The ECHR judgment of October 17, 2019 in the case of Polyakh and Others v. Ukraine (application No. 58812/15).
In 2015, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Ukraine.
In the case, an application was successfully examined regarding the dismissal of applicants from the state civil service, the prohibition against them to hold positions in the public civil service, the inclusion of the names of applicants in a publicly accessible lustration list, and the lack of an effective remedy. The case has violated the requirements of paragraph 1 of Article 6, Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
After the change of power that followed Euromaidan in early 2014, the Law "On the Purification of Power" (also known as the Law on Lustration) was adopted, which concerned officials and state civil servants working either under V.F. Yanukovych (2010 - 2012), or under the communist regime (until 1991).
The applicants held positions in the public service for a long time. In October 2014, on the basis of the Law on the Cleansing of the Government, they were all fired from their jobs and banned from holding public service positions for 10 years, and the applicants' names were included in the publicly accessible lustration list.
The applicants filed complaints with the administrative courts, which referred the constitutionality of the lustration law to the Constitutional Court of Ukraine, where it is still pending.
QUESTIONS OF LAW
Regarding compliance with article 8 of the Convention. (1) Admissibility. (a) Applicability. Although the reasons for applying the Law “On the Purification of Power” to applicants were not related to the applicants ’private life, the totality of the measures applied had very serious consequences for them (see the Denisov v. Ukraine judgment of the Grand Chamber of the European Court) September 25, 2018, complaint N 76639/11 (Precedents of the European Court of Human Rights. Special edition. 2018. N 11)) regarding their ability to establish and develop relations with other persons, as well as for their social and professional reputation, because:
(i) the applicants immediately lost their earnings;
(ii) they have been prohibited from holding positions in any public civil service to which they have devoted many years;
(iii) although it was very likely that such a measure would leave a social and professional imprint on the applicants, taking into account the goals set forth in the Law “On Cleansing the Government,” the fact that the measures in question were applied to the applicants almost immediately became known to the public.
Article 8 of the Convention is applicable to the applicants' case (adopted unanimously).
(b) The first three applicants: the exhaustion of domestic remedies and the observance of the six-month deadline for filing a complaint with the Court. Although complaints to administrative courts in conjunction with proceedings before the Constitutional Court initiated by administrative courts were, in principle, an effective remedy, in practice these procedures lost their effectiveness in relation to the applicants ’information due to the excessive delay in the proceedings.
At the same time, since the Constitutional Court had not been inactive during the period under review, the applicants and the public at large were likely to believe that a court decision could be made at any time. Moreover, the European Court as a sole judge previously refused to accept similar complaints.
Consequently, it cannot be assumed that the applicants knew or should have known that the remedy in question was ineffective, which would have meant a six-month deadline.
The preliminary objection of the Ukrainian authorities is to be rejected (adopted unanimously).
(c) The fourth and fifth applicants: a six-month rule for filing a complaint with the Court. Although the applicants' claims were mainly based on arguments related to the unconstitutionality of the Law “On the Purification of Power”, an appeal to the Constitutional Court was not the only legal remedy in this regard. In fact (i) the administrative courts of Ukraine could interpret the Law “On the Purification of Power” in a manner that would be consistent with the understanding of the applicants of the Constitution, (ii) the same arguments related to the Constitution could be used, and could be referred to as arguments related to the Convention.
Consequently, complaints to courts of general jurisdiction were in principle not an effective remedy that should have been exhausted. Accordingly, in the present case, the applicants filed their complaints within six months from the date of the final decisions of the Ukrainian courts.
The preliminary objection of the Ukrainian authorities is to be rejected (adopted unanimously).
(2) Merits. Although the principles developed in cases relating to lustration in post-communist regimes could also be applied in the context of the present case, nevertheless, it is necessary to properly take into account the specifics of the reign of former President V.F. Yanukovych.
