Developments in Ukrainian Lustration

The European Court of Human Rights issued a ruling saying that the Government Cleansing Act passed by the Ukrainian parliament had violated the human rights of at least some lustrated officials.

By: Robert Casty, staff member

In early 2014, Ukrainian protestors ousted President Viktor Yanukovych and forced new elections. The protests, originally motivated by widespread public demands for Yanukovych to sign an association agreement with the European Union, transformed into a broader anti-government and anti-corruption movement when Yanukovych and the security services responded with violence that killed numerous protestors.

Amongst the demands of this movement, popularly known as “Euromaidan” and the Revolution of Dignity, was the removal and banning of Yanukovych regime officials from future governments. This program is also known as “lustration,” a transitional justice technique that has seen widespread use across the globe and particularly in post-Soviet Eastern Europe. Shortly thereafter, the new Ukrainian parliament passed the Government Cleansing Act (GCA), which entered into force on October 16, 2014. Almost exactly five years later, the European Court of Human Rights issued a ruling saying that the GCA had violated the human rights of at least some lustrated officials.

The GCA establishes several categories of individual who face bans from specified government positions. The law banned the following groups for ten years: (1) individuals who served in high level government positions for at least one year between February 2010 and 2014; (2) individuals who held certain positions in the military, police, judiciary, or media between November 2013 and February 2014 (the general time frame of the Euromaidan protests); (3) individuals who were high-ranking communist officials or KGB agents during the Soviet era; and (4) those found to have violated certain provisions of Ukrainian anti-corruption law.

The GCA also bans some officials for five years: (1) judges, prosecutors, and law enforcement involved in suppressing the Euromaidan protests; (2) central and local government officials who, through action or inaction, attempted to prevent the Euromaidan protests or limit their ability to peacefully assemble; and (3) officials shown to be collaborators with foreign governments in undermining the territorial integrity and national security of Ukraine or otherwise violated human rights.

Additionally, the GCA requires that anyone applying for a covered government position submit an application stating that the lustration measures do not apply to them, that they willingly submit to an investigation to corroborate this, and that they consent to have information about them made public in accordance with the GCA’s provision for a public registry of individuals subjected to lustration. That registry is searchable and freely available online.

The law was subject to almost immediate challenge on a variety of grounds, both from the Ukrainian legal establishment and from officials targeted for lustration. These challenges have moved through the Ukrainian court system extremely slowly, and Ukraine’s Constitutional Court has yet to rule on the constitutional validity of the law. Last month, however, the European Court of Human Rights ruled that the GCA violated Articles 6 and 8 of the European Convention on Human Rights.

Article 6 establishes the right to a fair trial, within a reasonable amount of time, before an independent and impartial tribunal. The Article 6 violation, then, is fairly simple – the ECHR found that Ukraine had violated its obligations to provide a speedy judicial process. The ECHR opinion noted that challenges to the GCA had been pending before the Constitutional Court for about four years, when Ukrainian law typically requires cases under its review to be considered within three months. While this was not dispositive on its own, the ECHR determined that there was no valid reason given for such a lengthy delay, and that accordingly the petitioners’ Article 6 rights had been violated.

Article 8 governs the right to a “private and family life,” in this context essentially a freedom from state interference in the privacy of their employment without good cause. The Article 8 violation is more significant. The ECHR expressed concerns that the law was to some extent driven by a desire for revenge against the Yanukovych regime, noting that vengeance and retribution were not valid goals of lustration under international law. The court also cited the fact that the Yanukovych government had won power in democratic elections (although Yanukovych quickly consolidated power thereafter) and that, if done before the officials in question had their appeals heard, publication of names of lustrated officials on a public registry was legally problematic.

Most importantly, the court found that the GCA failed to adequately consider the individual circumstances of each official subject to lustration. For example, the court noted that, while several of the petitioners were indeed officials in the Yanukovych administration, they had been appointed to their roles long before the Yanukovych presidency, and the government had not shown any evidence of connection to human rights abuses or corruption. Accordingly, it found the GCA was overbroad and disproportionate, violating the rights of the lustrated officials in question.

This is far from the first lustration law in Eastern Europe to run up against judicial resistance. Early attempts at lustration laws in both Poland and Romania faced serious constitutional obstacles, and Romania has largely done without as a result (although some scholars consider it and other states to have enacted “silent lustration” by opening the records of the security services to the public). There are, clearly, ways to approach lustration that do not so directly run afoul of international courts.

Nonetheless, the ECHR’s ruling has important implications for future such programs. In July 2019, newly-elected Ukrainian President Volodmyr Zelensky proposed a new lustration law, this time targeting former officials from the regime of his predecessor, Petro Poroshenko.  The new proposal has attracted greater international criticism than the GCA, both because Poroshenko peacefully turned over power after a relatively free and fair election and due to the perception that the Poroshenko administration did not commit abuses rising to the level of those of the Yanukovych regime. Indeed, the new proposal is suggestive of many of the ECHR’s concerns with the GCA, particularly its distaste for lustration laws driven by vengeance against previous, democratically-elected administrations.

Scholars in the transitional justice field have long suggested that corruption and economic abuses might be legitimate grounds for lustration. By most accounts, Ukraine under Poroshenko continued to struggle with high-level corruption (as it does today), and most of the country had lost confidence in Poroshenko by the end of his term in office. The ECHR ruling suggests, however, that broad bans like the GCA and the 2019 proposal will face more than mere diplomatic resistance, and that some degree of individualized evaluation will be necessary in order for future lustration laws to meet international standards. Within a week of the ruling, news reports indicated that a member of President Zelensky’s own party had put forward a bill to terminate the GCA.

Robert Casty a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. Robert graduated from Georgetown University in 2014 with a B.S. in International Relations and a Certificate in Eurasian, Russian, and Eastern European Studies.