Beyond Lustration: Personnel Reform in the State Apparatus of Ukraine

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Abstract

Pursuant to an initiative by USAID’s Fair, Accountable, Independent and Responsible Judiciary Program (FAIR) in Ukraine, I was invited to participate as an independent expert providing expertise on a number of lustration initiatives that sprang up in the aftermath of the political changes that took place in Ukraine early in 2014. I understand that the USAID’s Fair, Accountable, Independent, and Responsible (FAIR) Judiciary Program in Ukraine is aimed at supporting legislative, regulatory and institutional reform of judicial institutions in order to build a foundation for a more accountable and independent judiciary.

One of the lustration initiatives, entitled ‘Law on the Restoration of Trust in the Judiciary of Ukraine’, was approved by the Verkhovna Rada (Parliament) in April 2014. Its intention is to provide the impetus for fundamental changes within the judiciary. Calls for such changes have increased dramatically as a result of the events that took place in Ukraine during the previous six months (November 2013 – April 2014). My task was to assist FAIR to ensure that the reform process would benefit from
European and international technical input and best practice. I was assigned the task of reviewing the Draft Law from the point of view of achieving the need for expediency without sacrificing the outcomes of reform. This task has involved the identification of
gaps and areas in which the Draft Law could have been improved in order to support Ukraine’s commitment to democratic reform. It included providing expertise and knowledge of lustration to assist the stakeholders involved in reforming the judiciary;
and it included identifying best practice in the selection of the members of the proposed Special Commission, which will be established under the new law.

As a precursor to carrying out my brief I was invited to recount my knowledge and experience to the relevant stakeholders involved in reforming the judiciary. I provided them with a summary of lessons learned in other countries regarding lustration and the vetting of judges, executive branch officials, law enforcement agencies, and other public officials. The dissemination of this experience was achieved through meetings and public forums held with drafters of lustration laws, judges of the Supreme Court,
members of civil society, journalists, OSCE/ODIRH Office, FAIR Justice Project, USAID, and the Ukrainian public (see Appendix A, Itinerary).

Thirdly, my brief was also to provide guiding principles on lustration and to make recommendations for future action. Together these principles and recommendations will provide a framework for reviewing and commenting on further legislative initiatives
concerning lustration laws and similar legislation.

In this report, I shall therefore provide:
(i) general principles for conducting personnel reforms, including lustration, and their problems and perils. I will also suggest alternative to proposed personnel reforms;
(ii) opinions about the best practice for establishing a proposed Special Commission provided for in the Law on the Restoration of Trust in the Judiciary; and
(iii) recommendations concerning the extent of the reform of the judiciary.
Original languageEnglish
PublisherThe FAIR Justice Project
Number of pages11
Publication statusPublished - 19 Apr 2014

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