Ensuring compliance of laws on lustration with the requirements of a state based on the principle of the rule of law: European standards

Abstract

A range of international acts of a regional nature, which are designed to restore a civilized, liberal state based on the principle of the rule of law, as well as those international acts that regulate social relations arising in the member states of the Council of Europe during the purge of power, have been identified. Resolution of the Parliamentary Assembly of the Council of Europe No. 1096 (1996) "On measures aimed at eliminating the legacy of former communist totalitarian regimes” was analyzed. Attention is focused on such negative phenomena, which are indicated in it and which, despite the fact that regulatory and organizational and legal mechanisms for the purification of power were created, could not be eradicated, which led to threats to the newly created democracy. Attention is drawn to the application of procedural means inherent in such a state, as well as to the balance that must be observed in their application, so that a state with a young democracy does not become no better than a totalitarian regime that must be eliminated. It is emphasized that human rights in themselves are a value and rights should be ensured even to those people who, when they were in power, did not observe them themselves. The Guiding Principles for ensuring compliance of lustration laws and similar administrative measures with the requirements of a state based on the principle of the rule of law have been analyzed. The following requirements for the national legislation on the purification of power are singled out: 1) lustration is directed at the following two threats: a threat to fundamental human rights and a threat to the democratization process; 2) prohibition of revenge, including political revenge; 3) prohibited by abuse of the results of the lustration process (including - prohibition of police abuse; prohibition of social abuse); 3) the purpose of lustration is to protect the newly created democracy; 4) creation of a special independent commission on lustration, which includes citizens respected by society; 5) lustration is applied to a subject who holds a specific position and uses this position to commit actions/inactions that pose a threat to the creation of a free democracy - uses the position to violate human rights, block democratic processes; 6) the range of positions to which lustration is applied must be limited; 7) grounds for choosing positions for lustration - civil service positions that involve significant responsibility for defining or implementing state policy and measures related to internal security or civil service positions that involve issuing an order and/or committing a violation of human rights (law enforcement agencies, service security and intelligence, judicial authorities and prosecutor's office); 8) the term of deprivation of office on the basis of lustration - no longer than five years; 9) persons who gave orders, committed or significantly contributed to the commission of serious violations of human rights may be prohibited from holding positions; if a body has committed serious violations of human rights, then it is considered that its member, employee or representative was a participant in these violations, if he held a high position in this body, until he can prove that he did not participate in planning, directing or carrying out such policies, practices or actions; 10) prohibition to subject an official to lustration solely because of membership or activity in favor of any organization that was legal at the time of such membership or activity (except for the cases specified in the previous subparagraph), or because of personal views or beliefs; 11) the possibility of lustration of "conscious employees” who, together with state authorities, really participated knowingly, understanding the consequences, in serious violations of human rights and actually caused harm to other persons; 12) provision of full due process protection to persons subject to lustration. Attention is drawn to the Bangalore principles of the conduct of judges and their correlation with the legislation of Ukraine.