Several provisions in the Law On Lustration could be deemed unconstitutional

The judges of the Constitutional Court may consider the lustration law urgently

Photo: Ivan Chernichkin

Yesterday, the Supreme Court of Ukraine decided to appeal to the Constitutional Court (CC) with a request to assess the impact of the Law On Cleansing of Power on the independence of judges. The CC may pass down the ruling next year. It is possible that the judges will cancel a number of provisions of the Law On Lustration deeming them unconstitutional.

Presidential Administration is under suspicion

On Monday, the plenum of the Supreme Court decided by a majority vote to appeal to the Constitutional Court with a request to check certain provisions of the Law On Lustration, which took effect a month ago, for their constitutionality. In his address, Chief Justice Yaroslav Romanyuk said heads of district courts in Kyiv and the leadership of the Supreme Special Court were the initiators of bringing this matter to the plenum, because they saw limitation of the independence of judges in the Law On Lustration.

Public activist Karl Volokh, who was present at the plenary session, said that during the debate on the law a number of judges opposed the appeal of the Supreme Court to the CC. “Many judges were dissatisfied with this idea. They suggested keeping the court out of politics,” said Volokh. He added that Deputy Prosecutor General Oleh Bachun supported the appeal of the Supreme Court. In the end, 7 judges voted in support of the decision to appeal to the Constitutional Court, while 15 judges voted against it.

Volokh believes the voting results reflect the desire of judicial and prosecution authorities to suspend the Law On Lustration. The activist assures that the PA is also interested in this initiative. “One of the judges of the Supreme Court said in an informal conversation that the AP unofficially asked judges to support the report on the law to the Constitutional Court. The PA wants to block the law with the help of judges. This information was confirmed by other judges sitting on the sidelines,” said Volokh.

However, Viktor Chumak, one of the co-legislators of the Law On Lustration elected to the Verkhovna Rada on the list of the Petro Poroshenko Bloc, says that statements implicating the AP in the ruling of the judges are “only the opinions of social activists and journalists”. “Naturally, the law needs some improvements and when the new parliament gets back to work I will be ready to re-open this issue, but accusations about blocking of the law are a matter of responsibility of those who make them without substantiation or evidence,” said Chumak.

Noteworthy, the Supreme Court requested the Constitutional Court to examine its report immediately. Capital’s source in the Supreme Court clarified that examination of the appeal will take up to three months. The source added that the Constitutional Court could declare certain provisions of the law unconstitutional.

By the way, the Supreme Court became the second state body, which appealed to the Constitutional Court with complaints about the Law On Lustration. Volokh said that earlier such an appeal was submitted by the Foreign Intelligence Service.

Gowned war

Director of the Lustration Department in the Ministry of Justice Tetyana Kozachenko assured Capital that the appeal to the Constitutional Court with regard to the law would not slow down the lustration process. “The process of cleansing of power will continue according to the plan approved by the Cabinet of Ministers. Inspections of officials in ministries and central offices conducted by our department are ongoing,” said Kozachenko. She added that many civil servants falling within the purview of the Law On Lustration are resigning from their positions voluntarily. She also noted that the state register maintained by the Lustration Department already included the names of approximately 350 employees that did not leave their positions voluntarily. “Most likely they reserved their right to appeal to the court against their dismissal. Our department will check and systematize such cases,” said Kozachenko

Member of the Public Lustration Council at the Ministry of Justice Maksym Mankovskiy said activists have been registering many attempts of senior officials to circumvent the law. “Bureaucrats resist and seek loopholes to avoid lustration and preserve their positions or find new ones,” said Mankovskiy.

In particular, according to Capital’s information, several dozens of prosecutors challenged the law on lustration in court. Human rights activist Eduard Bahirov believes the law “does not provide clear rules for its application”. “This led to the legal chaos in the context of which various state agencies made conflicting statements about the law. It is no wonder that in this situation certain officials have a strong desire to circumvent the law,” said Bahirov. He also predicts the dismissed civil servants will file appeals to the European Court of Human Rights. “Everyone tries to challenge the decisions and sabotage work in favor of discrediting of the law, so that eventually those who wish to abolish the law can say that the law has such defects and errors. Then society will simply give up,” acknowledges Volokh.

Noteworthy is that yesterday the law was criticized by Head of the Department of the State Automobile Inspection Bureau at the Ministry of Internal Affairs Anatoliy Sirenko, who disagreed with the dismissal of his subordinates within the framework of the Law On Lustration.