Аналітично-порівняльне правознавство (May 2024)
The influence of the decision of the European Court of Human Rights in the case "Polyakh et al. v. Ukraine" on the development of lustration as an independent type of constitutional and legal responsibility in Ukraine
Abstract
The article is devoted to the analysis of lustration as an independent type of constitutional and legal liability in Ukraine and its evolution under the influence of the decision of the European Court of Human Rights in the case "Polyakh et al. v. Ukraine” (became final on February 24, 2020). It is noted that lustration, in view of its principles - presumption of innocence, individual responsibility, guaranteed right to defense - and in view of the consequences for the person subject to lustration, is an "instrument” that leads to the restriction of the rights and freedoms of a person and a citizen. This is an independent type of constitutional and legal responsibility that is developing in Ukraine and is an integral part of the development of Ukraine as a democratic state. It is noted that since lustration limits the rights and freedoms of a person and a citizen, it must meet the following criteria: be established by law; have a legitimate purpose; to be necessary in a democratic society. The decision of the European Court of Human Rights in the case "Polyakh et al. v. Ukraine” was analyzed. As for the legitimate purpose, when applying lustration as an type of constitutional and legal responsibility in Ukraine, it was applied to a very wide range of persons, which did not correlate with the legitimate purpose and legal purpose, which was to protect a democratic form of government. This large circle of lustrated persons included persons for whom the application of lustration did not pursue a legitimate goal, and the interference with their rights was not proportionate. Since the decision of the European Court of Human Rights is a source of law in Ukraine, and Ukraine has an obligation to implement the decisions of the European Court of Human Rights, taking measures of a general nature to implement the decision "Poliakh et al. persons subject to lustration and its clear definition. As for the measures that were applied to all persons subject to lustration, such measures were as restrictive as possible, as broad as possible in scope, and no individual assessment of the behavior of the person subject to lustration was carried out. When improving the legislation on lustration, it is necessary to provide for an individual assessment of the person subject to lustration; to apply restriction measures, which are characterized by different degrees of restriction and to establish the criteria for their measurement and application.
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