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The Venice Commission comments on lustration

December 14, 2014

On 5th October an entry was published raising doubts over the “Lustration Law” passed by the then parliament and signed into law – not without comment on the law’s weaknesses – by President Poroshenko.

Within it stated “Amendments will surely follow once he Constitutional Court and Venice Commission recommendations are forthcoming, hopefully transforming the “OK” into “good” legislation – but will any amendments be made in a timely way? Lustration will surely begin very shortly after the law is signed, and certainly almost immediately after a new RADA takes up its mandate.

As the first branch of power for lustration necessarily need be the judiciary, how wise is it to subject those learned (and corrupt) individuals to a law that is “OK”, will probably be amended after they have been subjected to the original text, and therefore open a can of “appeal” worms?

The issue with “OK” legislation for a subject as serious as lustration, is that ultimately European Court of Human Rights appeals may very well result – with rulings granting compensation and strong suggestions of reappointment to follow, thus inflicting Ukraine to needless costs and possibly reinfection a cleansed (or at least cleaner) system with the possible reinstatement of the corrupt it would have already once removed.”

Time, and lustration does not stand still.  The judiciary have already raised issues and sent them to the Constitution Court as anticipated, as this entry of 20th November shows.

“Indeed, as foreseen, subjecting those learned (and corrupt) individuals to a law that was clearly never more than OK, and far from being good, is subject to legal challenge from th learned (and corrupt) judiciary within their own corrupted court system. 27 of 43 Supreme Court Judges have voted to send the Lustration Law to the Constitutional Court. Those 27 voting in favour of challenging the Lustration Law (informally) headed by the Head of the Supreme Court, Judge Romaniuk – whom perhaps would struggle to justify his wealth if ever subjected to the Lustration Law, as would many of his colleagues.

Under challenge are Part 1 – Clause 6. Part 2 – Clause 2. Part 2 – paragraph 13. Part 3 and Article 3. Thus whilst not striking down the entire Lustration Law, it would certainly seem to hollow it out somewhat.

That (corrupt) judiciary will use the corrupt court system to have a thoroughly discredited Constitutional Court hear an appeal from the thoroughly discredited Supreme Court to hollow out a poorly crafted Lustration Law aimed at removing many of their number from public office is a trajicomedy at best, and a case of playing with matches amongst societal powder kegs at worst. Either way, a political disaster potentially awaits.”

So far, all so utterly predictable.  Internal matters having taken the anticipated course with such an ill-crafted law.

So what of the Venice Commission and European Court of Human Rights mentioned in the very first link?  They are the venues for logical progression when tackling this legislative debacle.

The ECfHR is not exactly renowned for its speed.  Any appeals to the court will take years to be heard – as and when they are submitted.  But expected they will be, and many of those that have already been subjected to lustration will certainly have a case.

The Venice Commission has now commented however.  It is suggesting what amounts to a complete revamping of the law and mechanisms surrounding it – unsurprisingly.

Firstly The Venice Commission recommends that body in charge of lustration should be a specially established independent commission – not the Justice Ministry.  It stresses that people’s right to a fair trial -including the right to a lawyer, equal rights of the parties, and the right to be heard in court – should be observed,  and that administrative decisions on lustration should be postponed during the trial until the final sentence is handed out.

Currently the law on lustration fails to contain some provisions dealing with such guarantees of rights.

It also suggests the provisions of the law containing the list of positions subject to lustration should be revised, and that lustration should only apply to those positions that could pose considerable danger to human rights and democracy, and that guilt should be proven in each specific case – it cannot be considered as proven based on an official’s affiliation with a specific category of public establishment alone.

All of which, again, was entirely predictable – so much so it was predicted at the time.

Legislate in haste – repent, repeal and pay reparations at leisure!

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