Back to the Venice Commission

March 15, 2015

Yesterday it became clear that the Prosecutor General’s Office will soon be requesting the Rada to vote in favour of lifting several of their colleagues Constitutional immunity to facilitate preliminary investigation to progress into prosecution and judicial due process.

As stated in a post last week relating to the investigation of 4 judges, despite a Constitutional majority in the Rada voting to remove the immunity of MPs and judges, it currently remains in effect.  The matter has now been sent to the Constitutional Court, awaiting its nod of approval.

In the meantime, whilst progress relating to the removal of immunity for MPs and judges has been made, to expect any speedy adoption whilst there remains no clear legal path for presidential impeachment would be somewhat hopeful.  When immunity is finally revoked, it will be across the entirety of executive power – probably simultaneously.  It would be foolish to think that parliament and judiciary will surrender their immunity, whilst leaving the president untouchable/unimpeachable.

In the meantime, whilst the Constitution Court ponders the legislation placed before it, on 20th/21st March, the ever-wise Venice Commission are to engage in an “exchange of views” relating to the currently pending legislation, as well as the (poorly written) lustration law, with Ukraine.

It is already known the Venice Commission is not particularly impressed by the lustration law.  In short there are several major areas of concern for the Commission.  Firstly The Venice Commission would prefer that the body in charge of lustration be a specially established independent commission – not the Justice Ministry.

There are issues with a persons right to a fair trial and the mechanics of due process, including the right to a lawyer, equal rights of the parties, and the right to be heard in court – notwithstanding that administrative decisions on lustration should be postponed during the trial until the final sentence is handed out.

Further, the Commission has reservations relating to the scope of the law’s application, suggesting the provisions of the law specifying 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.  Thus guilt cannot be considered as proven based on an official’s affiliation with a specific category of public establishment alone.

The Venice Commission, together with the Directorate of Human Rights, will adopt a joint opinion on both the recent law removing judicial and MPs immunity and last year’s lustration law.

Undoubtedly whatever the Venice Commission has to say will be duly noted by the Constitutional Court of Ukraine, for not only is the recently passed law removing immunity pending the Constitutional Court nod, but there is also a legal challenge to the lustration law, with Part 1, Clause 6 – Part 2, Clause 2 – Part 2, paragraph 13 – Part 3 and Article 3 all pending the Court’s view as to its Constitutionality.  (Thus whilst not striking down the entire lustration law, it would certainly seem to hollow it out somewhat.)

The future of some key populist legislation may be about to receive some serious (European inspired, integration aligning) revision.

If so, the questions are whether those that have already been subjected to lustration will be forming a queue at the European Court of Human Rights, whether the Ukrainian authorities will simply reemploy them and carry out the procedure once again in line with newly European approximated legislation, or whether there will be conversations behind the curtain between the lustrated and the lustrators whereby agreements will be reached that no appeals for wrongful dismissal/reinstatement are forthcoming, in return for no further investigations with the prospect of immunity otherwise heading for the Ukrainian history books.

It will be interesting to see both the adopted opinion and Ukrainian reaction to it.


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