Information Note on the Court’s case-law 233
Polyakh v. Ukraine – 58812/15, 53217/16, 59099/16 et al.
Judgment 17.10.2019 [Section V]
Exhaustion of domestic remedies
Delays rendering Constitutional Court remedy ineffective in post-Yanukoviych lustration cases but not triggering 6-month time-limit, failing perceptible inactivity: preliminary objections dismissed
Respect for private life
Excessively broad scope and restrictive character of “cleansing” measures affecting civil servants of the Yanukovych regime (2010-2014) and the Communist regime: Article 8 applicable; violation
Facts – Following the change in power after the Euro-Maidan events in early 2014, a Government Cleansing Act (GCA) was adopted concerning officials and civil servants of either the Yanukovych regime (2010-2014) or the former Communist regime (pre-1991).
The applicants had hitherto been career civil servants. In October 2014, on foot of that legislation they were all dismissed and banned from civil service for ten years and had their names entered into the publicly accessible online Lustration Register.
They lodged appeals with the administrative courts, which referred the question of the constitutionality of the lustration law to the Constitutional Court, before whom it has remained pending ever since.
Law – Article 8
(a) Applicability – While the reasons for the application of the GCA to the applicants had had no connection to their private life, the combination of the applied measures had had very serious consequences (see Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Information Note 221) on their capacity to establish and develop relationships with others and their social and professional reputation, in so far as
(i) they had lost all their remuneration with immediate effect;
(ii) they had been excluded from any employment in the civil service, the sphere where they had worked for many years;
(iii) whereas it was very likely to carry social and professional stigma – given the wording of the GCA’s aims –, the application of those measures to them had been made public knowledge with immediate effect.
Conclusion: Article 8 applicable.
(b) First three applicants: exhaustion of domestic remedies and six-month time-limit – While the appeals to the administrative courts, in combination with the proceedings before the Constitutional Court initiated by those courts, had been an effective domestic remedy in principle, those proceedings in practice had lost their effectiveness in respect of the applicants, due to excessive delays.
At the same time, as the Constitutional Court had not remained inactive throughout the relevant period, the applicants and the public at large had been likely to believe that that court’s decision might be forthcoming at any moment. Moreover, the [Strasbourg] Court’s single-judge formations had previously rejected as premature a number of applications in similar cases.
Therefore, it cannot be said that the applicants had been or ought to have been aware that the remedy in question was ineffective, so as to trigger the running of the six-month period.
Conclusion: preliminary objection dismissed.
(c) Fourth and fifth applicants: six-month time-limit – While the applicants’ claims had, for the most part, been based on the arguments relating to the constitutionality of the GCA, an application to the Constitutional Court had not been the only remedy in that respect; indeed: (i) the domestic administrative courts could have interpreted the GCA in a way that would have been compatible with the applicants’ understanding of the Constitution; (ii) the same Constitution-related arguments could have been turned and relied on as Convention-related arguments.
Therefore, the appeals to the ordinary courts did constitute, in principle, an effective remedy to be exhausted. In that process, the applicants had lodged their applications within six months of the final domestic decisions.
Conclusion: preliminary objection dismissed.
While the principles developed in cases concerning post-Communist lustration might also be applied in the novel context of the present case, due account must nonetheless be taken of the specificity of the Yanukovych presidency.
(a) Lawfulness of the impugned interference
Foreseeability/Retrospectivity – The GCA had contained a list of the positions whose holders would be subject to restrictive measures under the Act. The inability to predict that such legislation would be enacted when taking up the posts which triggered the application of restrictive measures to them did not call into doubt the interference’s lawfulness: non-retrospectivity was only prohibited as such under Article 7 § 1 of the Convention with respect to criminal offences and penalties, whereas the measures provided for under the GCA had not been of that nature. That said, the fact that the conduct of the applicants had been legal at the relevant time was a factor that could be taken into account in assessing the necessity of the interference.
