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Plunging into Lustration


Ruslan Bandurystyi, attorney at law at Ilyashev & Partners Law Firm
Source: The Ukrainskyi Yuryst

Despite the importance of the approved the Law on Lustration, only its practical application will show whether public expectations prove true


What are the most controversial provisions of the Law on Lustration?

According to the explanatory memorandum to the draft Law of Ukraine “On Purging of Government” adopted by the Verkhovna Rada of Ukraine, the law was adopted for establishment in the society of the rule of law, legal order, improving efficiency of fight against corruption, restoring trust in government and creating conditions for a new system of authorities in accordance with the European standards. Obviously, at present our country desperately needs the law drafted to achieve this goal.

The question arises whether the said law guarantees that its application will be truly fair and will ensure reasonable balance between the need to restore credibility to government and legal rights of individuals who will be subject to inspection under this law. It is also crucial to determine a legal nature of lustration as interpreted by the Law of Ukraine “On Purging of Government”. Can we assume that lustration is a kind of legal responsibility? Responsibility for what kind of offenses?

Obviously, it cannot be referred either to criminal, or administrative, or disciplinary responsibility. However, based on the rules of the law, the concept of lustration means nothing more than some kind of deprivation and legal restrictions for a certain group of people for commitment of acts or omissions as specified by the law. Further, the lawmakers noted in the explanatory memorandum to the draft law as follows: “Introduction in Ukraine of a mandatory verification procedure during designation/election to positions in government agencies (public agencies), as well for those who already occupy these positions will enable to bring to the higher public positions the persons who have not collaborated with the past political regime, and purify the administrative apparatus of the persons colluded with abuses of the past government, including the government, which ruled before declaring independence of Ukraine”. Firstly, grounds for lustration defined in this law do not comply with elements essential to the offence as set forth by the law. Secondly, the presumption of innocence implies that guilt is proven by a court verdict. In addition, under Article 58 of the Constitution, the laws have no retroactive effect and no one can be responsible for the actions that at the time they occurred were not deemed offenses.

Therefore, we shall possibly expect clarification of the issue in legal precedents and, most likely, by the Constitutional Court of Ukraine.

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