MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-40

7 December 2023

1483rd meeting, 5-7 December 2023 (DH) Human rights   H46-40 Polyakh and Others v. Ukraine (Application No. 58812/15) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2020)1074, DH-DD(2023)1231

 

Application	Case	Judgment of	Final on	Indicator for the classification
58812/15+	POLYAKH AND OTHERS	17/10/2019	24/02/2020	Complex problem
38977/19	SAMSIN	14/10/2021 19/10/2023[1]	28/02/2022 19/01/2024

Case description

These cases concern the applicants’ right to respect for their private and family life which has been violated as a result of lustration proceedings (violation of the Article 8).

In the Polyakh and Others case, the applicants had been dismissed in 2014, banned from civil service positions for 10 years, and had had their names published in a publicly accessible online Lustration Register. The Court expressed its doubts as to whether the interference had pursued a legitimate aim. It also noted that such measures had been based on what appeared to be a form of collective responsibility for working in the civil service for more than a year during the period when Mr Yanukovych was in power, or for having been a Communist Party official before 1991, taking no account of any individual role or link to any antidemocratic developments.

In the Samsin case, the Court indicated that the imposition on the applicant – a judge of the Supreme Court and the Chairman of the High Judicial Qualification Commission at the time of the events – of the measures envisaged by the Government Cleansing Act, in the absence of any evidence of specific known acts of misconduct on the applicant’s part, had not been necessary in a democratic society.

The Polyakh and Others case also concerns the issue of an unfair trial owing to the length of the proceedings of the first three applicants – the proceedings had lasted more than four and a half years at one level of jurisdiction, including the proceedings before the Constitutional Court on the constitutionality of the Government Cleansing Act (violation of the Article 6).

Status of Execution

The authorities submitted action plans on 19 November 2020 and on 13 October 2023 (see
DH-DD(2020)1074 and DH-DD(2023)1231 respectively) that can be summarised as follows:

Individual measures

In the Polyakh and Others case, the just satisfaction for non-pecuniary damages has been paid to all the applicants. They have also been reinstated at the positions they had occupied before the dismissals and have recovered their lost income, except for Mr Yakubovskyy who has not requested the recovery of lost income, and Mr Bondarenko, who has not applied for the reopening.

In the Samsin case, the just satisfaction in respect of non-pecuniary damage has been paid to the applicant. The applicant was reinstated to his position of Judge of the Supreme Court on 1 August 2022. In November 2022, he submitted a resignation application, which was granted by the High Council of Justice. The applicant also reached the retirement age in November 2022 and therefore can no longer administer justice.

The names of all the applicants were deleted from the public Lustration Register.

General measures

Legislation:

The Ministry of Justice continues its work on the draft law “On Amendments to the Law of Ukraine ‘On Government Cleansing’ in order to bring its provisions in line with the European standards. During the period of martial law, publication of open data information in the Lustration Register has been suspended.

Proceedings before the Constitutional Court:

The examination of the constitutionality of the Government Cleansing Act (No.1682-VII), initiated in 2014 and 2015 by the Supreme Court and the members of the Parliament, is still on-going. Following the open plenary session, on 23 June 2020 the Constitutional Court continued the examination of the case in camera.

Judicial practice:

According to the authorities, the Supreme Court has developed a clear and consistent judicial practice in lustration related cases, that takes into account the findings of the European Court of Human Rights as expressed in the Polyakh and Others judgment, while awaiting the adoption of the decision of the Constitutional Court and the amendments to the legislation. The authorities provided examples of recent Supreme Court judgments with this regard.

Statistical data:

The authorities provided information on the number of lustration related cases (submitted, pending and considered) before the domestic courts of three instances for 2020. Without interpretation or conclusive remarks, they further provided statistical information on the types of lustration complaints and the progress in their consideration by domestic courts for the years of 2021-2022.

Publication and dissemination:

Both judgmentshave been translated, published and disseminated.

Analysis of the Secretariat

Individual measures

In the Polyakh and Others case, all the negative consequences have been remedied by the individual measures adopted by the authorities. The fifth applicant of the case, Mr Bondarenko, an official employed with local authorities in agriculture, who in 1990-1991 was a communist official at the local level, hasn’t applied for the reopening of the impugned proceedings. No other individual measures appear to be necessary in his case either.

In the Samsin case, on 19 October 2023 the Court dismissed the applicant’s claim with regard to the pecuniary damage in its judgment under Article 41 of the Convention (just satisfaction), as he submitted fundamentally different new claim and there was no causal link between the new claim and the breach found in the principal judgment.[2]

General measures

Legislative measures and pending Constitutional Court proceedings

It is regrettable that no progress has been made since the previous communication of the authorities in 2020 regarding the adoption of the draft law amending the lustration legislation and in the proceedings before the Constitutional Court.

The draft law is still at the stage of drafting before the Cabinet of Ministers. The Committee may therefore wish to recall the Venice Commission Final Opinion on the Law on Government Cleansing (Lustration Law)[3] and the Parliamentary Assembly Resolution on Measures to dismantle the heritage of former communist totalitarian systems,[4] and call upon the authorities to adopt or revise the legislation to respond adequately to the Court’s judgments. The Committee may also wish to note with regret that the proceedings still pending before the Constitutional Court leave uncertainty as to whether the Government Cleansing Act (the Act) is compatible with the Constitution.

To avoid any further legal uncertainty, the Committee may wish to call upon the authorities to conclude the pending constitutional proceedings and introduce the legislative amendments, expeditiously, taking full account of the Convention and the principles set out by the Court’s case-law in similar cases.

Supreme Court’s practice developments

The Committee might wish to welcome the fact that the Supreme Court, while examining lustration cases, takes into account the relevant principles set out in the case-law of the Court, the applicable international standards on the lustration. In particular, the Supreme Court reviews whether there is a legitimate aim, verifies whether individual assessment of the application of the Act and protection of personal data of individuals subject to lustration were also undertaken. The Supreme Court also took a consistent approach of awarding compensation, notably for the lost income, in lustration cases, if requested.

Indeed, this Supreme Court’s practice has been implicitly acknowledged by the Court in the recent Kuznetsov and others judgment about dismissal from the positions in the civil service following the adoption of the Act.[5] Despite finding a violation of the applicant’s right to fair trial due to the lengthy proceedings at domestic level,[6] their claims under Article 8 were rejected as manifestly ill-founded as they were reinstated in their positions and received the compensation requested.

Thus, in view of the Supreme Court’s well-established Convention-compliant practice that comprehensively addresses the violations identified by the Court in the Polyakh and Others judgment, the Committee may wish to decide to transfer the current group of cases from the enhanced supervision procedure to the standard one.

Financing assured: YES