(b) Aims pursued
According to the Venice Commission, the GCA had pursued two legitimate aims: (i) protecting society from individuals who, due to their past behaviour, could pose a threat to the newly established democratic regime and (ii) to cleanse the public administration of individuals who had engaged in large-scale corruption.
However, unlike the Venice Commission, the Court cannot confine its role to an in abstracto assessment.
Since the impugned measures were much broader in scope and had been applied in a context different from that which had prevailed in other Central and Eastern European States, the Court had doubts as to whether legitimate aims had been pursued in the present case:
– the alleged threat posed by the wide range of persons subject to the GCA measures to the functioning of the democratic institutions could not be equated to that posed in the cases of collaboration with totalitarian security services. Unlike the latter, the present applicants occupied posts in institutions of a State based on democratic constitutional foundations (at least as a matter of principle);
– their dismissal appeared to have been based on a collective liability of individuals employed by State institutions during President Yanukovych’s time in power, regardless of the specific functions they had performed and their link to the anti-democratic tendencies and developments which had occurred during that period.
It was a well-established principle that lustration may not be used for punishment, retribution or revenge. The same was true of the impugned measures provided by the GCA.
The alleged goals of restoring trust in the public institutions and protecting democratic governance could conceivably have been achieved by less intrusive means (such as, where possible, following an individual assessment, removing the applicants from their positions of authority and transferring them, where possible, to less sensitive positions).
The far-reaching nature of the measures applied to the applicants, combined with the highly charged language used in the GCA to describe the Act’s aims, raised the possibility that some of those measures might have been motivated, at least in part, by vindictiveness towards those associated with the previous governments. If that were shown to be the case, then, far from pursuing the aim of protecting democratic governance, the GCA measures could be seen as undermining that very governance through politicisation of the civil service, a problem the law had supposedly been designed to combat.
In addition, the information about the application of the GCA to the applicants had been published immediately.
(c) Necessity in a democratic society of the impugned measures
(i) The first three applicants – The period of Mr Yanukovych’s rule in Ukraine had been characterised by a number of negative developments concerning respect for democracy, the rule of law and human rights, and his government had been perceived to be undemocratic and engaged in large-scale systemic corruption. A number of international observers had also made comments pointing to such problems.
Measures of change and reform in the civil service, including measures against civil servants personally associated with the said negative developments, were thus, in principle, justified. While the authorities should be afforded a margin of appreciation in that respect, this margin appeared to have been overstepped, for the following reasons.
A lack of coherence could be discerned between the Act’s proclaimed aims (worded with reference to “the presumption of innocence” and “individual liability” among the principles that had been supposed to guide the cleansing process) and the rules that the Act had actually promulgated. The legislative scheme did not appear sufficiently narrowly tailored to address the supposed “pressing social need” pursued. Given that the then President of Ukraine , who had signed the GCA into law, had himself served for nine months as a minister in President’s Yanukovych’s government, it was difficult to see how the goal of restoring public trust in State authorities could be achieved by “cleansing” officials of much lesser importance.
Moreover, no cogent explanation had been given for the one-year period of service during the presidency of V. Yanukovych as the key criterion triggering the application of the GCA measures. Furthermore, the period from 1991 to 2010 had been excluded from the scope of the Act, although, according to the Government, the GCA had been intended as a response to the negative results of the activities of all post-Communist elites.
The impugned measures had not been applied on a provisional or temporary basis, but for ten years; which belied the argument that the state of emergency created by hostilities in the Donetsk and Luhansk regions had prevented the authorities from individualising them to a greater extent. Even assuming that certain personnel changes had been urgent, there was no indication that the situation would have remained so unstable throughout the relevant period that it prevented a detailed review of each individual official’s role and, based on such review, the phasing out of initial urgent measures at a later stage.
Since the GCA measures applied to the applicants had been very restrictive and broad in scope, very convincing reasons were required to show that they could be applied without individual assessment of personal conduct, by mere inference that the applicants’ remaining in office sufficiently demonstrated that they had lacked loyalty to the democratic principles of State organisation or that they had engaged in corruption.
