The INSIDER has published the series of articles by OSF President Lesya Shevchenko on the draft law 4359 "On Purification of Government".
Part 2: "In Search of Ukrainian Lustration Model”
Part 3: “Not by Lustration Alone”
The draft law "On Purification of Government" got on the parliamentary agenda for September 16th to be considered for the second reading. However, it resemblesa tool for fast and relatively cheap takeoverofYanukovych’s ‘power pyramid’ by the new political players.
First of all, such‘purification’ potentially causes a threat of filling the political vacuum with the members of the ‘new’ political team. This is extremely dangerous for the judiciary, which is the key sphere in the fight against corruption. At the same time, thecorrupt schemeswill be preserved(because they are well-coordinated and profitable) and run by the other artists and final beneficiaries.
Secondly, Ukraine has about half a million of civil servants. Along with family members they compose potential two million votes in parliamentary elections. The ‘proponents’of lustration in this format will lose these votes, while the populist leaders criticizing the ’purification’will get a nice ‘bonus’. Thus we have a potential area for speculations.
Thirdly, the draft law provides for the dismissal of persons who hadcommitted criminal offenses (including during the revolutionary events), or extortion.Under this definition any unqualified official who had paid the bribe to get his/her post, or ‘lobbied’ his/her cousin, would not get lustrated. The direct and indirect benefits of the officials, SBU and law enforcement agencies are often a major stimulus for such employment. In other words, we end up with honest (to a point), but unqualified officials. In reality these are the majority among the lower-level civil servants.
Fourth.The law will not touch upon the persons who were involved in the ‘schemes’for more than three years. The declaration of income and expenses has to be submitted for the mentioned three years period only. If the initial accumulation of the illegal ‘capital’ had happened before, it is enough to declare the income from previous investments. The corruption revenues and expenditures are quite easy to hide among the declared income. It is therefore extremely important to establish a mechanism of weaning of civil servants from managing own equity (a suggestion for the future bill).
The foreign (Central European) experience of lustration at first sight is tangent to the Ukrainian realities. The ‘purification’ laws of Poland, Czechoslovakia, Hungary and the Baltic countries were developed and implemented for specific historical circumstances of transit from totalitarianism to democracy. They were intended to ‘de-sovieticize’ the society and thus contained the clear criteria, such as membership in the Communist Party or cooperation with the secret services. However, the lustration in Central Europe serves as a source for a deeper analysis today.In particular, the mentioned experience reveals several characteristics (both positive and negative) that should be kept in mind when analyzing the current Ukrainian lustration initiatives.
First. All officials accused of ‘undesirable’ for young democracies relations, had the opportunity to challenge such allegations and publicly defend themselves. The final decision on the official was taken by the lustration court. Thus, the whole process was fair in terms of human rights.
Second.The desire for ‘morality’ has often masked political opponents’ attempt to replace the ‘predecessors’with own protégés in the system of power networks, having to invest little time and resources in their own social capital.
Third.The number of lustratedofficials in the Czech Republic for 10 years was 3% of the total 345 thousand issuedlustration certificates needed to fill the position. The indicator was quite small compared with the level of media resonance, the endless debates and public attention riveted to almost every lustration case. It seems that political dividends in this case had outweighed the immediate management benefits.
Fourth.One may question rather inert application of lustration laws in practice. The criminal proceedings on the facts of involvement in intelligence, and hence the potential human rights violations by the collaborators of the former regime were usually not open.
Fifth. The Czech Republic had also a widespread practice of ‘informal appointment’. The person who could not take a position (because he/she did not meet the lustration criteria) was assigned temporarily (for a period, sometimes a long one, to search for the best candidate).
It is also worth noting that the countries of Central and Eastern Europe did not stop with the laws on lustration. In the subsequent years they focused on the laws to combat corruption, eliminate the conflict of interest, onaccess to information, the transparent funding of political parties, public procurement and so on.