CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 octobre 2019

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border-right-style:solid; border-right-width:0.75pt; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:middle } .s3EF7C9AE { border-top:0.75pt solid #808080; border-right:0.75pt solid #808080; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:middle } .s16087E0F { border-top:0.75pt solid #808080; border-left:0.75pt solid #808080; padding-right:5.03pt; padding-left:5.03pt; vertical-align:middle } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .sC36A6361 { font-family:Arial; color:#000000 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   FIFTH SECTION CASE OF POLYAKH AND OTHERS v. UKRAINE (Applications nos. 58812/15 and 4 others – see appended list)         JUDGMENT This version was rectified on 12 November 2019 under Rule 81 of the Rules of Court.   STRASBOURG 17 October 2019     FINAL   24/02/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Polyakh and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Gabriele Kucsko-Stadlmayer,   Ganna Yudkivska,   André Potocki,   Yonko Grozev,   Síofra O’Leary,   Lәtif Hüseynov, judges and Claudia Westerdiek, Section Registrar, Having deliberated in private on 24 September 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in five applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Ukrainian nationals whose names and dates of birth are listed in the Appendix, on the various dates listed in the Appendix. 2.     The applicants were represented by lawyers whose names are listed in the Appendix. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. 3.     The applicants alleged, in particular, that the application to them of restrictive measures under the Government Cleansing (Lustration) Act had breached their rights under Article 8 of the Convention. The first three applicants also complained that the domestic courts’ prolonged failure to examine their claims concerning their dismissal under the Act had breached their right to a fair trial within a reasonable time under Article 6 of the Convention. The second applicant also complained that he had had no effective remedy in respect of his complaints. 4.     On 30 May 2017 notice of the first three applications was given to the Government. 5.     On 14 November 2018 notice of the above complaints under Article   8 of the Convention in the fourth and fifth applications was given to the Government and the remainder of those two applications was declared inadmissible pursuant to Rule 54   §   3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE Background information concerning the events in Ukraine in 2010–2014 6.     On 7 February 2010 Viktor Yanukovych was elected President of Ukraine. The Office for Democratic Institutions and Human Rights of the Organisation for Security and Cooperation in Europe (OSCE) made a generally positive assessment of the electoral process (see paragraph   110 below). 7 .     On 25 February 2010 President Yanukovych took office. 8 .     On 30 September 2010 the Constitutional Court adopted a judgment by which it declared unconstitutional constitutional amendments of 2004 which had considerably reduced presidential powers and which had remained in effect from 2005 until the decision of the Constitutional Court was adopted. The European Commission for Democracy through Law (Venice Commission) criticised the decision and its consequences for the constitutional order of Ukraine (see paragraph 106 below). In practice, that decision resulted in an increase in the constitutional powers of the president by comparison with what they had been when the presidential elections had been held. 9.     A number of international observers expressed alarm at what they perceived as a campaign of selective prosecution of political opponents of President Yanukovych which had started in November 2010, when the new Prosecutor General had been appointed. These materials are summarised in the Court’s judgments in Lutsenko v. Ukraine (no. 6492/11, §§ 46 and 47, 3   July 2012), and Tymoshenko   v. Ukraine (no. 49872/11, §§   187 and 188, 30 April 2013), as well as in paragraphs 112 and 113 below). 10.     In 2012 the Commissioner for Human Rights of the Council of Europe expressed serious concern over allegations of political pressure on the Ukrainian judiciary (see the relevant report in Oleksandr Volkov v.   Ukraine , no. 21722/11, § 80, ECHR 2013). 11.     International observers, notably the OSCE, were of the opinion that the 2012 parliamentary elections in Ukraine had failed to meet international standards, owing in particular to interference by the administration in the electoral process, and had constituted a step backwards compared with the national elections held in 2010 (see paragraphs 111 and 112 below). 12.     President Yanukovych’s rule came to an end as a result of protests known as “EuroMaidan”, which took place from November 2013 to 22   February 2014. The events which took place during those protests are the subject of several other applications before the Court. 13 .     