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Lustration preventing comeback of Ukraine’s ancien regime challenged after five years

Within society there was a great demand for lustration after the revolution of dignity:
Lustration preventing comeback of Ukraine’s ancien regime challenged after five years
Edited by: Sonia Maryn

*Lustration – government policy that seeks to cleanse a new regime from corrupt remnants of the past. 

On 24 February 2020, the European Court on Human Rights (ECHR) declined Ukraine’s appeal in the case of five Ukrainian ex-officials who protested the lustration law. Consequently, Ukraine will have to pay compensation to the five, as their rights were violated. The Minister of Justice Denys Maluska commented that the decision did not recognize lustration as illegitimate in its entirety, only when applied excessively. Nevertheless, the practice of allowing a member from the old guard to return to governmental positions in Ukraine cannot be prevented.

The Law On Cleansing of the Authorities (Lustration Law) came into force in September 2014. Following the Revolution of Dignity, the need to institute this legislation was obvious. The extreme measures taken by the government were still uppermost in the minds of the public, and the process of compensation for the mass killings on Maidan was still underway. The outcry for justice reverberated within society. As time went on, the old guard began to implement its tried-and-true instruments of sway – the courts, the media, and the oligarchs.

The Lustration Law was originally appealed in the Constitutional Court of Ukraine in 2015. Now, five years later, the court has not yet issued its ruling. The main concerns of society are that top officials loyal to runaway President Viktor Yanukovych, as well as those authorities and police brigades that persecuted peaceful protesters, will be allowed to return. The fact is that even without the Constitutional Court ruling these individuals were returning to Ukraine, with no intervention.

It’s important to review the recent ECHR decision and the reaction to this turn of events in Ukraine.

What was the Lustration Law about

The Lustration Law was meant to curtail civil servants that had held positions of influence at the public service prior to Yanukovych’s election in February 2010, and up until his flight from the country in February 2014. The law also applied to officials who had held positions within the Communist Party of the former USSR, prior to Independence in 1991. All those implicated by lustration were required to sign declarations specifying the responsibilities of their role that precluded them from further public service.

The case Poliakh and others v Ukraine was related to the dismissal of the five ex-officials noted above. Their complaints had been filed earlier, from November 2015 to October 2018. Three of the five were dismissed because they had worked as public servants from 2010-2014. Of the other two, one had neglected to complete the lustration declaration in time, and the other had held the position of the second secretary in a district Communist Party office.

All the plaintiffs complained in accordance with the European Convention on the Human Rights article on the right for respect of private life. Complaints by the three plaintiffs were also based on this guarantee, for a fair trial. In addition, they opposed the inability of Ukrainian courts to consider their demands. Another complaint was related to the violation of the right for the effective measure of protection.

On 17 October 2019, the ECHR ruled that the Lustration Law violated the rights of these ex-officials, and that they should be paid compensation. Ukraine was to pay EURO 5,000 to each applicant; an additional EURO 1,500 to the first applicant; and an added EURO 300 to the others.

In January 2020, Ukraine appealed the ruling. On 24 February, the court denied the appeal.

The reaction to the decision in Ukraine

The old guard reacted immediately to the decision – especially Andriy Portnov, ex-deputy head of the Yanukovych Presidential Office. He was considered to be the main authority dealing with legislation during the Yanukovych regime. Despite all his implications, he managed to defeat all the claims launched against him in the courts.

In the wake of the Revolution of Dignity, the Prosecutor General’s Office of Ukraine directed the Ministry of Internal Affairs and the Security Service of Ukraine to detain persons involved in the massacre of activists. Portnov was on that list, but he managed to escape to Russia. Later, he moved to Austria. In 2014, he was included in the EU sanction list. The next year, EU lifted the sanctions, and Kyiv Pechersk District Court ordered the end of investigations into Portnov. Clearly, even while abroad, Portnov managed to influence Ukraine’s politics — in particular, through his media affiliations, as he owned one company and was cooperating with others. Following the election of President Volodymyr Zelenskyy last year, he returned to Ukraine.

Portnov commented on the recent ECHR decision immediately after it was handed down, demanding that the government register a bill in Parliament to cancel the Lustration Law. In his turn, the Justice Minister Denys Maluska commented in Facebook:

“We will not sit on our hands, but will do everything to secure the rights of citizens and to retain the mechanism of lustration, at least in a limited format.”

The minister suggested a bill be drafted to establish a commission that would consider citizen complaints, where lustration is disputed. The commission would have the authority to reinstate a person to their previous position and compensate them for any forfeited salary. He added:

“The mechanism will not be related to the category of the citizens whose lustration was justified.”

Ivan Leshchyna, deputy minister of Justice and ECHR commissioner, also spoke to the court decision. He recalled the 2014 ECHR determination that the crisis in Ukraine warranted the lustration of government authorities. As explained by Leshchyna, the court ruled that there was a critical need to protect citizens from those who could be a threat to the vulnerable new democracy, and especially from those involved in large-scale corruption. He emphasized that previously the ECHR had only recognized the need for lustration with the velvet revolutions in Eastern Europe in autumn 1989. The Euromaidan revolution became the exception. When not considered individual-by-individual, lustration might only apply to a small number of officials that could be considered anti-democratic.

