Compatibility of lustration measures application with the right to respect for private life according to art. 8 of the Convention for the protection of human rights and fundamental freedoms

Abstract

The article examines the compatibility of the application of lustration measures in accordance with the Law of Ukraine “OnGovernment Cleansing (Lustration)” of 2014 with the provisions of Article 8 of the 1950 Convention for the Protection of HumanRights and Fundamental Freedoms regarding the right to respect for privacy. Based on the judgment of the European Court of HumanRights in “Polyah and Others v. Ukraine” and its previous case-law on the compatibility of the measures applied to the applicants bythe authorities of the States Parties to the Convention in accordance with the legal acts on lustration adopted mainly during the transitionperiod from the totalitarian communist regime to democracy, with art. 8 of the Convention, the criteria for compatibility of the applicationof lustration measures with Article 8 of the Convention in the modern period are defined and analyzed. Among those are: whetherlustration measures were applied in accordance with the law, whether their application had a legitimate aim answering a “pressing socialneed” proportionate to the legitimate aim pursued and whether lustration measures were necessary in a democratic society.Lustration measures will be considered as having been applied in accordance with the law, if such law was accessible (published)and formulated with sufficient accuracy; the persons concerned could have foreseen the extent of the adverse effects of their actionscontrary to its provisions; the law contained a remedy against arbitrariness of public authorities.The lustration measures may be considered pursuing a legitimate aim if their use is justified by the need to protect the publicfrom persons who, through their past behavior, could threaten the newly formed democratic regime or to purify public administrationfrom those who have committed widespread corruption. In doing so, a prerequisite for assessing the compatibility of the purposes ofthe lustration measures application with the objectives recognized as legitimate is taking into account all the circumstances of the applicants’particular cases relating to the determination of the existence or absence of a violation of a specific article of the Convention andtheir “need in a democratic society” in meaning of art. 8.2 of the Convention.The necessity of lustration measures application in a democratic society is determined by their scope, nature and context. If theobjectives of the application could be achieved in less intrusive ways, their likelihood to be motivated by vindictiveness against the personsinvolved in previous governments is rising and does not meet the criterion of “necessity in a democratic society”. If the applicationof lustration measures to persons is based solely on the fact that they occupy certain relatively high positions during the rule of a particulargovernment, irrespective of their functions, there is a risk that the state will exceed its powers by taking such measures. Accor -ding to the ECtHR standard, the application of lustration measures must be individualized – at the level of each individual case. Individualizationof lustration measures use is also possible at the legislative level, however – in the presence of qualitative parliamentaryand judicial reviews of such a legislative scheme. This takes into account the severity of the measures applied and whether the legislativescheme is sufficiently narrowly designed to meet the pressing social need, at the request of which it is applied on the basis of theprinciple of proportionality.
 Lustration measures can be applied if there is a clear explanation for their temporal frame – with reference to specific events ornegative precedents of a particular government period of rule, where the key is to prove the applicants’ identified relationship to specificnegative events.Publication of information about persons to whom lustration measures have been applied is possible only after they have exhaus -ted the possibility of challenging such measures. At the same time, the remedies available must act without delay.Lustration measures application to the person who did not file the lustration declaration within the terms stipulated by the laware proportional to the legitimate aim if the declaration disclosed certain potentially hidden facts about the person, obliged to submit it.Otherwise, imposition of such a severe restrictive measure for a minor delay in submitting a technical application cannot be consideredas “necessary in a democratic society”.The timing of adoption and implementation of lustration measures is a key consideration in assessing their proportionality. Suchmeasures are, by their nature, temporary, and the objective necessity for the restriction of individual rights resulting from this proceduredecreases over time. Severe lustration measures adopted and implemented in twenty years after the transition from a totalitarian communistregime to democracy require very strong justification. In its absence, their application does not meet the criterion of necessityin a democratic society.