The EuroMaidan events are summarised in the following terms in a report by the International Advisory Panel (IAP), a body constituted by the Secretary General of the Council of Europe to assess the effectiveness of the investigations carried out by the Ukrainian authorities into events during the EuroMaidan demonstrations between November 2013 and February 2014 and the events in Odessa in May 2014: “1. In late November 2013, following the decision of the Ukrainian authorities not to sign the long-awaited EU-Ukraine Association Agreement, pro-European and anti-government demonstrations took place in Kyiv. The Ukrainian authorities’ ensuing attempts to disperse those demonstrations led to an increase in the number of protesters, the scope of their activity and their geographical spread. Between November 2013 and February 2014 a number of clashes took place, resulting in more than 100 protest-related deaths and more than 1,000 injuries (civilians and law enforcement officers) and some missing persons. The conflict between the Ukrainian authorities and EuroMaidan protesters ended in late February 2014 when several high-ranking individuals (including President Yanukovych) fled or resigned and there was a change in the government of Ukraine.” (Report of the International Advisory Panel on its Review of the Investigations into the Events in Odessa of 2 May 2014) 14.     By Law no. 742-VII of 21 February 2014 Parliament declared that the 2004 version of the Constitution had been restored. 15.     On 22 February 2014, by Resolution no. 757-VII, Parliament declared that Mr Yanukovych had unconstitutionally ceased to exercise his presidential functions and duties. It called an extraordinary presidential election, which took place on 25 May 2014. The applicants’ employment history in the relevant period 16 .     The applicants are career civil servants who, prior to their dismissal under the Government Cleansing (Lustration) Act of 2014 (“GCA”), occupied certain positions in the civil service. 17.     The first applicant started his career as an investigator and then became a district prosecutor in the Chernigiv Region, before working at the Chernigiv regional prosecutor’s office. On an unspecified date in or before 2005 he was transferred to the Prosecutor General’s Office (“PGO”). He then served as: (i)   deputy head of the documentation department at the PGO from 21   January 2012 to 16 July 2014 and (ii)   head of the documentation department at the PGO from 16 July 2014 to 23 October 2014. 18 .     The second applicant served in the following positions: (i)   deputy head of the tax police, head of the investigations section of the tax police of the Mykolaiv Region from 3 February 2009 to 8 May 2013, (ii)   head of the financial investigations department of the Directorate of the Ministry of Revenues and Duties in the region from 8 May 2013 to 29   July 2013, and (iii)   first deputy head of the financial investigations department of the Directorate of the Ministry of Revenues and Duties in the region from 29   July 2013 to 29 October 2014. 19.     The changes in the titles of the second applicant’s positions in 2013 and 2014 appear to have been related to the overall reorganisation of the State Tax Service, which prior to 2012 used to be an independent agency. In that year it was merged with the State Customs Service to form the Ministry of Revenues and Duties. There may have been similar changes in the title of the position occupied by the fourth applicant in the same period (see below). 20 .     The third applicant served as deputy prosecutor of the Chernigiv Region from 19 December 2002 to 23 October 2014. 21 .     The fourth applicant served as head of the Yaremche tax authority from 26 April 2006 to 25 March 2015. 22 .     The fourth applicant was reprimanded by the State Tax Service on 27 July 2006 and 11 September 2008 for “not taking measures for the proper organisation of work and effective control”, which had led to a failure to meet tax collection targets in the first six months of 2006 and 2008 respectively. 23 .     The fifth applicant in 1990-1991 occupied the position of the second secretary of a district department of the Communist Party of the Ukrainian Soviet Socialist Republic (Ukrainian SSR). From 16 March 2010 to 21 July 2015 he served as deputy head of the agriculture department of the Oleksandrivka District State Administration. The applicants’ dismissal under the GCA 24.     On 16 October 2014 the GCA came into force. It provided for the dismissal of individuals, like the applicants, who: (i) had occupied certain positions in the civil service in the period from 25 February 2010 to 22   February 2014 (“the one-year rule”) or in the Communist Party of the Ukrainian SSR prior to 1991 or (ii) failed to file lustration statements (declarations) as required by the GCA, and banned them from the civil service and certain other jobs for ten years (see paragraphs 73, 74, 75   (iii) and 77 below). 25.     Pursuant to the GCA, the applicants’ names were published in the Lustration Register, a publicly accessible online database maintained by the Ministry of Justice (see paragraph 78 below). [1] 26.     Relevant specific circumstances related to the applicants’ dismissal are set out below. The first three applicants 27.     In October 2014, based on their employment history (see paragraphs   18 to 20 above), the first three applicants were dismissed under the GCA. The fourth applicant 28 .     On 1 March 2014 the Cabinet of Ministers decided to dissolve the Ministry of Revenues and Duties and to again create a separate Tax Service and Customs Service. 29 .     