ЗАКОН УКРАЇНИ «ПРО ОЧИЩЕННЯ ВЛАДИ» В РОЗРІЗІ ДОТРИМАННЯ ПРАВ ПУБЛІЧНИХ СЛУЖБОВЦІВ

Abstract

The article is devoted to the analysis of the Law of Ukraine «On Purification of Power», in terms of observing the rights of public servants. Two main approaches to lustration have been identified. The experience of Estonia and Latvia regarding this phenomenon, the decision of the European Court of Human Rights in the case «Polyakh and others v. Ukraine» are analyzed. It was found that the Law of Ukraine «On Purification of Power» violates the rights of civil servants, because it does not require any proof of individual guilt, but applies to a wide range of persons. Draft law No. 3326 of April 13, 2020, which provides for amendments to the Law of Ukraine «On Purification of Power», was analyzed. It has been established that this draft law is not only not aimed at implementing the decision of the European Court of Human Rights, but also increases the range of persons to whom lustrations or bans may be applied. Also, draft law No. 2287 of October 18, 2019 was analyzed. It is suggested that the Law of Ukraine «On Purification of Power» be recognized as invalid. However, such a position also seems incorrect, because not all of the Law violates human rights, but only those of its provisions that lead to the absence of individualization of guilt and the application of its provisions to a wide range of persons. The necessity of making changes to Art. 3 of the Law of Ukraine «On Purification of Power», because it contains provisions that violate the requirements regarding the individualization of guilt and the non-application of the Law to a wide range of persons, clause 1 of Art. 6 (right to a fair trial), Art. 8 (right to respect for private and family life) of the Convention on the Protection of Human Rights and Fundamental Freedoms. The decision of the Supreme Court dated June 3, 2020 in case No. 817/3431/14 was examined, in which the Court came to the conclusion that the Law of Ukraine «On the Purification of Power» did not provide for any real procedural guarantees under which individuals would have the opportunity to prove that, despite the positions they held, they did not participate in any human rights violations and did not use or support anti-democratic measures. The attention was focused on the fact that the plaintiff was reinstated in his position by this decision, and in the part of the claims for the collection of the average salary during the forced absence, the case was sent for a new trial to the court of first instance (it was decided to collect the average salary during the forced absence in favor of the plaintiff ). The necessity of submitting a draft law to the Verkhovna Rada of Ukraine, which would provide for amendments to Art. 3 of the Law of Ukraine «On Purification of Power»