(Berlin) – A law passed by the Ukrainian parliament on April 8, 2014, violates guarantees of judicial independence and should be set aside.
The law spells out circumstances that, outside of normal disciplinary proceedings, could cause a judge to be placed under review and face dismissal from holding judicial office (lustration), including making “politically motivated decisions.” A judge who fails a review would be subject to immediate removal from any court proceedings and then dismissal. The bill lacked adequate public consultation and review by authoritative international bodies such as the Council of Europe’s European Commission for Democracy through Law (the Venice Commission).
“It is understandable that people in Ukraine want to ensure that judges aren’t complicit in corruption and human rights violations,” said Hugh Williamson, Europe and Central Asia director at Human Rights Watch. “However, rather than helping to restore confidence, the law adopted to purge judges is overly broad, tainted with political bias, and violates the independence of the judiciary, which can only deepen mistrust in an already fractured society.”
Human Rights Watch urged the interim leader, acting President Oleksandr Turchynov, not to sign the law.
The law, On Restoring Confidence in the Judiciary, provides that judges may be subject to review if they made one of a range of decisions. Those include a decision that restricted meetings, rallies, and marches during the protest period from November 21, 2013, through February 21, 2014, or that concerned parliamentary elections and resulted in violations of electoral law or could have had an effect on the outcome in several electoral districts. Judges would also be subject to lustration review if European Court of Human Rights judgments challenged their decisions, even though the court issues at least 700 rulings annually challenging the decisions of national courts throughout Council of Europe countries.
The review is to be conducted by a lustration committee, whose members are appointed by the Supreme Court of Ukraine (five members), the parliament (five members) and the government commissioner for anti-corruption policy (five members).
Human Rights Watch said the committee’s membership structure – with a majority of members appointed by the government and parliament – politicizes the committee. Human Rights Watch also said the law lacks adequate guarantees of independence of the committee’s members and of due process for anyone required to appear before it.
Ukraine is bound by both the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Any measures to address judicial corruption need to comply with its treaty obligations and in particular with basic principles on the independence of the judiciary.
The passage of this new law is of particular concern as three other draft laws introduced in Ukraine’s parliament propose broad measures for lustration – banning certain individuals from public jobs or offices. Following the mass protests and clashes that resulted in the ouster of Viktor Yanukovich from the presidency on February 22, “Euromaidan” activists and other groups called on the interim authorities to urgently begin a “lustration” process to establish a “government of national trust.”
A lustration committee was created in February under the Cabinet of Ministers to prepare draft legislation. The head of the committee told Human Rights Watch on April 7 that three draft laws on lustration have been introduced in parliament. All three drafts are similar and will be combined in a single document to be used as a basis for a future lustration bill, he said.
“Legislative proposalsto ban certain people from public officeare currently overly broadand vague,” Williamson said.“Any such exclusion is an exception to a fundamental political and democratic right of equal participation, needsto be very carefully and narrowly justified,and should not be used to discriminate against anyone.”
The proposed laws would ban large categories of people from a wide range of public offices and jobs and further threaten political freedoms. The current proposals cover a very wide range of positions and an equally wide range of grounds for which candidates would be screened. The amount of time a person could be excluded from public service – up to 20 years – is also far too long.
One of the draft laws, introduced by the political party Svoboda, focuses mostly on the conduct of police, judges, and politicians during the Yanukovich presidency. People in 34 categories of public office under the previous administration could be dismissed and banned for 20 years from occupying any of the 35 listed public service positions, depending on the outcome of a “lustration” commission review.
The people who would have to be screened by a lustration commission before they could hold the 35 public office posts include virtually any public official who held “positions of authority” during the Yanukovich presidency, including directors and deputy directors of virtually all government agencies, both national and regional. It would also include military personnel, tax service employees, judges, attorneys, auditors, experts, university professors, executives of media outlets, and the like.
All three drafts are overly broad and vague and may set the stage for unlawful mass arbitrary political exclusion, Human Rights Watch said. While the effort to exclude abusive and corrupt officials from playing a role in Ukraine’s future is understandable, the means to achieve this goal need to be based on full respect for individual rights and international legal standards that guarantee political participation and nondiscrimination. The current draft laws fail that test and should be withdrawn, the organization said.
In pursuing lustration, parliament should ensure full respect for the right to participate in public life without discrimination, as protected by international human rights law. Parliament should halt its current approach and adopt a more proportionate, human rights-compliant stance, submitting any law on lustration to extensive consultation with independent groups and review by bodies such as the Venice Commission.
In determining eligibility to hold positions within the administration, any lustration measure adopted by the parliament of Ukraine should ensure that:
- Judgments on eligibility are based on the individual qualifications of applicants for employment or promotion or those seeking to maintain their positions and that exclusion from public office can never be discriminatory, directly or indirectly, on any grounds on which discrimination is prohibited under international law, including on grounds of religion, language, or ethnicity;
- Judgments on eligibility are not based solely on past or present associations. In the case of affiliations with entities or organs considered to be acting or to have acted in a criminal or corrupt manner, the law should require clear and convincing evidence that the individual knowingly and actively furthered or is furthering those practices of the entity;
- The burden of proving that the individual knowingly and actively furthered or is furthering the criminal or corrupt aims or practices of an association is borne by the state;
- Anyone facing such charges has an opportunity to know the evidence against them, to obtain a fair hearing on the charges before an impartial tribunal, and the right to appeal to a higher body.
“People in Ukraine have a right to expect conduct of the highest standards from their public officials and to reject political abuse of office,” Williamson said. “However, the proposals under consideration to exclude people from government service, which are arbitrary and overly broad and fail to respect human rights principles, can only make things worse.”