On 16 January 2015 the applicant was warned that he would be made redundant owing to the dissolution of the Ministry (see paragraph   28 above). 30 .     On 24 February 2015 the State Tax Service ordered the launch of the declaration and screening procedure required by the GCA (see paragraph   77 below) in respect of the heads and deputy heads of regional offices of the Ministry (still in the process of dissolution). According to the screening schedule, the screening in the Ivano-Frankivsk region started on 12   March 2015. Under the GCA, the screened officials had to file a statement declaring whether they believed the GCA applied to them within ten days, by 22 March 2015. 31.     On 7 March 2015 the applicant received a letter from his employer informing him of the obligation to file a GCA statement. 32.     The applicant was on sick leave while the screening procedure was underway. According to him, he was in hospital from 10 to 25 March 2015. 33.     On 25 March 2015 the applicant was dismissed by his superior. The relevant order referred to the GCA in general but not to any of its specific provisions. 34 .     On 26 March 2015 the applicant filed his GCA statement. It apparently contained a declaration to the effect that the GCA did not apply to him. The fifth applicant 35.     On 17 July 2015, within the framework of the screening mandated by the GCA, the applicant filed a statement declaring that in 1990 to 1991 he had occupied the position of second secretary of the district department of the Communist Party of the Ukrainian SSR. On 21 July 2015 he was dismissed under the GCA on those grounds (see paragraph 75 (iii) below). Proceedings before domestic administrative courts The first applicant 36 .     On 13 November 2014 the first applicant lodged a claim against the PGO with the Kyiv Circuit Administrative Court, seeking his reinstatement. He argued, in particular, that his dismissal under the GCA had been contrary to the constitutional provisions prohibiting retroactive legislation and declaring that liability had to be individual (see paragraph 71 (vii) and (viii) below). It also contradicted the principles of lustration endorsed by the Parliamentary Assembly of the Council of Europe in Resolution 1096 of 27   June 1996 on measures to dismantle the heritage of former communist totalitarian systems and its related Guidelines (“PACE Resolution” and “PACE Guidelines” respectively, see paragraphs 104 and 105 below). The applicant also argued that the GCA did not meet the “quality of law” requirements of the Convention and was contrary to Articles 6, 8, and 14   and Article 1 of Protocol No. 12. He relied on the Court’s judgments concerning post-Communist lustration: Sidabras and Džiautas v.   Lithuania (nos. 55480/00 and 59330/00, ECHR 2004 ‑ VIII); Turek v.   Slovakia (no.   57986/00, ECHR 2006 ‑ II (extracts)); Matyjek v.   Poland (no.   38184/03, 24 April 2007); Bobek v. Poland (no.   68761/01, 17 July 2007); and Luboch v.   Poland (no. 37469/05, 15 January 2008). Lastly, the applicant argued that he had not contributed to the “usurpation of power” by the former President Viktor Yanukovych (the term used in the GCA, see paragraph 72 below) or violated human rights. He also objected to his name being listed in the GCA Register. 37.     On 17 November 2014 the Kyiv Administrative Court opened proceedings in the applicant’s case. 38.     On 20 January 2015 the court held a hearing at which it solicited the parties’ opinions as to the possibility of asking the Supreme Court to consider referring the issue of the constitutionality of the GCA to the Constitutional Court and suspending the proceedings until the Supreme Court examined the issue. Neither the applicant nor the defendant objected. At the close of the hearing the court referred the matter to the Supreme Court and suspended the proceedings. 39 .     On 5 January 2015 the first applicant complained to the Ministry of Justice, challenging the application of the GCA to him. On 11 February 2015 the Ministry responded that the law applied unreservedly to all the categories of officials listed in it, and that the relevant checks required by the Act were to be conducted by the officials who had the authority to dismiss the official concerned. 40.     The first applicant wrote to the Constitutional Court on several occasions to enquire about the proceedings concerning the GCA. He was informed that they were pending. The second applicant 41 .     On 28 November 2014 the second applicant lodged an appeal against his dismissal with the Kyiv Circuit Administrative Court, seeking reinstatement and lost wages. 42 .     On 19 December 2014 the court, at the second applicant’s request, decided to ask the Supreme Court to consider submitting the issue of the constitutionality of the GCA to the Constitutional Court and suspend the proceedings in the case until the Supreme Court examined the issue. The third applicant 43 .     On 24 October 2014 the third applicant lodged a claim against the PGO with the Chernigiv Circuit Administrative Court, seeking his reinstatement and lost wages. He argued, in particular, that his dismissal under the GCA had been contrary to the constitutional provisions prohibiting retroactive legislation and declaring that liability had to be individual (see paragraph 71 (vii) and (viii) below). He had not contributed to the “usurpation of power” by the former President Viktor Yanukovych or violated human rights. 