(a) The legality of the interference complained of. Foresight / retrospectiveness. The Law "On the Purification of Power" contained a list of posts to which occupying persons were subjected to restrictive measures in accordance with the law under consideration. The impossibility of foreseeing in the occupation of the above posts that such a normative act would be adopted and would entail the application of restrictive measures did not question the legality of the interference: the lack of retrospectiveness as such is prohibited by paragraph 1 of Article 7 of the Convention only in relation to criminal offenses and punishments, but provided for by the Law on Cleansing authorities, "did not have a similar character. Thus, the fact that the applicants ’actions were lawful at the relevant time was an element that should be taken into account when assessing the need for intervention.
(b) The pursued goals. According to the conclusion of the Venice Commission, the Law "On the Purification of Power" pursued two legitimate goals: (i) to protect society from persons who, due to their behavior in the past, could pose a threat to the new democratic regime, and (ii) to clear government structures from persons who participated in large-scale corruption.
However, unlike the Venice Commission, the Court cannot limit itself to an abstracto assessment.
Since the measures complained of were much wider in scope and applied in a context different from those prevailing in Central and Eastern Europe, the Court doubts whether the legitimate aims were pursued in this case:
- the alleged threat posed to the functioning of democratic institutions by the fact that a large number of people were exposed to the measures provided for by the Law on the Purification of Power could not be comparable to the threat in the case of cooperation with totalitarian security services. In contrast to the latter, the applicants in the present case held positions in public authorities based on democratic constitutional principles (at least in principle);
- the dismissal of the applicants, apparently, was based on the collective responsibility of persons who entered the public service while President V.F. Yanukovych, regardless of the type of duties performed by them and their connection with anti-democratic trends and practices that took place during the period related to the circumstances of the case.
The prevailing practice is that lustration cannot be used for punishment, retribution or revenge. A similar approach applies to appealed measures established by the Law on the Purification of Power.
The alleged goals of restoring confidence in state institutions and protecting democratic governance could probably be achieved by taking less stringent measures (for example, where possible, based on an individual assessment, dismissal of applicants from their posts and their transfer to less significant posts).
The far-reaching nature of the measures applied to the applicants, together with the extremely accusatory language used in the Law “On the Purification of Power” to describe the objectives of this law, increased the likelihood that some of these measures could be justified, at least in part, by revenge in relation to to persons associated with previous authorities. If this were proven, instead of the goal of protecting a democratic government, the measures envisaged by the Law "On the Purification of Power" could be considered as undermining the work of this government itself, contributing to the politicization of the civil service, a problem that this law was called upon to combat.
In addition, information on the application to the applicants of the provisions of the Law “On the Purification of Power” was published immediately.
(c) The need for action to be taken in a democratic society. (i) The first three applicants. The period of the presidency of V.F. Yanukovych in Ukraine was characterized by a number of negative changes regarding democracy, the rule of law and human rights, and his rule was considered undemocratic and was associated with large-scale corruption. A number of international observers in their comments also pointed to these problems.
Thus, measures to change and reform the state civil service, including measures against state civil servants personally associated with these negative changes, in principle, were justified. Although the authorities should be given the margin of appreciation in this regard, in this case they were violated for the following reasons.
You can see the lack of consistency between the stated goals of the Law "On the Purification of Power", formulated with reference to the "presumption of innocence" and "individual responsibility", and the principles that should accompany the lustration process, with the rules (norms), actually set out in the said law . The legislative framework did not seem narrowly worded enough to relate to the alleged “urgent social need”. Given that the President of Ukraine, who signed the Law "On the Purification of Power," he himself worked in the government of V.F. for nine months. Yanukovych as a minister, it is difficult to understand how the goal of restoring the people's faith in state power could be achieved by “lustration” of civil servants who held much lower positions.
Moreover, there was no convincing explanation for why the one-year reign of President V.F. Yanukovych served as a key criterion for applying the measures provided for by the Law "On the purification of power." In addition, the period from 1991 to 2010 was excluded from the scope of this law, although, according to the Ukrainian authorities, the Law "On the purification of power" was adopted in response to all the negative actions of the post-communist regime.
