Fake Lustration

Fake Lustration

Hanna Maliar, PhD in Law, criminologist

The Constitutional Court is now considering whether certain provisions of the Lustration Law abide by the Constitution. While waiting for the Court decision, MPs threaten to stop lustration or warn about public protests.

It is easy to manipulate public opinion when people don’t read the text of the laws. To answer who is to blame for the failure of lustration, it is necessary to examine it.

Does the law actually make lustration possible?

Careful reading suggests that the law evidently prevents lustration. According to Article 1 of the law setting the principles of lustration, only three categories of persons may be subjected to it:

1) Those who contributed to the power grab by President Yanukovych by their decisions, actions or omission;

2) Those who contributed to the disruption of national security and defense

3) Those who committed grave violations of human rights and freedoms.

It means that whatever office a person held during the Yanukovych regime, he/she may not be subjected to lustration if he/she doesn’t fall under any of the three categories above. If he/she did commit such crimes, the court sentence against him/her should be enacted first; only upon that can lustration apply.

The text of all the other articles of the law is rubbish that contradicts the principles and goal of lustration set forth by the same law. It means that lustration is legal only if it concerns the crimes listed above.

And it’s nothing else but the duplication of the existing legislation.

The liability for these crimes was established long time ago. It was probably the reason why the Lustration Law is full of romantic dreams that have nothing in common with real law enforcement.

What’s behind the fake lustration?

It turns out that Article 1 was drafted by a visionary, while the other text suffered influence from various political parties, poorly-educated activists and others who are clueless about the real lustration process.

1. One ‘extremely homophobic party’ managed to ramrod a provision on the lustration of persons who had held top positions in the Communist Party of the Soviet Union or who had been KGB officers or secret informants.

The MPs who voted for it should have known that such lustration is not feasible. The European Court of Human Rights in Sidabras and Džiautas v. Lithuania decided that lustration of former KGB officers is discriminatory and should be banned, because the respective Lithuanian law had been adopted late – nine years after Lithuanian independence. It is obvious that the ECtHR will apply this decision to the Ukrainian case as well, and Ukraine will have to pay compensation to these Communists from the state budget. So, what was the reason to include this provision in the law?

2. Can judges undergo lustration pursuant to this law?

The law reads: lustration doesn’t apply to elected offices. Look at Article 85 of the Constitution - it states that after an initial five-year term, judges are elected for an indefinite term. It means that only ‘neophyte’ judges can be subjected to lustration, and only if they are convicted by a court for having committed the respective crime.

Some more loopholes to escape lustration:

3. Officials recognized as combatants in Donbas are free from lustration. Many of them have already made it to the warzone to receive such status.

4. The President has the right to ‘pardon’ officials who are subjected to lustration. This ‘pardon’ may be granted to "top army officers who hold or held positions in the Ministry of Defense, Armed Forces, State Border Guard Service, National Guard of Ukraine and other legitimate military units."

5. Finally, the MPs neglected the fact that the current President was a Minister in a former Azarov Cabinet so that nobody will smell a rat. According to the Law, lustration applies only to persons who were holding offices for at least one year from February 25, 2010 to February 22, 2014. Poroshenko served as Economy Minister only for nine months in 2012.

After all, who may be subjected to lustration?

It appears that lustration may apply only to those who should be criminally liable even without the Lustration Law.

All other victims of lustration will be legitimately reinstated in their positions by the ECtHR, if not by Ukrainian courts.

To conclude: lustration was bungled by law-makers and those who voted for it. And it’s all about ignorance. At least, I want to believe that it was ignorance rather than loyalty to the previous regime.

Lustration is possible only when the political regime and social fabric change. It did not happen in Ukraine during 2013-2014. Ukraine was ruled by a gang of criminals who had to be immediately arrested, prosecuted and sentenced to maximal terms of imprisonment.

However, the political will was only enough for fake lustration.