Dismissal and disclosure of civil servants because of their membership in a communist party violated the right to privacy

JUDGMENT

Polyakh and others v. Ukraine 17.10.2019 (no. 58812/15, 53217/16, 59099/16, 23231/18, and 47749/18). 

see here 

SUMMARY

The Court first held that the first three applicants’ right to a fair trial had been violated because
proceedings on their dismissal had lasted more than four and a half years and were still ongoing.
As for the Article 8 issue, the Court did not doubt that in the period when former President Viktor
Yanukovych was in power the Ukrainian civil service and democratic governance had indeed faced
considerable challenges which justified a need for reform. However, the Court found in particular
that the GCA was of very broad application and had led to the dismissal of the applicants simply for
having worked in the civil service for more than a year while Mr Yanukovych was in power or for
having been a Communist Party official before 1991.

The law therefore had no regard to the applicants’ individual roles or whether they had been
associated with any of the undemocratic acts which had taken place under the former president. In
that context, Ukraine’s Government Cleansing Act differed from more narrowly targeted lustration
programs put in place in other Central and Eastern European States.

COMMENT

Interesting decision as to why the appeals are admissible despite the Constitutional Court’s ruling not being issued and despite the Ukrainian Government’s objection to the lack of internal remedies. The reasoning given by Strasbourg is that the Constitutional Court’s delay in delivering the verdict was long and unjustified (3.5 years) and that the nature of the case should have been dealt with in a timely manner.

Also of interest is the ECtHR’s considerations of breach of proportionality with regard to the dismissal of civil servants.

PROVISIONS

Article 6 par. 1

Article 8

PRINCIPAL FACTS

The applicants, Vyacheslav Polyakh, Dmytro Basalayev, Oleksandr Yas, Roman Yakubovskyy, and
Sergiy Bondarenko, are Ukrainian nationals who were born in 1970, 1976, 1954, 1977, and 1957
respectively and live in Kyiv, Mykolayiv, Chernigiv, Yaremche (Ivano-Frankivsk Region), and
Oleksandrivka (Donetsk Region) (all in Ukraine).

After the departure from office of former President Viktor Yanukovych as a result of the
“EuroMaidan” protests in February 2014, the new government and parliament passed a law, the
Government Cleansing (Lustration) Act of 2014, which provided for the dismissal of various
categories of officials.

The people concerned were those who had occupied certain positions in the civil service for at least
one year from the time Mr Yanukovych had become president in February 2010 to his departure in
February 2014, or had held certain positions in the Communist Party of the former Ukrainian Soviet Socialist Republic before 1991. Civil servants also had to fill in “lustration declarations” if they were covered by the law.

The first three applicants were dismissed under the GCA in October 2014, based on the fact that
they had worked in the civil service in the 2010-2014 period. The fourth applicant was dismissed
after failing to file a lustration declaration in time, while the fifth applicant lost his job because he
was a second secretary of the Communist Party at the district level before 1991.

In court proceedings brought by the applicants to be reinstated, the first three applicants’ cases
were suspended in 2014 or 2015 pending a ruling by the Constitutional Court on the constitutionality
of the GCA. The other two applicants’ dismissals were upheld by the courts in 2018 on the grounds
that, among other things, the Constitutional Court had not ruled the law unconstitutional.
According to information available at the time of the Court’s examination of the case, the
Constitutional Court was still considering the matter of the GCA’s constitutionality.

THE DECISION OF THE COURT

Article 6

The Court decided to examine the first three applicants’ case as a complaint about the length of the
domestic proceedings, which 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 GCA.
It noted that the Government had objected that the applications were inadmissible for
non-exhaustion of domestic remedies because the applicants’ cases were still being dealt with by
the courts. Furthermore, the applicants had themselves contributed to the situation by not insisting
that the domestic courts resume proceedings and deliver judgments in their cases in the absence of
the Constitutional Court’s decision on the GCA’s constitutionality.

However, the Court held that it was not reasonable to expect the applicants to do so given that the
courts had considered that a constitutional ruling was necessary to resolve the applicants’ cases, a
position endorsed by the Plenary of the Supreme Court.

The applicants could also have undermined their own positions by not waiting for a decision from
the Constitutional Court decision against the GCA and they could not have known that the
Constitutional Court would exceed the legal time-limits to carry out a review of the bill.
Overall, the applicants could not be blamed for either not opposing the referral of a question to the
Constitutional Court or for not asking for the resumption of suspended proceedings.

The Court noted that the specific nature of Constitutional Court proceedings had to be taken into
account when considering the length of proceedings, however, that factor could not provide a full
explanation for the delay in the applicants’ cases.

Firstly, the Supreme Court had asked for an urgent examination of the issue and the Government
had not shown that other urgent Constitutional Court cases had had precedence. There had not
been any major developments at Constitutional Court level since July 2017, beyond deliberations,
nor any convincing explanation of why the statutory time-limits for consideration of the referred
question had been exceeded.

The Court concluded that the length of the proceedings in the first three applicants’ cases could not
be considered as reasonable and rejected the Government’s objection of non-exhaustion of
remedies. It also held that there had been a violation of the three applicants’ right to a trial within
reasonable time.

Article 8

The Court first noted that this case differed from other previously decided cases against Central and
Eastern European States which related to measures against former alleged collaborators of
totalitarian secret services and the specificity of the applicants’ situation and the GCA measures had
to be taken into account.