44 .     On 18 December 2014 the third applicant requested that the proceedings in his case be suspended until the Constitutional Court resolved the Supreme Court’s constitutional review application (see paragraph   60 below). 45.     On the same day the court granted that request. 46 .     On 20 February 2015 an internal investigation conducted by the PGO concluded that the staff of the Chernigiv regional prosecutor’s office had been involved in the “unjustified persecution of individuals for legitimate protest activity”. This had been facilitated by a “lack of effective control” by the former leaders of the prosecution service in the region, including the third applicant. 47 .     On 15 December 2015 the third applicant, citing a delay in the examination of the matter by the Constitutional Court, requested that the proceedings be resumed. 48 .     On 24 December 2015 the Administrative Court rejected the third applicant’s request on the grounds that the proceedings before the Constitutional Court were pending and that therefore the circumstances which had led the court to suspend the proceedings had not ceased to exist (see paragraph 89 below for the relevant legislative provision). The fourth applicant 49 .     The fourth applicant lodged a claim with the administrative courts seeking reinstatement. He argued that: (i)   his dismissal had been contrary to domestic law because he had been dismissed while on sick leave (Article 40 § 3 of the Labour Code provides that an employer cannot terminate an employment contract when the employee is on leave, including sick leave of up to four months); (ii)   he had in fact filed the necessary statement after coming back from sick leave; (iii)   the GCA was contrary to the PACE Resolution and PACE Guidelines (see paragraphs 104 and 105 below) and the Court’s judgment in Ādamsons v.   Latvia (no. 3669/03, § 116, 24 June 2008), as it established a system of collective rather than individual responsibility and was overbroad in that respect; (iv)   the GCA was contrary to the constitutional provisions guaranteeing the principles of individual liability and the presumption of innocence (see paragraph 71 below). 50 .     On 12 May 2015 the Ivano-Frankivsk Circuit Administrative Court rejected the fourth applicant’s claim. It held that, due to the position he had occupied, he had been required to file a GCA declaration. Despite his being on sick leave, he had been informed of that duty. The GCA was lex specialis in relation to the Labour Code invoked by the fourth applicant and did not contain any restrictions on dismissal during a period of sick leave. As to the fourth applicant’s references to the Constitution, there had been no decision taken by the Constitutional Court declaring the GCA unconstitutional. 51.     In appeals lodged subsequently the fourth applicant repeated essentially the same arguments. He also added that, even though the GCA had not been declared unconstitutional, it had to be applied in line with the constitutional principles of individual liability and the presumption of innocence. 52 .     In September 2015 and on 24 January 2018 respectively the Lviv Administrative Court of Appeal and the Supreme Court upheld the first ‑ instance court’s judgment, largely endorsing its reasoning. The fifth applicant 53 .     The fifth applicant lodged a claim with the administrative courts seeking reinstatement. He argued, inter alia , that the GCA’s application to him had been contrary to the principles endorsed in the PACE Resolution, particularly in terms of the need for individual, rather than collective, guilt to be taken into account, the presumption of innocence and procedural safeguards, and to the constitutional principles guaranteeing equality, individual legal liability, the right to work and the right of equal access to the civil service (see paragraphs 71 and 104 below). He also argued that his dismissal had been contrary to the Labour Code, because he had been on leave at the time. 54.     On 7 February 2018 the Donetsk Circuit Administrative Court dismissed the claim. It reasoned that, since he had not contested that the GCA provision on former Communist Party officials applied to him and since there had been no decision taken by the Constitutional Court declaring the provisions of the GCA unconstitutional, there were no grounds to hold the dismissal unlawful. The court also rejected the fifth applicant’s argument that his dismissal was unlawful because he had been on leave at the time. 55.     The fifth applicant appealed. In addition to his previous arguments, he also referred to the interim opinion of the Venice Commission on the GCA (see § 32 in paragraph 107 below), which stated that party affiliation, political and ideological reasons should not be used as grounds for lustration measures, and its final opinion on the GCA (see §§ 69 and 70 in paragraph   108 below) expressing doubts as to whether lustration of individuals associated with the Communist regime was justified given the passage of time since the fall of that regime. He also argued that his dismissal had contradicted a provision of the PACE Guidelines, which provided that no person would be “subject to lustration solely for association with, or activities for, any organisation that was legal at the time of such association or activities” (see item “i” in paragraph 105 below) and pointed to the Venice Commission’s interim opinion on the GCA (see §§ 63 and 64 in paragraph 107 below), which stated that the GCA contradicted that principle. 