He emphasized that the process of lustration has to be individualized. Particular circumstances have to be taken into account. Non-individual lustration makes sense only when anti-democratic actions were obvious and could be presumed. Some officials would clearly meet these criteria. Throwing the net wide, however, where minor infractions had occurred, would also make sense. For example, in these cases, simple demotion would suffice.

The consequences of the ECHR decision

In October 2019 experts shared their thoughts on the ECHR decision in Ukrinform.

Valentyna Telychenko, a lawyer experienced in representing Ukrainians in the European Court did not see serious consequences arising out of the court’s decision. The court had recognized violations in the fair trial of three out of five cases, because the court hearings in Ukraine on their appeals against their dismissals were protracted as they lasted more than four-and-a-half years.

Mykola Syryi, a senior researcher at the Koretskyi Institute of State and Law, believes the reaction of thousands of these authorities can hardly be predicted:

“Regarding Ukraine, when undergoing a change in government, the state has to maintain the stability and ongoing function of state institutions; and to understand that lustration procedures were applied in 2014 as an action of an external, specific, and extraordinary nature. Moreover, they were utilized out of necessity. Going forward, we should stop rewriting this position and move on. The persons who have been dismissed have the opportunity to prove their point.”

Olena Tyshchenko, an international lawyer, believes it is unlikely that the 5,000 expelled officials will go to court, because it is technically complicated and very costly:

“However, those who want to be reinstated will do so and push their reinstatement through Ukrainian courts. These decisions clearly set the stage for repealing the law. Historically, lustration has been more or less justified in the presence of regimes that are seen as criminal. In Ukraine, everything ended on lustration, so it is essentially illegal as well. If Yanukovych and his inner circle were accused of seizing power, then pursuing his hierarchy would be more justified in terms of the law.”

The activists also point out that the Lustration Law remains the only restriction to Yanukovych’s cronies returning to Ukraine — due to the failure to act on the part of law enforcement institutions and to the lack of reforms within them.

Oleksandra Drik, head of the Declarations Under Control NGO, wrote the following on the eve of last year’s Parliamentary elections.

“Have any of them been punished? No. Have they confiscated property from anyone? No. Have any of them been barred from holding public office? Also no. After so many years of the ‘titanic’ efforts of the government, the only thing left is one little Lustration Law. It doesn’t even entail punishment, but only prohibits high-ranking officials who served under Yanukovych to return to their former public service management positions. For what? For those who replaced them five years ago to now be able to punish them through new law enforcement agencies and courts. However, during those five years we have only been told about the reform of the Prosecutor General’s Office, the Security Service, and the judicial reform, as well as the fantastic successes in the fight against high-level corruption on all levels of government. In fact, nothing has been done to punish the representatives of the previous criminal regime.

The pillar of the Yanukovych regime remains in power

Many representatives of the Party of Regions – the stronghold considered to be the pillar of the Yanukovych regime – remain in power. The only difference is that after the revolution they rebranded themselves in Parliament under the new name, Opposition Bloc. During those five years, this Yanukovych “stronghold” went through its own divisions and conflicts.

Opposition Platform & Bloc: Ukraine’s pro-Russian political forces and their chances

Regarding the current Parliament, the majority of the Yanukovych ex-stronghold joined the Opposition Platform for Life (Opozytsiyna Platforma Za Zhyttya), gaining 13% of votes and becoming the second-largest party in Parliament after the President’s Servant of the People.

Drik clarifies that the Law cannot prohibit these people from becoming MPs, because it would be a violation of their Constitutional rights to elect and to be elected. They have been forbidden, until 2024, to become ministers or prosecutors, or to hold other positions in the executive branch of power. However, they are promoting the idea of the cancelation of the Lustration Law.

As the 2020 local elections approach, additional representatives of the old guard can be expected to be elected. For example, Nellia Shtepa, ex-mayor of Sloviansk – the first city to fall under Russian aggression in 2014 (and it was liberated later that year) – has announced her plans to campaign in the city again.

German NGO strengthens civil society in Sloviansk, first victim of “Russian Spring”

In 2014, Shtepa was detained and accused of violating the territorial integrity of Ukraine which led to several deaths and the creation of a terrorist group.

Right after a pro-Russian armed terrorist group led by Russian FSB officer Igor Girkin seized the city of Sloviansk in April 2014, then-Mayor Shtepa threw her support behind the militants. During the six years of court hearings against Shtepa, judges have been replaced, and courts have been disrupted. In 2017, she was released and put under house arrest. Recently, the ECHR ruled Ukraine to pay EURO 3,600 compensation to Shtepa after considering her complaint against the long-term detention without alternative preventive measures.

Experts anticipate that influential leaders of local groups will play a significant role during the upcoming elections, under slogans such as “Vote For Our Own People!” – meaning, “Not for the minions from the capital.” As the parliamentary elections last summer demonstrated, in eastern Ukraine these “Own People” mostly represent the former Yanukovych stronghold.

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Edited by: Sonia Maryn
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