Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.39 N° 70
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Vol. 39, Nº 70 (2021), 757-767
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 21/07/2021 Aceptado el 12/09/2021
Judicial reforms in Ukraine: polishing
procedures and their systemic role
DOI: https://doi.org/10.46398/cuestpol.3970.45
Oksana Kaplina *
Maxim Zhushman **
Iryna Cherevatenko ***
Abstract
Using a documentary methodology close to the dialectical
method, the objective of the article is to analyze the judicial
reforms in Ukraine. Citizen belief in peace, justice and strong
institutions is a challenge not only for Eastern Europe, where
trust in state bodies has always been low. Meanwhile, the ongoing
reforms of the judiciary aim to achieve a signicant result using
specic methods such as: the purging of judges. After the so-
called “revolution of dignity” forceful discussions began on the
purication process in Ukraine. For the rst time, this question
was raised in the early 90s of the last century. Unfortunately, the relevant
legislative projects did not even reach the congress of Ukraine. It is concluded
that Ukraine is currently experiencing its third attempt to initiate a judicial
purge process. Unlike the rst two, the third is apparently more productive.
This is since a special law was passed, and the “government purication”
procedure was started. nally, questions such as what is lustration and in
what types does it manifest itself are discussed? How is this phenomenon
related to the processes of systemic transformation?
Keywords: judicial power; illustration of judges; judicial independence;
reforms of the judiciary; citizen ght against corruption.
* Dr. Sc. (Law), Prof.,Head of Departmentof Criminal Procedure, YaroslavMudryi National Law
University, Ukraine. ORCID ID: https://orcid.org/0000-0002-3654-673X. Email: kaplina78@meta.
ua
** PhD (Law), Associate Professor of Civil Procedure Department, YaroslavMudryi National Law
University, Kharkiv, Ukraine. ORCID ID: https://orcid.org/0000-0003-1235-6189. Email:
zhushman_m@ukr.net
*** PhD (Law), Associate Professor of Civil Procedure Department, YaroslavMudryi National Law
University, Kharkiv, Ukraine. ORCID ID: https://orcid.org/0000-0003-2937-1529. Email:
cherevatenko_iryna@meta.ua
758
Oksana Kaplina, Maxim Zhushman y Iryna Cherevatenko
Judicial reforms in Ukraine: polishing procedures and their systemic role
Reformas judiciales en Ucrania: procedimientos de
lustración y su papel sistémico
Resumen
Mediante una metodología documental próxima al método dialéctico,
el objetivo del artículo es analizar las reformas judiciales en Ucrania. La
creencia ciudadana sobre la paz, la justicia y las instituciones sólidas es un
desafío no solo para Europa del Este, donde la conanza en los organismos
estatales siempre fue baja. Mientras tanto, las reformas en curso del poder
judicial tienen como objetivo lograr un resultado signicativo mediante el
uso de métodos especícos como: la depuración de los jueces. Después de la
llamada “revolución de la dignidad” se iniciaron discusiones contundentes
sobre el proceso de depuración en Ucrania. Por primera vez, esta cuestión se
planteó a principios de los años 90 del siglo pasado. Desafortunadamente,
los proyectos legislativos relevantes ni siquiera llegaron al congreso de
Ucrania. Se concluye que Ucrania vive actualmente su tercer intento de
iniciar un proceso de depuración judicial. A diferencia de los dos primeros,
el tercero es aparentemente más productivo. Esto se debe al hecho de que
se aprobó una ley especial y se inició el procedimiento de “puricación del
gobierno”. nalmente se discuten preguntas como ¿qué es la lustración y en
qué tipos se maniesta? ¿cómo se relaciona este fenómeno con los procesos
de transformación sistémica?
Palabras clave: poder judicial; lustración de jueces; independencia
judicial; reformas del poder judicial; lucha ciudadana
contra la corrupción.
