolitical environment.
Since gaining independence, Ukraine has created various mechanisms to prevent corruption. Calls for the need to use lustration as one of the effective ways to prevent corruption began to be heard in 2004 after the Orange Revolution. However, after President Viktor Yanukovych was removed from power, whose government was considered usurped and corrupt, legislation that introduced the legal mechanisms applying lustration to prevent corruption in Ukraine was adopted in 2014.
The term “lustration” has had various definitions over its historical development. For example, in Greco-Roman mythology, it meant a ritual of purification from moral filth. Later, in Europe, the term lustration was initially used in the case of tax and financial audits, which were conducted every 5 years and used as a means of proof in court cases. After that, lustration began to be defined as a special procedure for checking to see if and how persons who hold government positions or apply for these positions cooperated with state security services under former governments.
Let’s consider the Ukrainian experience with lustration as a way to prevent corruption. Lustration needed to be introduced in Ukraine because of the high level of corruption at the state and local levels. As lustration was implemented, a large number of experts believed that it was not a long-term transformation, but a resuscitation measure that Ukraine needed quickly so that new people could come to power, carry out reforms, and reduce the level of corruption.
In 2014, Ukraine’s “On Purification of Power” law was adopted to implement legal mechanisms for the application of lustration; it is not officially called the «Law on Lustration». Concurrently, Ukraine’s «On Restoration of Confidence in the Judiciary in Ukraine» law was also adopted. It established legal and organizational principles for carrying out special inspections in courts of general jurisdiction as a temporary measure, using existing procedures to hold judges of courts of general jurisdiction accountable and to dismiss them from office if they violate their oaths. This law was passed in order to increase the authority of the judiciary and citizens’ trust in the judicial branch of government, restoring the rule of law and justice.
Thus, in 2014 the definition of “lustration” and the specifics of its application were determined by law. Ukrainian legislation defines that lustration should be understood as the prohibition of individuals from holding certain positions (except for elected positions) in state agencies and local self-government bodies designated by the Law on Lustration itself or by a court decision. In particular, it restricts access to positions in judicial governance (members of the High Qualification Commission of Judges of Ukraine, the High Council of Justice), public service (heads of services, agencies, inspections, the Chairman of the Antimonopoly Committee of Ukraine), the military, and executive governance (Prem. Prime Minister of Ukraine, ministers), among others.
At the same time, the introduction of the lustration mechanism in Ukraine is based on the rule of law, openness, transparency, the presumption of innocence, individual responsibility and the guarantee of the right to protection. The mechanism is aimed at preventing the usurpation of power, the subversion of Ukraine’s national security and defense, and the unlawful violation of human rights and freedoms.
In order to introduce effective mechanisms of lustration, the defined lustration criteria can be applied to a person who is in a position defined in the law on lustration. For the most part, such criteria relate to the term of office during a certain period, the presence of a relevant court decision based on which lustration can be applied, as well as the presence of work experience in a certain position associated with the former communist government.
If we talk specifically about the criteria related to the period of tenure of persons to whom lustration can be applied, the Law on lustration defines two main periods, namely: from February 25, 2010 to February 22, 2014 (in this period, there must be a year of work experience) and from November 21, 2013 to February 22, 2014 ( if the person held a relevant position and was not dismissed at will).
In addition to the criteria, which mostly relate to work experience in a certain position, the law on lustration also defines a special anti-corruption criterion in the presence of which lustration can be applied: the provision of unreliable information on ownership, indicated in the property declarations an individual submitted for the past year, or the discrepancy in the value of the property (property rights) indicated in their declarations acquired during their tenure in office during the specified period. This is also called property lustration.
The method of applying lustration according to the legislation of Ukraine is:
- The submission of a statement to a relevant government body the person subject to lustration disclosing that lustration is being applied to them.
- The application of lustration based on the results of an inspection by the bodies that have been given the appropriate powers.
Pursuant to Ukraine’s lustration law, the Unified State Register of Persons to whom the provisions of the Law on Purification of Power have been applied was created.
However, it should be emphasized that after the adoption of the corresponding Law on Lustration, even if this process had strong support from experts and society, procedures were started to recognize some of the provisions of the Law on Lustration as unconstitutional. The provisions related to tenure as a criterion for the application of lustration and the period a person is prohibited from holding certain positions (5 and 10 years).
Initially, on November 20, 2014, the Supreme Court of Ukraine appealed to the Constitutional Court of Ukraine with a request to recognize the provisions that establish the criteria for the application of lustration as unconstitutional. The Supreme Court of Ukraine substantiated its position by the fact that the relevant provisions violate the principle of individual responsibility and provide for the application of lustration measures to a person only on the basis of his holding a certain position in a certain period of time. The application of lustration measures to judges is actually an additional ground for dismissal of a judge from the position specified by the Constitution of Ukraine. The court argued “On Purification of Power,” and also “On Restoring Trust in the Judiciary in Ukraine,” already provide for checks on judges regarding the decisions they made during the events on the Maidan.
