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Will the European Court of Human Rights Protect from Lustration?


Dmytro Shemelin, Lawyer at Ilyashev & Partners Law Firm
Source: The Yurydychna Praktyka

Lustration, a matter recently discussed on a wide scale, is not a unique phenomenon: Poland, the Czech Republic, Hungary and Latvia had seen lustration where thousands of people were influenced by lustration restrictions. There also was denazification in Germany and even De-Ba’athification in Iraq. The current practice of the European Court in lustration cases, however, is relatively narrow, although certain conclusions on its basis can be reached.

shemelin_960First conclusion: lustration itself does not contradict the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). The European Court has not yet outlawed lustration in any of the cases under its review unless certain procedural guarantees are followed (see especially Matyjek v Poland, 38184/03, Judgment of 24.4.07, 62, Chodynicki v Poland, 17625/05, Decision on Admissibility of 2.9.08).

Second conclusion: lustration is not a form of responsibility and such principles as presumption of innocence, ascertainment of individual guilt, interpretation of doubts in favor of the defendant, etc. are not applicable to it.

This position of the European Court is not very evident – in its consequences lustration restrictions can be compared with certain criminal penalties. In its Recommendation to the Constitutional Court the Plenum of the Supreme Court also interpreted lustration as responsibility and insisted on necessity to respect the presumption of innocence and ascertainment of individual guilt.

The European Court determines whether a certain judicial proceeding constitutes a “criminal charge” according to so-called “Engel criteria”, which apply “cumulatively”, i.e. in a parallel and collective manner (see Engel and others v The Netherlands, 5100/71, 5101/71, 5102/71, 5354/72, 5370/72, Judgment of 8.6.76, 82-83, and Ezeh and Connors v The United Kingdom, Campbell and Fell v The United Kingdom, Ozturk v Germany, Lutz v Germany, Benham v The United Kidngdom, Lauko v Slovakia, Janosevic v Sweden etc., including the most recent judgment of the Court in the case Ceccetti v San Marino, 40174/08 , Decision of 9.4.13, 22-23).

Along with the Engel criteria, the Court is also guided by other similar criteria (see. Bendenoun v France, 12547/86, Judgment of 24.2.96, 47). It is believed that all these criteria as a whole fit into a single scheme (Jussila v Finland, 73053/01, Judgment of 23.11.06, 32).

As a result, among the criteria of the criminal proceedings the Court distinguishes (a) classification of a punishment as criminal one pursuant to the laws of the respondent State; (b) distribution of responsibility onto an indefinite number of persons and not to a specific group; (c) the nature of the responsibility is in application of punishment and prevention of violations; (d) responsibility requires establishment of guilt; (e) the severity of responsibility.

Having reviewed these criteria “cumulatively” in European lustration cases, the Court did not recognize lustration as a criminal process, thus not applying specific guarantees of the criminal procedure: see. Zdanoka v Latvia, 58278/00, Judgment of 16.3.06, 124; Žičkus v Lithuania, 26652/02, Judgment of 7.4.09, 39.

Ukrainian lustration is not considered to be a criminal penalty under the law; it applies only to a specified group of persons; it does not require establishment of guilt. The situation is more complicated with “punishment and prevention”. On the one hand, lustration is a one-time process. Unlike criminal law, the legislator does not expect that following adoption of the lustration law grounds for its application will arise again. On the other hand, among the causes for lustration the law mentions a coup d’etat attempt, undermining the foundations of national security and violation of human rights. The said means that lustration is still associated with a certain type of vengeance.

Third conclusion: the European Court defines lustration as an administrative restriction of the right to hold public office positions. Accordingly, it is analyzed by the Court under the general rules of “margin of appreciation” concept. The Court balances the restriction of the rights of a particular individual and the interests of the society with all relevant requirements: legality, proportionality, due process, etc. (as an example, see Turek v Slovakia, 57986/00, Judgment of 14.2.2006, 111; Zdanoka v Latvia, 58278/00, GC Judgment of 16.3.06, 106; Žičkus v Lithuania, 26652/02, Judgment of 7.4 .09, 31). Let’s cast a quick glance at the most important problems.

Firstly, in the majority of the existing cases the Court recognized that lustration serves the public interest. Communist functionaries had to be removed from power to prevent going back “to the past”. Nevertheless, when time was going by the associated risk was decreasing on its own and together with it justification of lustration measures has also deceased. Ten or fifteen years after the collapse of the Soviet Union the Court started to uphold that in itself being a member of the Communist Party can hardly justify lustration: too much time has passed (see Sidabras and Džiautas v. Lithuania, 55480/00, 59330/00, Judgment of 27.7.04; Rainys and Gasparavičius v. Lithuania, 70665/01, 74345/01, Judgment of 7.4.05; Zawisza v Poland, 37293/09, Judgment of 31.5.11, 36; Moscicki v Poland, 52443/07, Judgment of 14.6.11, 37). Similar considerations can be applied to the “communist” part of Ukrainian lustration, which has been initiated with a 20-year delay following the dissolution of the Soviet Union.

Secondly, of fundamental importance is not so much the text of the lustration law as the process of its practical application. The European Court allows the possibility of lustration only if all the necessary procedural guarantees of the “defendant’s” rights are observed.

The requirement of due process inter alia stipulates for: a possibility to study the clearly formulated grounds for lustration, the possibility to appeal the lustration decision to an independent court, the right to protection and equal treatment of the parties, as well as other generally recognized procedural rights.

The majority of lustration proceedings against Poland were won exactly on procedural grounds. In particular, in cases where lustration was based on the information received from the security services “the defendants” had to be provided with full access to all classified documents and with a possibility to make copies of such documents; they also had to be allowed to take notes and make extracts; the final decision had to be disclosed in full, including its classified part, etc. See Bobek v Poland, 68761/01, Judgment of 17.6.07; Luboch v Poland, 37469/05, Judgment of 15.1.08; Jalowiecki v Poland, 34030/07, Judgment of 17.2.09; Rasmussen v Poland, 38886/05, Judgment of 28.4.09; Gorny v Poland, 50399/07, Judgment of 8.6.10; Tomasz Kwiatkowski v Poland, 24254/05, Judgment of 19.4.11; Moczulski v Poland, 49974/08, Judgment of 19.4.11; Zablocki v Poland, 10104/08, Judgment of 31.5.11 and others.

Similar decisions regarding failure to follow the adequate procedure were upheld in the proceedings initiated against other states: Turek v Slovakia, 57986/00, Judgment of 14.2.06, 115-116.

Thus, a brief analysis of practices in lustration cases suggests that with a high probability lustration in itself will be legitimate for the European Court. However, much will depend on practical compliance with a proper lustration process and observance of rights of people subject to lustration.

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