Published: 13 Jan 2020
Polyakh and others v Ukraine
Case No.: 58812/15 and 4 others
Judgment date: 17 October 2019
The applicants are five career civil servants who were dismissed pursuant to Ukraine’s Government Cleansing (Lustration) Act 2014 (“the GCA”). The adoption of the GCA followed the fall of President Viktor Yanukovych’s administration, brought about by the “EuroMaidan” protests in 2014.
The GCA provided for the dismissal (and a maximum 10 year ban) of civil servants who had either held their position for at least one year during the Yanukovych regime (2010-2014), held certain positions within the Communist Party prior to 1991, or had who failed to file lustration declarations.
The first three applicants were dismissed on the basis that they had worked in the civil service during the Yanukovych regime. The fourth applicant was dismissed after failing to file a lustration declaration in time. The fifth applicant lost his job because he was a second secretary of the Communist Party at the district level before 1991.
Pending a ruling by Ukraine’s Constitutional Court on the constitutionality of the GCA, the first three applicants’ cases were suspended in 2014-2015. The other two applicants’ dismissals were upheld by the courts in 2018 on the grounds that, among other things, the Constitutional Court had not yet ruled the GCA unconstitutional. The proceedings before the Constitutional Court were pending at the time of the European Court’s judgment.
The applicants claimed that their dismissal violated Art. 8. (right to respect for private life), and in respect of the first three applicants, Art. 6. (right to a fair trial) on account of the ongoing failure of the domestic courts to examine their claims. The second applicant also raised a violation of Art. 13. (right to an effective domestic remedy).
The Court found two violations. Firstly, it ruled that there had been a breach of Art. 6 (1) due to the length of the proceedings in the first three applicants’ cases. Ukraine’s Supreme Court had asked the Constitutional Court to examine the cases as a matter of urgency. However, the Supreme Court had not been informed of any substantive developments in the cases since July 2017, and there was no evidence that any procedural steps were taken after March 2016. Overall, the first three applicants’ proceedings had lasted for more than four-and-a-half years at one level of jurisdiction. Although the applicants’ cases were complex, in these circumstances the length of proceedings could not be considered “reasonable”.
Secondly, the Court ruled that there had been a breach of Art. 8 (right to respect for private life) in respect of all five applicants. The Court noted that the applicants had been dismissed, banned from civil service positions for 10 years, and had had their names publicly published in an online “Lustration Register”. The combination of these measures had very serious consequences for the applicants’ professional and personal lives, which satisfied the Court’s threshold of severity applied to considering interferences under Art 8. It was not in dispute that this was an interference under Art. 8 (1). In relation to Art. 8 (2), the central question was whether the dismissals pursued a legitimate aim and were ‘necessary in a democratic society’.
Having identified doubts as to whether the dismissals provided for in the GCA in fact pursued ‘legitimate aims’, the Court moved to examine the question of necessity on the presumption that the measures in question did pursue certain of the aims widely considered (for example by the Venice Commission) as legitimate. The Court noted that the first three applicants had not been dismissed based on individual assessments, but rather based on the group categories to which they belonged (a collective liability for working for Mr. Yanukovych). Given that the measures had been very restrictive and of broad scope, the Government was not able to demonstrate that the aims pursued were legitimate nor that the circumstances were sufficiently pressing to justify the means.
As regards the fourth applicant, the Court found that his dismissal for a ‘minor delay’ in filing the lustration declaration was not ‘necessary in a democratic society’.
In the case of the fifth applicant, the Court found that the Government failed to give sufficient reasons to justify his dismissal merely on the basis of occupying a position in the Communist Party pre-1991, without any allegations of specific wrongdoing on his part. His dismissal was therefore found to be disproportionate. A violation of Art. 8. in respect of all of the applicants was therefore found.
The Court found that no separate issue arose with respect to Art. 13. for the second applicant, and awarded each applicant €5,000 in non-pecuniary damages.
Lustration has been defined by Dr Eric Brahm as “the mass disqualification of those associated with the abuses under the prior regime”. A number of lustration measures were imposed by former communist countries after the fall of the Soviet Union, and the legitimacy of lustration measures (in principle) was affirmed by the European Court in Ždanoka v. Latvia, No. 5827/00, 16.03.06.
However, the Court considered that its previous findings in the post-Communist lustration cases had only partial relevance in the present case, since the measures provided for under the GCA were much broader in scope and were applied in different circumstances to the post-Communist period.
The circumstances in Polyakh were distinguished from the post-Communist precedents on the basis that the latter related to collaborators of the secret services of totalitarian regimes, whereas the Yanukovych regime was at least formally democratic. Moreover, the applicants appeared to have been dismissed based on a collective liability of individuals employed by the state during the Yanukovich regime, regardless of the specific functions they performed and their link to the regime’s antidemocratic tendencies.
The Court was not convinced that the legislative scheme was sufficiently narrowly tailored to achieve its aims. The GCA was compared with the schemes in Poland and Latvia which were limited in application to those who placed an active role in the activities of the former regimes which were contrary to democracy (Matyjek v Poland, No. 38184/03, 24.04.07 and Ždanoka v. Latvia, No. 5827/00, 16.03.06).