Subsequently, on January 20, 2015, 47 Ukrainian Members of Parliament appealed to the Constitutional Court of Ukraine with a petition to declare unconstitutional the same provisions. In addition, the MPs asked the court to recognize the provisions on property lustration as unconstitutional. However, the Constitutional Court of Ukraine still has not made a final decision regarding the constitutionality of certain provisions of the “On Purification of Power”. Currently, the Constitutional Court of Ukraine has moved to the closed part of the plenary session for further discussion of the case materials and decision-making.
The Venice Commission for Democracy through Law also criticized “On Purification of Power.” For example, in its conclusion, the commission mentions the generality and inaccuracy of certain provisions of the relevant law. Regarding the provisions of “On Purification of Power” which define property lustration, the Venice Commission concludes that the law does not contain requirements for individual decisions when verifying the authenticity of a property declaration. That is, it becomes unclear how a lustration check can reveal inaccurate information about financial data, since the law does not specify how such data should be evaluated during the check. In fact, verifying this data is more difficult than simply assessing whether a person has held a certain position in the past the process requires special knowledge that the persons organizing it do not always possess. According to the Ukrainian authorities, the Ukrainian Government gave a mandate to the tax authorities to carry out this inspection. Nevertheless, specialized procedures and bodies for combating corruption already exist in Ukraine’s anti-corruption legislation. Finally, the Venice Commission agrees that corruption certainly undermines (faith in) the democratic order and the rule of law. However, it is difficult to accept that a person found to be involved in corruption in general creates a risk in terms of serious violations of human rights justifying the introduction of lustration measures (as opposed to the application of criminal liability for criminal cases).
Ukrainian case law regarding the application of property lustration shows that the courts evaluate differently the meaning of the inspection’s conclusion and its impact on the rights of the plaintiffs. So, for example, when checking information about real estate for the application of property lustration, tax authorities do not always consider the peculiarities of acquiring ownership of such property. That is, they do not consider that the registration of title documents for housing purchased under the terms of a housing construction financing agreement takes place from the moment of full payment of its cost even though payment can be deferred over time. Also, regarding the legal status of the property of the declarant and family members, the incomes of family members are not taken into account. Thus, the tax authorities may make erroneous conclusions about the financial insolvency of the person subject to the audit (decision of the Zhytomyr District Administrative Court in case No. 806/1865/15).
In these cases, individual plaintiffs, substantiating the illegality of the defendants’ refusal to accept a declaration with reliable information, refer to part ten of Article 12 of the law “On Principles of Prevention and Counteraction to Corruption,” which obliges the subject of the declaration in a case where unreliable information is detected to submit a declaration with reliable information. Courts consider such statements groundless, noting that the Law does not provide for the re-submission of authentic (specified) declarations (decision of the Kharkiv District Administrative Court in case No. 820/3291/15).
The decision of the European Court of Human Rights in the case Polyakh and others v. Ukraine is indicative of the courts’ views on the matter. It concerned the dismissal of five civil servants in accordance with the “Law on Purification of Power” of 2014. In disposing of the relevant case, the ECHR concluded that it had not been proved that interference with any of the applicants was necessary in a democratic society. Consequently, there was a violation of Article 8 of the European Convention on Human Rights in respect of all the applicants.
Thus, we come to the conclusion that the provisions of the law on lustration have gaps in practice. So, first of all, there is a risk that a young specialist who just started to work in the public service after V. Yanukovych’s resigned from the post of President of Ukraine could be lustrated for an incorrectly filled income declaration. Since the list of positions is defined by the relevant law, in respect of which lustration is too broad, then any person holding a position (except for an elected one) in state agencies or local self-government bodies can be dismissed for so-called “property lustration.”
Secondly, for persons whose property declaration was found to contain unreliable or inaccurate data, there is a lack of guarantees that their explanations of the data and their supporting documents, which are mandatory for consideration by the relevant authority when preparing a conclusion on the check, will be taken into account.
Thirdly, the case law on the annulment of tax authority lustration decisions made based on the results of the authorities’ inspections contains the position that the judicial body is not empowered to cancel these decisions. This position contradicts the provisions of the legislation which determine that such types of decisions can be appealed to the court. In such a case, the person to whom the lustration procedure may be applied cannot fully exercise their right to protection because courts refuse to consider complaints against the tax authorities’ decisions on lustration.
Dr. Olha Chernovol is a Ukrainian lawyer who is currently completing a post-doctoral fellowship at the University of Ottawa in Canada, where she works with Professor Jennifer Quaid on research exploring non-trial resolutions in anti-corruption matters.
