Introduction

The law “On Government Cleansing” (hereinafter: “the Lustration law”) was adopted by the Verkhovna Rada on 16 September 2014, and signed by President Poroshenko on 9 October 2014. Published in the Official Gazette on 15 October, it entered into force on 16 October 2014.

On 3 October 2014, the Chairperson of the Monitoring Committee of the Parliamentary Assembly requested the opinion of the Venice Commission on the Lustration law.

The interim opinion was discussed at the joint meeting of the Sub-commissions on fundamental rights and on Democratic Institutions on 11 December 2014. On that day, 11 December 2014, a Ukrainian delegation composed of Mr Pavlo Petrenko, Minister of Justice, Mr Leonid Yemets, Mr Yegor Soboliev and Mr Heorhii Lohvynskyi, MPs as well as Ms Tetiana Kozachenko, Head of the Department for lustration of the Ministry of Justice, travelled to Venice and submitted a set of arguments relating to the Lustration law to the rapporteurs and to the plenary session (12-13 December 2015). The draft opinion was subsequently adopted by the Venice Commission at its 101^st Plenary Session (Venice, 12-13 December 2014).

The Ukrainian delegation, representing the country at the plenary, acknowledged the need to amend the Lustration law and sought the assistance of the Venice Commission in order to achieve an effective lustration framework which is in line with the applicable international standards. A visit by the rapporteurs is planned for mid-February 2015.

Background of the law

After entry into force of the lustration law on on 16 October 2014, on 17 October 2014, the Ministry of Justice of Ukraine issued Regulation No. 1704 on the Unified state register of individuals to whom the Lustration law shall apply. The Regulation establishes an electronic database containing information on persons to whom the Law applies. On 28 October 2014, the database was open to public access and the Ministry of Justice published the list with the names of some 200 people who had been removed from their office based on the Law.

On 18 October 2014, the External Intelligence Service of Ukraine appealed to the Constitutional Court of Ukraine, requesting an official interpretation of Articles 3.1.7, 3.2.3, 4.3 and Clause 2.1 of Final and Transitional Provisions of the Law in relation to Article 1.2 of the Lustration law, as well as the interpretation of Article 19 of the Constitution of Ukraine in relation to the above provisions of the Lustration law and Article 64 of the Constitution of Ukraine.

On 17 November 2014, the Supreme Court of Ukraine appealed to the Constitutional Court of Ukraine, challenging the constitutionality of Articles 2.2, 3.3, 6.1 and 13.2 of the Lustration law.

A law relating to lustration in the judiciary (the Law on the restoration of trust in the judiciary of Ukraine[1]) was previously adopted by the Verkhovna Rada on 8 April 2014. This law, which was assessed by the Council of Europe[2] is still in force.

International standards related to lustration

The following four key-criteria summarize the essence of the standards pertaining to lustration procedures:

-         guilt must be proven in each individual case;

-         the right of defence, the presumption of innocence and the right to appeal to a court must be guaranteed;

-         the different functions and aims on the one hand of lustration, namely the protection of the newly emerged democracy, and on the other hand of criminal law, i.e. punishing people proved guilty, have to be observed;

-         lustration has to meet strict limits of time in both the period of its enforcement and the period to be screened.

Conclusions of the interim opinion

The Venice Commission has analysed the Lustration law of Ukraine. It has not been possible to carry out a visit to Ukraine in the aftermath of the parliamentary elections of October 2014; this assessment has therefore not been discussed thoroughly with the Ukrainian authorities and – due also to the absence of an explanatory report - is to be considered an interim one.

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. 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. Lustration procedures, despite their political nature, must be devised and carried out only by legal means, in compliance with the Constitution and taking into account European standards concerning the rule of law and respect for human rights. If this is done, then lustration procedures can be compatible with a democratic state governed by the rule of law.

The Venice Commission has assessed the Lustration law in the light of the four main principles flowing from the applicable international standards, namely that:

-         guilt must be proven in each individual case;

-         the right of defence, the presumption of innocence and the right to appeal to a court must be guaranteed;

-         the different functions and aims on the one hand of lustration, namely the protection of the newly emerged democracy, and on the other hand of criminal law, i.e. punishing people proved guilty, have to be observed;

-         Lustration has to meet strict limits of time in both the period of its enforcement and the period to be screened.

The Commission has reached the following main conclusions:

a)     Applying lustration measures to the period of the Soviet communist rule so many years after the end of that regime and the enactment of a democratic constitution in Ukraine requires cogent reasons justifying the specific threat for democracy which former communists pose nowadays; the Commission finds it difficult to justify such late lustration.

b)    Applying lustration measures in respect of the recent period during which Mr Yanukovych was President of Ukraine 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.

c)     The Lustration law presents several serious shortcomings and would require reconsideration at least in respect of the following:

-        Lustration must concern only positions which may genuinely pose a significant danger to human rights or democracy; the list of positions to be lustrated should be reconsidered.

-        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; the criteria for lustration should be reconsidered;

-        Responsibility for carrying out the lustration process should be removed from the Ministry of Justice and should be entrusted to a specifically created independent commission, with the active involvement of the civil society.

-        The lustration procedure should respect the guarantees of a fair trial (right to counsel, equality of arms, right to be heard in person); court proceedings should suspend the administrative decision on lustration until the final judgment; the Lustration law should specifically provide for these guarantees.

-        The lustration of judges should be regulated in one piece of legislation and not in overlapping ones, and should only be carried out with full respect of the constitutional provisions guaranteeing their independence, and only the High Council of Justice should be responsible for any dismissal of a judge.

-        Information on the persons subject to lustration measures should only be made public after a final judgment by a court.  

The Ukrainian authorities have agreed that the Lustration law requires improvement in order to meet the applicable international standards and have sought the assistance of the Venice Commission. The Commission welcomes the commitment of the Ukrainian authorities and is ready to provide its support for the amendment of the Lustration law. 

 Text of the opinion CDL-AD(2014)044