Introduction
The issue of judges’ lustration has become cluttered with myths and
prejudices regarding lustration generally, in the context of the Ukrainian
events of recent years. Thus, the ‘vagueness’ and uncertainty of the concept,
a certain mythologization and even demonization of the procedure and
consequences of lustration in Ukraine determine the relevance of the
current investigation.
Considering the aforementioned reasons, the legal framework for lustration
had been drafted and adopted by Ukrainian parliament in 2014, when the Law
‘On Restoring Trust into Judicial Power in Ukraine’ № 1188-VІІ was adopted
on 8 April 2014, launched two tools of the judiciary control. One of the
peculiarities of the Law ‘On Restoring Trust into Judicial Power in Ukraine’
was a distinct delineation of conduct by a judge, regarded as illegal, listed in
article 3. Such judicial rulings, enacted in the time period from November 2013
until February 2014, could become potential objects of screening: Rulings
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CUESTIONES POLÍTICAS
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banning peaceful demonstrations and gatherings; Rulings detaining activists
or nding them guilty based on their political or social activities; Rulings
detaining or accusing guilty of activists of the ‘Euromaidan’ for actions,
committed in the course of the protests;Rulings imputing administrative
sanctions upon activists of the ‘Euromaidan’ for actions committed in the
course of the protests; Rulings granting permissions on conducting open or
secret investigative actions against activists of the ‘Euromaidan’ on pretrial
stages of criminal proceedings; Rulings related to the election to the Verkhovna
Rada of the seventh convocation that had been allegedly considered vague or
unjust; Rulings upon revision of which the UCtHR had found violations of
human rights, reportedly admitted by the judge.
Due to those reasons the overall results of vetting, started by the Commission,
can be described as a measure, meeting the urging social expectations, but still
needing its nalization by the competent judicial authorities.
The law ‘On Purication of Government’ № 1682-VII was adopted on
16 October 2014
and, according to international expert Agnieszka Piasecka,
provided four major instruments of lustration of state servants. First, all the
public ocials, who had maintained signicant posts in state agencies during
the rule of Yanukovych government, should be dismissed from their oces
and similar posts for a term from 5 up to 10 years. The second instrument
was the assessment of all the revenues and nancial obligations of all public
ocials (Kondratova and Korotenko, 2020). The third point of purication
was the disclosure and dismissal from public oces of former KGB agents and
former Communist Party of the Ukrainian SSR leading functionaries. Finally,
the judges, holding posts in judicial system, should undergo deep integrity
checks (Piasecka, 2015).
1. Notion of Lustration
One of the widespread term for this process is vetting, dened as ‘the
process of performing a background check on someone before oering
the employment, conferring an award, or doing factchecking prior to
making any decision.’ As U.S. Department of State denes those two terms,
‘Lustration is a policy put in place by post-conict or post-authoritarian
governments to remove from public institutions personnel, who have
been implicated in activities that call into questions their integrity and
professionalism, such as human rights violations or abuses, violations
of international humanitarian law, or related crimes, as a way to build
condence in the public sector’ while ‘Vetting is the process by which a
lustration policy is put into eect.’
The modern interpretation of this concept is as follows: ‘lustration (from
the Latin “Lustratio” – purication through sacrices) can be understood
760
Oksana Kaplina, Maxim Zhushman y Iryna Cherevatenko
Judicial reforms in Ukraine: polishing procedures and their systemic role
as the process of purication the authorities from the old personnel, the
prohibition for the functionaries of the previous government from holding
posts in the state apparatus, from election to representative bodies, from
serving as judges, and sometimes even from exercising the profession of a
teacher, etc’ (Kostiuchenko, 2019)
Such a delineation seems very appropriate, as in most academic sources
both terms are used as synonyms.
According to the Parliamentary Assembly of the Council of Europe
No. 1096 (1996) ‘On Measures to Dismantle Communist Totalitarian Systems’
the independence of the lustration commission should be safeguarded,
while European standards of judicial independence contain a perception,
according to which ‘in respect of every decision aecting the selection,
recruitment, appointment, career progress or termination of the oce of a
judge, the statute envisages the intervention of an authority independent of
the executive and legislative powers, within which at least one half of those
who sit, are judges elected by their peers following methods guaranteeing the
widest representation of the judiciary’ (para. 1.3 of the European charter on
the statute for judges).