However, it had never been alleged that the applicants had themselves committed any specific acts undermining democratic governance, the rule of law, national security, defence or human rights. They had been dismissed merely for having occupied certain relatively high-ranking positions in the civil service under Mr Yanukovych’s presidency. The subsequent allegations of misconduct on the part of the third applicant did not change that fact. In the eye of the Court, career civil servants could not be subjected to restrictive measures of such severity merely for remaining in their positions in the civil service following the election of a new Head of State.
There was, moreover, no indication that the applicants had been “placed” in the civil service and that their careers had evolved in any unusually positive way under Mr Yanukovych’s rule. None of the applicants appeared to have been involved in any of the alleged abuses of Mr Yanukovych’s government. While an internal finding in that respect had been made as regards the third applicant, it was couched in very vague terms and there had been no independent review of it; in any event, that finding had been made after the third applicant’s dismissal and, therefore, had not been determinative of it.
Information about the applicants’ removal from civil service had been made publicly available before they could obtain a review of such measures. Even the ex post facto remedy available to them had operated with excessive delay (so far, the proceedings had already lasted for almost half of their ten-year exclusion period).
(ii) The fourth applicant (late filing of self-declaration) – The fourth applicant had been subjected to the same measures because he had filed his lustration declaration four days late. However, the outcome for him would likely have been the same anyway (as he had remained in office from 2010 to 2014). To that extent, the above considerations also applied to him. Now, even assuming that there had been no other ground than this four-day delay to apply those measures to him, they appeared disproportionate to the trivial nature of the applicant’s omission.
Firstly, his situation was particular: he had been ill when the time-limit for filing had expired; he had filed the declaration the day after leaving hospital. It had not been argued that this could cause any problem in the context of the overall screening process.
Secondly, the essence of the declaration in question was the official’s statement to the effect that the GCA restrictive measures applied or did not apply to him. However, the only possible grounds for application of the GCA to him lay in the position he had occupied in 2010 to 2014, which had been well known to his employer to whom the declaration was submitted. The obligation to file a declaration in the present case had thus not been aimed at revealing certain potentially hidden facts, such as secret collaboration with the security services of former totalitarian regimes.
(iii) The fifth applicant (pre-1991 era) – The impugned lustration measures were enacted and applied more than twenty-three years after Ukraine’s transition from totalitarian Communist rule to democracy in 1991. In the absence of any specific individual wrongdoing, implementation of restrictive measures of such seriousness after such a long lapse of time required very strong justification, which had failed to be given.
Indeed, the applicant had been a mere local official working in agriculture; there was no indication that his activities in the Communist party had been associated with any human rights abuses or specific anti-democratic activities, so that he could conceivably pose a threat to the newly established democratic regime. The disproportionate nature of the lustration measure was thus particularly pronounced in his case.
Conclusion: violation for all the applicants (unanimously).
The Court also found, unanimously, a violation of Article 6 § 1 (civil limb; criminal limb inapplicable) in respect of the first three applicants, as regards the length of proceedings.
Article 41: EUR 5,000 to each applicant in respect of non-pecuniary damage; claim for pecuniary damage dismissed, given that relevant proceedings can be reopened.
(Compare post-Communist lustration cases: Turek v. Slovakia, 57986/00, 14 February 2006, Information Note 83; Sõro v. Estonia, 22588/08, 3 September 2015, Information Note 188; Ivanovski v. the former Yugoslav Republic of Macedonia, 29908/11, 21 January 2016, Information Note 192; Anchev v. Bulgaria (dec.), 38334/08 and 68242/16, 5 December 2017, Information Note 213; and, in the context of Article 14 with Article 8: Sidabras and Džiautas v. Lithuania, 55480/00 and 59330/00, 27 July 2004, Information Note 67, and Naidin v. Romania, 38162/07, 21 October 2014, Information Note 178)