The Court found that the measures against the applicants had interfered with their right to respect
for their private life. In particular, they had been dismissed, banned from civil service positions for 10
years, and had had their names published in a publicly accessible online Lustration Register.
Those measures had been set out in the GCA, which had been accessible as it had been published
and foreseeable in its implications for the applicants.

However, the Court had doubts as to whether the interference had pursued a legitimate aim.
Among other issues, it noted that previous lustration laws had dealt with alleged security service
personnel of totalitarian States, whereas the first four applicants had worked for what was in
principle a State based on democratic constitutional foundations. The measures had also been based
on what appeared to be a sort of collective liability for working under Mr Yanukovych, taking no
account of any individual role or link to any antidemocratic developments.

There was a possibility that the law had been passed for reasons of vindictiveness against those who
had worked for former Governments, which implied the politicisation of the civil service, which by
itself was against the proclaimed purpose of the legislation. It was a well-established Court case-law
principle that lustration could not serve for punishment, retribution or revenge and that applied also
to the GCA.

Nevertheless, the Court had more concerns about the proportionality of the GCA measures as
applied to the applicants. This was part of its consideration of whether they were “necessary in a
democratic society”.

The first three applicants

The Court noted that the first three applicants had been dismissed owing to having served under the
former president, whose time in office had been marked by negative developments in terms of
respect for democracy, the rule of law and human rights.

The Court accepted that some changes in the civil service could have been necessary after that
period, including steps against individuals who were personally associated with such developments.
States in principle had wide discretion (“margin of appreciation”) in dealing with the legacy of
communism via lustration.

In the case of the applicants, the measures had been very restrictive and of broad scope. Very
convincing reasons had thus been required to show that they could be applied without any
individual assessment of their actions.

However, the Government had not pointed to any discussion of such reasons in the parliamentary
debates on the GCA, which furthermore appeared to lack cohesion between its guiding principles –
presumption of innocence and individual liability – and its actual operation.

Other issues were that the GCA was broader than similar measures in other countries, which had
only targeted people who had actively worked for the former communist authorities. By contrast,
that broad scope had led to the second and third applicants being dismissed, even though they had
taken up their civil service posts long before Mr Yanukovych had become president and had simply
failed to resign within one year of him taking office.

There was also lack of clarity as to the applicable time-frame: the Government had argued that the
law aimed at dealing with the ills caused by all post-communist elites, however, the period from
1991-2010 was excluded from the law’s operation. There was also no explanation for why the oneyear period was chosen as the criterion for the law’s application.

The Government had raised various arguments to support the law, such as the practice of placement
of corrupt officials in the civil service under Mr Yanukovych, a 2010 Constitutional Court decision
which had increased his powers and the alleged politically motivated persecution of EuroMaidan
protesters. However, those issues were of no relevance in the decision to apply the GCA to the
applicants. No connection was shown between them and those negative developments.

The Government had argued that it had not been possible to apply the GCA in a more individualised
way because of the emergency in eastern Ukraine. However, the GCA was not mentioned in the
declaration made by Ukraine under the Convention provision (Article 15) allowing derogation from
certain Convention obligations in time of emergency.

While the Court was aware of the situation in Ukraine at the time, it noted that the alleged urgency
of the need for the GCA contrasted with the fact that the applicants were to be barred from office
for 10 years. Personnel changes might well have been necessary in Ukraine after those events, but
there was no sign that the situation would have remained unstable for so long so as to prevent a
review of each individual’s role and the possible phasing out of restrictive measures over time.
Lastly, the Court noted that the applicants had been removed from office and information about
that decision had been made publicly available even before any review of those decisions by courts.
The review that had subsequently begun was still going on and had already lasted almost half of the
10-year exclusion period envisaged by the GCA.

The fourth and fifth applicants

The fourth applicant had been removed from office for filing his lustration declaration four days late.
If he had been dismissed because of his association with the rule of former President Yanukovych
then the considerations set out for the first three applicants applied. If he had been dismissed for
the late filing, then that was a disproportionate measure, given the minor technical nature of the
applicant’s omission.

The fifth applicant had been dismissed because of his former role as a second secretary of a district
in the Communist Party.

The Court noted that it had found violations of the Convention in cases against other States where
there was a big time gap between a person’s alleged involvement in totalitarian structures and
lustration measures against them.

It noted that the time gap in the fifth applicant’s case was 23 years and that there had been no
suggestion of wrongdoing on his part in the past. It concluded that the Ukrainian authorities had
failed to provide reasons to justify lustration against people who had merely occupied certain
positions in the Communist Party prior to 1991, where there was no allegation of specific
antidemocratic activities on their part.

Furthermore, the measure against the fifth applicant had been particularly disproportionate. No
serious argument had been made that as a local official working in agriculture he had posed any
threat to the newly established democratic regime and the authorities had demonstrated a total
disregard for his rights.

In conclusion, the interference with all five applicants’ rights had not been necessary in a democratic
society and there had been a violation of their rights under Article 8.

Just satisfaction (Article 41)

The Court held that Ukraine was to pay each applicant 5,000 euros (EUR) in respect of non-pecuniary
damage. In respect of costs and expenses it awarded EUR 1,500 to the first applicant and EUR 300
each to the second to fifth applicants echrcaselaw.com).


ECHRCaseLaw

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