The Venice Commission in the aforementioned Opinion expressed
a concern that the Ministry of Justice and the Temporary Specialized
Commission of Vetting of Judges of the General Jurisdiction Courts are not
providing the necessary guarantees of procedural independence (para. 87-95).
In this opinion, the High Council of Justice (2017) was unlighetened as a body
who ‘may not be bound by this proposal and should assess itself the substance
of each case’ (para. 95).
In our view, some loopholes of the vetting procedures can be found;
however, the Commission was comprised of the majority of judges and nal
decisions in all cases concerning judges are undertaken by the High Council
of Justice, which holds all relevant instruments when disciplining judges. This
can denitely be concluded from provisions of the Law.
2. The Procedural safeguards for lustrated judges
The controversial issue of vetting the judiciary covers procedural
safeguards for lustrated judges. In the case Rasmussen v. Poland the Court
‘reiterated that, if a State adopts lustration measures, it must ensure that
the persons aected thereby enjoy all the procedural guarantees of the
Convention’ (para. 50). As Venice Commission noted in its Opinion on
lustration measures in Albania on the question of the constitutional and legal
guarantees of judges and prosecutors, these guarantees consisting reasons
for termination of their mandate, and in procedures for these terminations,
761
CUESTIONES POLÍTICAS
Vol. 39 Nº 70 (2021): 757-767
which should be the constituent elements of the state’s constitutional status
replacing the procedures with less protective ones.
From this angle some aspects of lustration of judges in Ukraine have
been challenged by experts (Zaharov, 2014). It is necessary to point out
that European authors have put forward similar doubts on the legitimacy of
lustration procedures in the Czech Republic, Hungary, and Poland, claiming
that lustration in those countries: (a) condemns the acts / facts that have
taken place in the past; (b) provide for the establishment of collective guilt;
(c) are discriminating concerning a certain category of persons (Choi and
David, 2012).
It should be noted that the Venice Commission stands for implementing
basic safeguards of the due process of law in the lustration procedure,
emphasizing:
The following four key-criteria summarize the essence of the
standards pertaining to lustration procedures: (a) guilt must be proven
in each individual case; (b) the right of defense, the presumption of
innocence and the right to appeal to a court must be guaranteed; (c) the
dierent functions and aims on the one hand of lustration, namely the
protection of the newly emerged democracy, and on the other hand of
criminal law, i.e. punishing people proven guilty, have to be observed;
(d) lustration has to meet strict limits of time in both the period of its
enforcement and the period to be screened (European Commission For
Democracy Through Law, 2014: 14).
European standards of due disciplinary procedures are applicable to
existing Ukrainian regulations, in particular the rights of a judge: to be promptly
informed of the complaints led against him/her; to have knowledge of all
the evidence, collected against him/her; to be heard (orally and in writing)
by the disciplinary authority at all levels of the disciplinary proceedings and
to be present there; to legal assistance; to appeal an unfavorable disciplinary
decision (Federco, 2012).
In spite of the fact, that preliminary proceedings in the Temporary
Specialized Commission of Vetting of Judges of General Jurisdiction Courts
or Ministry of Justice do not maintain the whole list of procedural guarantees
of the due disciplinary proceedings, all of the decisions of those agencies on
lustration of judges, are subject to additional obligatory revision by the High
Council of Justice, as this body is exclusively entitled by the Constitution
to rendering decisions on dismissing judges in disciplinary procedures
(Borkowski and Sovgyria, 2019).
Ukrainian legislation envisages signicant safeguards of the rights of a
judge to a fair trial in the disciplinary proceedings which verify the imposition
of all the lustration sanctions by the High Council of Justice (Izarova, 2018).
Those guarantees are provided by articles 48 and 49 of the Law ‘On High
Council of Judges’ and include:
762
Oksana Kaplina, Maxim Zhushman y Iryna Cherevatenko
Judicial reforms in Ukraine: polishing procedures and their systemic role
• the publicity of disciplinary proceedings, accompanied by minor
exclusions.
