A dangerous precedent. The ECHR decision on lustration

Опасный прецедент. Решение ЕСПЧ по люстрации

Ukraine ordered to pay compensation ilustrirovannij officials of times of Yanukovych’s presidency.

The European court of human rights ruled to satisfy the claims of the five lyustrirovannyh officials and to pay them from the state budget compensation, and criticized the Ukrainian law About the cleansing power.

The public Prosecutor Ruslan riaboshapka expressed concern that a high-profile decision of the ECtHR could provide a loophole for other officials of times of Victor Yanukovych and urged Parliament to revise the current law on lustration. Корреспондент.net tells details.


I decided the ECHR

On 17 October the European court of human rights issued a decision which ordered Ukraine to pay cash compensation in the amount of 5.3 thousand to 6.5 thousand euros five dismissed under the law about the cleansing power of former officials in connection with infringement of their rights.

The ECHR has also recognized the Ukrainian law on lustration less targeted and narrowly focused compared to the procedures of lustration, introduced in other States of Central and Eastern Europe.

The lawsuits filed by the former Deputy chief of the personnel Department of the Prosecutor General Vyacheslav Polaha. In the list of victims became functionaries of Mykolaiv, Chernihiv, Ivano-Frankivsk and Donetsk regions, dismissed under the law About the cleansing power. Is Dmitry Basalaev, Alexander Yas, novel Yakubovsky and Sergey Bondarenko.

For the first three grounds for dismissal was the work of the civil service during the reign of Viktor Yanukovych. Another lost his job for that untimely filed on lustration verification. The fifth claimant was dismissed due to the fact that he occupied the position of second Secretary of the Communist party in the Soviet period of Ukraine.

In their statements, the Complainants pointed to the violation of two articles of the Convention on human rights – article 8 (right to respect for private life) and article 6 (right to a fair trial).

“The law did not account for the personal role played by the appellants and whether they were personally associated with non-democratic activities that took place during the reign of the former President”, – is spoken in the decision of the ECHR.

In this respect, the laws in Ukraine are different from the procedures of lustration, which were introduced in other States of Central and Eastern Europe.

The court also ruled that Ukraine, as a state, the Respondent must pay the applicants within three months from the date when the court decision becomes final, five thousand euros to each applicant, plus taxes.

In this case, the ECtHR rejected the remaining applicants ‘ request for fair compensation.

Thus, the court found that the three applicants the right to a fair trial within a reasonable time was violated, since judicial procedures for their dismissal are already more than 4.5 years and still not completed.

The European court also decided that the law of Ukraine about the cleansing power applies to a very wide circle of people and led to the dismissal of the applicants on the sole ground that they held posts in the civil service for more than a year during the presidency of Yanukovych or on the basis of their positions in the Communist party until 1991.

The Deputy Minister of justice of Ukraine, Commissioner for the ECHR Ivan Lyschina said that the judgment has not yet entered into force, the state has three months to appeal the decision to the Grand chamber of the ECHR and the government “will make a decision on this issue”.


Lawsuits will be more

The law On the cleansing power against the officials of times of Victor Yanukovych came into force in autumn 2014. As of April in Ukraine lyustrirovali 914 officials.

In 2015, the MPs appealed to the constitutional court with a request to test the law for compliance with the Constitution, also two representations filed by the Supreme court. Consideration of the constitutionality of the law to the constitutional court have been disrupted, delayed, or postponed for an indefinite date several times already.

In the Ukrainian courts ilustrirovannij officials are unable to recover because their claims are not accepted, referring to the fact that the constitutional court has not considered the representation of 47 people’s deputies.

“When five years ago was voted the law we have warned about these consequences, because there laid a very dangerous process for human rights violations, and it was only a matter of time when they will appear. Now our warnings confirmed of the ECHR,” – said the Chairman of the Board of the Ukrainian Helsinki Union for human rights, Yevhen Zakharov.

He calls this law is politically driven, which completely discredited the idea of lustration.

“It was an emotional and populist law, its provisions are drawn so that their remained in office, and all the undesirables it was possible to fire”, – said Zakharov.

The attorney-General Ruslan riaboshapka the evening of 20 October in the air ICTV said that a significant portion of lustrated prosecutors can recover positions after the decision of the ECHR.

Ryaboshapka believes that now the Verkhovna Rada in the first place, should make the decision according to the current law on lustration and accordingly to adjust it so that it meets European standards of human rights.

The attorney General noted that the number of prosecutors in Ukraine per capita is one of the largest in the world, so it is expected a further reduction of “at least 25-30 percent.”

Experts also expect that some part of lustrated officials after the decision of ECHR will present their complaint in this court, to try to be reinstated and to receive from the state compensation for moral damage.

As noted human rights activist, member of the National Council for anti-corruption policy under the President of Ukraine Larysa Denysenko blog on the website of DW, the ECHR decision was partly due to the protracted silence of the constitutional court.

“Now, at the KSU emergence of influential international legal “roof”, can be sound more boldly, and to all accusations of bias, shyness, bias point to the decision of the court in Strasbourg. We can therefore expect that now and KSU recognizes some provisions of lustration law unconstitutional,” said human rights activist.

Denisenko also fears that later will be partially recognized as violating the rights and freedoms of the individual and the decommunisation and functioning of the state language.


Zelensky wants to expand lustration

That the Ukrainian law About the cleansing power is not fully consistent with European standards and the rule of law, has repeatedly warned of the Venice Commission.

The previous government, the changes are not made, and the new President, Vladimir Zelensky even offered to extend the lustration to officials of the presidency of Petro Poroshenko, in particular, to lustrate former President, all former MPs, government members, Prosecutor General, Chairman of the SBU, the Secretary of the NSDC.

In July Zelensky introduced to the Verkhovna Rada his proposals for amendments to the law on lustration. However, in the new Parliament the bill the President has not yet re-registered.

However, the recently adopted the presidential bill on judicial reform we are talking about the use of lustration to members of the High qualifications Commission of judges and State judicial administration, worked in their positions from November 21, 2013 may 19, 2019 at least one year.

The representation of the EU in Ukraine and the Embassy of many countries in the West have criticized Kiev the extension of lustration. About this in detail in the material that criticized the judicial reform Zelensky.

Denisenko calls the extension of the lustration law “populist revenge”, since the change of power in Ukraine took place in accordance with democratic procedures and the elections were considered fair.

“This statement (Zelensky on lustration – ed.) is nothing but a populist revenge: the servant throws “selling skins” predecessors under the feet of people… But any law must serve the rights and freedoms of the person and not to fulfill a social role, to legitimize a sweep or revenge,” – said human rights activist.


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