The contested measures were not applied conditionally or temporarily, but for 10 years, which refutes the argument that the emergency situation in the Donetsk and Lugansk regions prevented the Ukrainian authorities from individualizing the measures in question. Even assuming that certain personnel reshuffles were urgently needed, there was no indication that the situation would remain so unstable for the relevant period that it would interfere with a detailed review of the situation of each official and, based on such a review, would interfere to take primary urgent action at a later stage.
Since the measures envisaged by the Law “On Cleansing the Government” applied to the applicants were extremely restrictive and very vaguely formulated, it was necessary to provide extremely convincing arguments in order to prove that these measures could be applied without an individual assessment of the personal behavior of specific individuals, by simply assumptions that those holding a position have sufficiently demonstrated that they were not loyal to the democratic principles of the state or that they were involved in orruptsii.
However, it has never been argued that the applicants were involved in any particular actions that would undermine the democratic foundations, the rule of law, national security, defense or human rights. The applicants were fired only because they held relatively high positions in the civil service under President V.F. Yanukovych. The subsequent allegations of misconduct on the part of the third applicant did not alter this fact. From the Court’s point of view, civil servants building a career should not be subjected to such cruel restrictive measures only on the grounds that they continued to hold office after the election of a new head of state.
Moreover, there was no evidence that the applicants were “assigned” to the civil service and that during the reign of V.F. Yanukovych their career would have developed somehow particularly successfully. None of the applicants appeared to have participated in any illegal actions of the V.F. Yanukovych. Although the relevant internal audit was conducted with respect to the third applicant, its results were formulated in very vague terms and it was not reviewed by an independent body. In any case, this check was carried out after the dismissal of the third applicant and therefore had nothing to do with his dismissal.
Information about the dismissal of the applicants became publicly available before they could apply for a review of the decision. Even ex post facto the remedy available to the applicants acted with a considerable delay (at the moment, the proceedings have already been going on for almost half of the ten-year period for the applicants to be removed from service).
(ii) The fourth applicant (late completion of the declaration). The fourth applicant was subjected to the same measures as he filed a lustration declaration four days later. However, the outcome for him would probably be the same (since he held his post from 2010 to 2014). In this regard, the above considerations also apply to him. At present, even assuming that there were no other grounds for applying the measures under consideration other than a four-day delay with the submission of a declaration, these measures seemed disproportionate to the minor nature of the applicant's mistake.
Firstly, the applicant’s situation was typical: he was ill when the deadline for submitting the declaration had expired, and he filed it the day after discharge from the hospital. It was not claimed that this could cause any problems in the context of the entire verification process.
Secondly, the essence of the declaration in question was the statement of the official that the measures described in the Law "On the Purification of Power" were either applied or not. The only basis for applying the Law “On the Purification of Power” to the fourth applicant was the applicant’s work for the position he held from 2010 to 2014, which was well known to the employer who submitted the declaration. Consequently, the obligation to file a declaration in the present case was not aimed at revealing any potentially hidden facts, such as secret conspiracies with the security services of the former totalitarian regimes.
(iii) Fifth applicant (until 1991). The “lustration” measures complained of were implemented and applied almost 23 years after Ukraine switched from a totalitarian communist regime to democracy in 1991. In the absence of any individual offenses, the application of these serious restrictive measures after such a long period of inaction required very serious justifications that were not provided.
Indeed, the applicant was a local agricultural official, and there was no evidence that his activities in the Communist Party would be associated with human rights abuses or special anti-democratic actions so that he could constitute a threat to the newly created democratic regime. Accordingly, in the present case, the disproportionality of the lustration measure was especially clearly observed.
There was a violation of Article 8 of the Convention in respect of all applicants (accepted unanimously).
In application of Article 41 of the Convention. The Court awarded each of the applicants EUR 5,000 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected, given that the relevant procedures could be resumed.
The Court also unanimously held that in the present case there had been a violation of Article 6 § 1 of the Convention (civil law, criminal law not applicable) in respect of the first three applicants in connection with the length of the proceedings.