• the obligation of the ocials of the High Council of Justice to
research all the relevant evidence.
• the right of a judge to make up detailed explanations in the course
of the investigation, present his/her arguments personally during
the hearing in the High Council of Justice and provide all the
appropriate evidence to defend himself/herself.
• the right of a judge to be informed about the hearings of his/her case
in the High Council of Justice and to review the evidence, collected
against him/her.
• the right of a judge to have a representative in the disciplinary
proceedings.
• the right to appeal the decision of the High Council of Judges in the
Supreme Court of Ukraine.
Finalizing the issue of procedural guarantees for judges, we can refer
to the recent events in Poland, where several judges of the Supreme Court
were forced to resign on adoption of a special law, that had come in force
on 3 July 2018. The new law changed the initial age of resignation of judges
(from 70 to 65 years) and allowed the President to arbitrarily remove or
reassign part of judges of the Supreme Court. To remain in positions, the
judges were obliged to le a petition to the President and provide a valid
health certicate.
The term of a judge’s position could have been extended by 3 years,
while the criteria for the President’s decision was quite vague; a mechanism
to appeal this decision wasn`t envisaged by the aforementioned legislation.
In our opinion, this was an example of a direct discrimination of judges by
their age, prohibited by the UN Basic Principles on the Independence of the
Judiciary, as well as a severe breach of basic safeguards of judicial tenure,
outlawed by the same document.
In an EU-country, an attempt to dismiss judges of the Supreme Court
regardless of basic guarantees of the due process of law, developed by the
European Court of Human Rights, cannot be tolerated. Therefore, several
institutions of the European Union have immediately, upon adoption of the
relevant law in Poland, come up with ocial statements, criticizing those
initiatives and calling on the Polish authorities to amend the Law (BBC
NEWS, 2018).
In October 2018, the European Court of Justice suspend that the
provisions of national legislation concerning the lowering of the retirement
age of the Supreme Court Judges. On 19 November 2019, the Court decided
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CUESTIONES POLÍTICAS
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that there are doubts concerning the independence of a new Polish judicial
chamber that monitors and potentially punishes other judges (AP NEWS,
2019). However, the determination of the whether the new Disciplinary
Chamber is independent of the inuence from the nation’s’ legislative and
executive powers was left to highest Polish court. It could be thus concluded
that the main EU Court stood up for standards of judicial independence in
Poland, granting to the national sovereignty key issues of organization of
judiciary at the local level.
In the case Rasmussen v. Poland the applicant lost the entitlement to a
special retirement pension due to her status as a ‘retired judge’ according
to the Lustration Act 1997’ (para. 72), but the Court decided, that this loss
is a result of a false lustration declaration submission, which was not count
by an interference with the property rights of the applicant under Article 1
of Protocol No. 1. (76).
3. Is lustration a type of responsibility?
National traditions of legal theory (Abramovych, 2015) as well as the
Constitutional Court of Ukraine, presume that any liability measure cannot
be established retroactively. According to the ruling of the Constitutional
Court of Ukraine, delivered on 13 May 1997, ‘laws are applicable only to
those relations that arose after the law or other normative legal act had come
into force. The consolidation of this principle at the constitutional level
serves as a guarantee of the stability of social relations, including relations
between the state and its citizens, providing citizens with condence that
their current status would not be aggravated by the adoption of a new law
or other normative legal act (that would alter the current state – authors).’
The same refers to judges, if we consider lustration as a type of
responsibility; when the ‘Euromaidan’ protests took place, judges did not
know that their decisions, delivered in relation to these events, would be
subjected to review. On the other hand, the circumstance of an acute social
conict cannot excuse a judge from ignoring such constitutional values
as the rule of law, fair justice, basic human rights and neglecting his/
her major duty to maintain a balance of public and private interests and
accurately apply procedural codes (Izarova, 2019). Therefore, the lustration
restrictions that were launched upon judges, ‘within the application of all
of the existing disciplinary proceedings and the procedure of dismissing a
judge for breaches of the judicial oath,’, are not contrary to the rule of law
principle ‘as a democratic state is entitled to require civil servants to be
loyal to the constitutional principles on which it is founded.’
