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Lustration Guidelines

19.11.2014

Lesya Samarina, Attorney at Law,  Head of Dnipropetrovsk office, Ilyashev & Partners Law Firm
Source: The Yurydychna Praktyka

The Law places an obligation to go through lustration process not only on public officials, but also on the heads of the state enterprises

880Purge of public officials in Ukraine has always been and remains one of the demands put forward by Euromaidan activists. It needs to be noted that previously the national legislation did not contain provisions related to the lustration procedure.

Adoption of lustration-related legislation and its application split post-communist Europe onto advocates and opponents of lustration. Lustration took its harshest forms in the countries where civil society resisted the communist regime the most, namely in Czech Republic and Poland.

In post-communist states, where representatives of the former regime remained in power, lustration was not performed or was not formalized in legislation (the Russian Federation, Belarus, Romania, and Moldova). Countries where post-communist parties returned to power again following anti-communist revolutions went through milder forms of lustration process which gradually died down (Hungary, Slovakia, and Bulgaria).

Objects of the screening process

After the adoption of the Law of Ukraine “On the Purging of the Government” (lustration) (the “Law”),  the state embarked onto a difficult path of its implementation. Criticism of certain provisions comes up against the inevitability of their application. However, despite the negative reviews and discussion of amendments introduced into the original version of the Law, which made it “less stringent”, on October 16, 2014 the Law came into force. The adoption of the Law resulted in removal of hundreds of civil servants out of public office. Employees of state enterprises are also concerned with questions surrounding the ongoing procedure and near-term prospects. So what’s in store for them?

According to the Law civil servants who occupied positions in the Communist Party of the USSR or of one of the Soviet Republics (from district committee secretary to higher posts), in Komsomol organizations, as well as who served in KGB are subject to lustration screening.

Subject to dismissal will also be those officials who within the period from February 25, 2010 till February 22, 2014 occupied highest office state positions for the period exceeding one year or occupied chief executive state posts for the period less than one year from November 21, 2013 till February 22, 2014 and did not resign on their own accord.

Apart form that the Law places an obligation onto the heads of the state enterprises (including enterprises of military-industrial complex and enterprises related to managerial sphere of the subject of provision of administrative services) to undergo so-called “property lustration”.

The mentioned process allows to compare compliance of all the property mentioned in the Income Declarations of the state officials and memebers of their families with the amount of their profits gained from legitimate sources while in public office. If they fail to undergo lustration process, they will be banned from occupying official posts for the duration of ten years.

The lustration procedure is governed by the following provisions: Law of Ukraine “On the Purging of the Government”, the Resolution of the Cabinet of Ministers of Ukraine (the CMU) “Certain matters of implementation of the Law of Ukraine on lustration” as of October 16, 2014 No. 563, Ordinance of the Cabinet Ministers of Ukraine “On approval of the plan of inspections in accordance with the Law of Ukraine “On the Purging of the Government” as of October 16, 2014 No. 1025-p (ordinance No. 1025-p).

An obligation to organize lustration checks is placed upon a head of a corresponding official body empowered to dismiss an employee in relation to whom a checkup is performed. Such officail makes a decision about initiating lustration checkup, establishes the date of its commencement, as well as defines a structural subdivision responsible for performance of the said procedure.

Take under advisement

According to the plan of lustration screening, approved by the Ordinance No. 1025-р corresponding checkups of the heads of the state enterprises are planned to be performed in March-May 2015.

The decision to start the screening will be published on the day of its adoption at the official web-site of oficial body subject to lustration and on that same day the process responsible structural units of such body must communicate such information to the the persons subject to the lustration.

Within a ten-day period following lustration checkup at the certain official body a person subject to lustration process is obliged to submit a handwritten note confirming that no statutory limitations apply to him, as well as stating his consent for undergoing screening process and disclosure of its results.

The form of the said note is stipulated by the CMU Resolution No. 563.

Failure to submit a note within the specified period constitutes the basis for removal of a person from his office no later than on the third day following expiration of the deadline for submitting the said note and application to such person of the prohibition to hold a corresponding office until October 16, 2024.

Submitting a note in which the person states that he is subject to the corresponding prohibition constitutes the basis for dismissal of such person from his office no later than on the third day following the day of filing such note and application to him of a corresponding prohibition.

Indication of deliberately false information into the mentioned note entails criminal liability stipulated by article 366 of the Criminal Code (forgery).

In addition, within a ten-day period from receipt of a consent-note from the person subject to lustration screening a corresponding structural subdivision in charge of such screening will verify credibility of the corresponding information on the basis of information contained in the personal file of such person for inapplicability of statutory prohibitions to such person.

Should any information about applicability of one of the mentioned prohibitions to the person under the screening process be revealed, the head of the corresponding official body shall make a decision (not later than on the third day from revealing such information) on dismissal of such person and send a copy of such decision to the Ministry of Justice of Ukraine. Within a three-day period the information about the mentioned person shall be entered into the Register of persons with respect to whom provisions of the Law of Ukraine “On the Purging of the Government” apply.

Apart from that, within three days from receipt of the note from the person granting consent for his screening the chief sends corresponding requests to the competent state authorities for the purpose of finding other grounds for applying to such person of the prohibitions specified by this Law.

Based on the response/conclusion/copy of the court resolution received from the monitoring authorities a corresponding structural subdivision prepares a certificate about the results of the screening within a one-day period and submits it to the head official of the corresponding body.

Not later than on the third day after the receipt of the response(s)/conclusion/copy of the court decision the head of the official body will review the certificate on the results of examination of the person, on the same day will send to the Ministry of Justice a copy of the certificate on the results of the screening of the person to whom the prohibitions do not apply, or in case of establishment of inadequateness of information, will make a decision on dismissal of the person and on the same day will sent to the Ministry of Justice a copy of the mentioned decision and a copy of the certificate on the results of screening, information from which will be entered into the register within three days from the date of its receipt.

In this case the basis for the dismissal is represented by paragraph 72(1) Article 36 of the Labor Code: by virtue of the provisions stipulated by the Law of Ukraine “On the Purging of the Government”.

Accordingly, a person who failed to successfully undergo lustration process will not be allowed to occupy official positions indicated in parts 1, 2, 4 and 8 article 3 of the Law.

All the screening materials received by the chief executive officer of the corresponding official body shall be attached to the personal file of the corresponding person.

Conclusions about verification of authenticity of the results on availability of the property (proprietary rights) listed in the declaration for the previous year filed by the person, and/or discrepancy between the cost of property (proprietary rights) indicated in the person’s declaration acquired throughout the period of his time in the office and the profits gained from lawful sources, as well as the decisions of the chief executive official of the corresponding body regarding the dismissal of an employee may be appealed to the court of law.

 
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