Ukraine: Two Understandings of Lustration

The following is a guest post by Peter Roudik, director of legal research at the Law Library of Congress.  He has written a number of posts for In Custodia Legis, including on “Crimean History, Status, and Referendum,” “Regulating the Winter Olympics in Russia,” “Soviet Law and the Assassination of JFK,” and the “Treaty on the Creation of the Soviet Union.”

A few days ago a reporter called and asked for my thoughts about a video showing a rowdy and apparently cheerful crowd in front of Ukraine’s parliament building chasing a legislator and throwing him into a dumpster.  I undertook some Internet research and found that a flash mob campaign called “trashcan lustration” had been initiated by the opposition Radical Party with the aim of literally trashing the old generation of Ukrainian politicians.  The campaign started in the southern city of Odessa where a local official accused of extorting a US$45,000 bribe was taken out of his office by angry citizens and placed in a dumpster.  Later, this way of communication between voters and elected officials was extended to Kyiv where several members of the Verkhovna Rada (legislature) experienced similar punishment.

Reports have stated that the actions of the people involved are due to frustration at the slow pace of reforms in the country and dissatisfaction with the country’s bureaucrats.  Of course, people have also expressed the view that such methods are not the best way to resolve problems, and that hopefully people can find solutions within the legal and political framework.  This campaign goes under the motto of “lustration.”  This word comes from a Latin term meaning purify or cleanse by sacrifice, and it is commonly used to describe the political process of purging government institutions of officials associated with the old regime.  For about ten years, Ukrainian pro-democracy forces unsuccessfully attempted to initiate lustration.  In neighboring Poland, Hungary, Czech Republic, Romania, Georgia, and three Baltic states laws banning former Soviet apparatchiks and KGB agents from working in government institutions were seen as bringing new people interested in pushing democratic reforms into government.

The first, very limited, attempt at lustration under the law in Ukraine was undertaken in April 2014. The law, which was passed following street protests in Kyiv that took place during the period from November 2013 to February 2014, subjected judges who made decisions in cases concerning participants of these protests to special review.  However, instead of reviewing the general fitness of a judge, the law was seen by some as imposing extrajudicial control over rulings, thus further limiting judicial independence.  More recently, on October 9, 2014, the President of Ukraine signed a new law on “Cleansing the Authorities.”  The purpose of this law is to “restore public trust in government authorities and create conditions that allow the building of a new system of power in line with European standards.”

If the new law is implemented, about one million local and national government employees, including military personnel and law enforcement officers, will be fired from their jobs. The law includes a timetable for checks on officials and makes all high level officials in the executive and judicial branches of government subject to mandatory firing if they worked in their positions for at least one year during the presidency of Viktor Yanukovych, whose term started on February 25, 2010, and continued through February 22, 2014, when he left the country.  Those who did not resign and continued to serve in their positions during the November 2013 to February 2014 street protests will also be purged.  These people will be prohibited from government positions for the next ten years.  Additionally, they will be subjected to so-called “property lustration,” which means that they and their family members will have to prove the legality of the means they used to buy property during their government employment.  This requirement will also apply to leaders of all provincial and local government authorities and heads of government enterprises.

A ten-year government employment ban will also be applied to those who held leadership positions in Communist Party institutions during the Soviet period or worked for the KGB.  Agents and secret informers of foreign intelligence services, and individuals who have made any public statements encouraging the disintegration of Ukraine or the violation of its sovereignty during the course of the ongoing conflict between Russia and Ukraine, will be banned from government employment for the next five years.  A five-year employment restriction will also apply to judges who ruled against protesters during the protests in Kyiv.  Police officers, tax officials, and personnel of correctional institutions as well as drafted military personnel will not be checked under the lustration law.

The law reflects the idea that public elections are the best form of lustration.  That is why the current President of Ukraine, who served as Minister of Commerce in Viktor Yanukovych’s Cabinet in 2012, is exempt from lustration together with the legislators and other elected officials.  This exemption will apply to all 450 members of the Verkhovna Rada who were elected yesterday, on October 26, 2014, to serve as the country’s legislators for the next five years.  These members of parliament will face numerous legal and political conflicts, including those related to the implementation of the Law on Cleansing the Authorities, but first of all they will have to find legislative responses to current revolutionary challenges and keep Ukraine on the rule of law path.

For more information on legal developments in Ukraine and to access Ukrainian legal materials, please contact the Law Library of Congress.