For this reason, from the political perspective, lustration provides
for the ‘cleansing’ operations performed by new government from the
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Oksana Kaplina, Maxim Zhushman y Iryna Cherevatenko
Judicial reforms in Ukraine: polishing procedures and their systemic role
regime-connected politicians, who are not allowed to work in government
bodies, conduct court proceedings, be elected to representative bodies of
government, etc. It is not necessarily carried out in a clear legal framework,
since it performs the function of ideological confrontation between the old
and the new governing elites. Therefore, lustration laws do not relate to
the sphere of criminal law, but are aimed at restructuring the bureaucratic
apparatus of the State as well as at dismissing from ocial posts people
who have contributed to the establishment of an undemocratic regime.
However, the legal foundations of lustration are equally important.
According to the second concept of lustration, distinguished by I.A.
Bezklybyy and I.V. Kochkodan, lustration restrictions are inherently
sanctions, an element of the mechanism of a person’s responsibility for
certain actions. It is obvious that the process of lustration encompasses
the mechanisms of various types of responsibility (primarily legal liability),
since sanctions – lustration restrictions – are legal in character (Bezklubyi
and Kochkodan, 2019) This approach, according to legal thinkers, provides
for a number of requirements, the failure to comply with which calls
into question the legitimacy of the lustration measures. Thus, an act for
which sanctions in the form of restrictions are applied to an individual
shall violate the legal rules existing at the time of conduct, since the law
establishing liability shall not be retroactive in eect. In addition, lustration
restrictions must comply with all principles of legal liability, particularly
with the principle of individual liability. We accept the notion that the legal
responsibility is one of the features of lustration measures. However, we do
not consider the principle of legality as a dominating aspect in legal liability,
and the obligation arising from it to comply with the relevant criteria and
requirements, as the shortcoming of the aforesaid approach to lustration
conceptualization.
The German professor S. Karstedt also considers lustration as the
mechanism of an individual’s punishment, having identied two of its
elements or ‘two types of public procedure’: rst is the criminal prosecution
of elite representatives and government ocials, who constituted the
highest leadership in the system of public administration of the previous
regime. Secondly, it is a procedure for mass investigations with regard to
those who worked closely with members of the party or employees of public
entities (for example, police, security services) of middle or lower ranking
positions in the certain bureaucratic hierarchy.
Close attention should be paid to the approach suggested by V. V. Knysh,
according to whom lustration is dened as ‘a modern, special form of
constitutional legal responsibility.’ In the author’s opinion, lustration
(purication of government), in addition to its direct function also has
the nature of a preventive (protective) form of responsibility designed to
prevent the creation of corrupt power in the future (Knysh, 2014)
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CUESTIONES POLÍTICAS
Vol. 39 Nº 70 (2021): 757-767
Conclusions
Grounds of responsibility, provided by the Law ‘On Restoring Trust
into Judicial Power in Ukraine’ № 1188-VII, and the Law ‘On purication
of Government’ No1682-VIІ, were politically aggravated, while the
basic criteria of assessment of judges’ acts was applied on a temporary
basis, referring exclusively to decisions, delivered in the course of the
‘Euromaidan’ protests or during the Presidency of Victor Yanukovych.
Moreover, the juxtaposition of legal acts regulating lustration procedures
reveals a duplication of grounds in this type of sanctions that could possibly
result in double jeopardy of a judge, directly prohibited by the Article of
61 of the Constitution of Ukraine.
4
Such a concept is quite doubtful in
terms of formulating grounds of legal liability of judges, that thesis being
acknowledged by the Venice Commission. In such a case, if a judge is being
charged under two coinciding procedures, sanctions can be cancelled by
national courts or European Court of Human Rights.
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