56.     According to the fifth applicant, the Court’s judgment in Ādamsons (cited above) established the principle that an applicant’s personal conduct had to be taken into account in order for the lustration measure to comply with the Convention. This had not been done in his case. Relying on the Court’s decision in Matyjek (cited above), he argued that the GCA measures amounted to criminal prosecution within the meaning of the Convention but his actions had been “criminalised” with retroactive effect, which contradicted notably the constitutional principle of the non-retroactivity of laws. Moreover, he had not enjoyed the requisite “criminal”-level procedural rights in the lustration procedure. 57 .     In a final decision delivered on 25 April 2018 the Donetsk Administrative Court of Appeal upheld the first-instance court’s judgment, endorsing its reasoning. It also pointed out that there had been no judgment issued by the Court finding a violation in respect of the GCA measures, and that references to ECHR case-law in respect of other countries were not directly relevant as the factual circumstances in those cases were different. The Venice Commission’s opinions were not binding. 58.     The courts noted that since at the material time there had been no decision taken by the Constitutional Court finding the GCA unconstitutional, its provisions were in force and had been lawfully applied to the applicant. 59.     On 30 May 2018 a three-judge panel of the Supreme Court declared the fifth applicant’s appeal on points of law inadmissible, as an appeal could not be lodged in cases concerning dismissals from the civil service, unless the cases were of particular interest, which the fifth applicant’s case was not. Proceedings before the Constitutional Court 60.     On 17 November 2014 the Supreme Court lodged an application for a constitutional review of the provisions of the GCA concerning members of the High Council of Justice, High Judicial Qualifications Commission, top officials of the State Judicial Administration, judges who had taken part in the proceedings against “EuroMaidan” protesters, and individuals designated as “political prisoners” (sections 3(1)(6), 3(2)(2) and (13) and   3(3) of the GCA, see paragraphs 73 and 75 (i) and (ii) below). The Supreme Court argued that the provisions in question were contrary to certain provisions of the Constitution, notably those guaranteeing the rule of law, individual liability and the independence of judges (see paragraph   71 below). 61.     On 20 January 2015 forty-seven members of parliament lodged an application for a constitutional review of the provisions of the GCA providing for dismissal and a ban on accessing the civil service based on the fact that an individual had occupied certain positions at a certain point in time, except where such bans were imposed following a judicial decision establishing individual wrongdoing (section 1(3) and (6) and section 3(1) to   (4) and (8) of the Act). They argued that the relevant provisions were contrary, in particular, to the constitutional principles of the rule of law, including legal certainty and legality, equality, the right of access to the civil service, the right to work, the right to respect for human dignity, the presumption of innocence, individual liability, the non-retroactivity of laws (see paragraph 71 below). The gist of their argument was that the Act essentially held the official subject to it liable for certain actions which were not illegal when they were committed, on the basis of a collective rather than individual assessment of their guilt, without due process. In support of those arguments the MPs referred, inter alia , to: (i)   the principles of lustration endorsed by the PACE Resolution (see paragraph 104 below); (ii)   the Court’s case-law, notably Matyjek and Ādamsons (both cited above); and (iii)   the interim opinion of the Venice Commission on the GCA (see paragraph 107 below). 62 .     The Supreme Court and the MPs asked the Constitutional Court to consider their applications urgently and examine them within a month, as required by the Constitutional Court Act (see paragraph 80 below). 63 .     On 16 March 2015 the Supreme Court lodged another application for a constitutional review of the provisions of the GCA providing for dismissal and application of a ten-year ban on access to the civil service in respect of law enforcement and local State administration officials who had occupied positions in the one-year period or the “EuroMaidan” period (section   1(3), section 3(1)(7) to (9) and section 3(2)(4) of the GCA, see paragraphs 73 and   74 below). The Supreme Court asked the Constitutional Court to examine whether the provisions in question complied with the constitutional principles guaranteeing, in particular, the right of access to the civil service, the non-retroactivity of laws, individual liability and the presumption of innocence. The Supreme Court stated that it was submitting this question to the Constitutional Court at the initiative of the lower courts, including the Kyiv Circuit Administrative Court and the High Administrative Court, in 133   cases. 64.     The panels of the Constitutional Court issued rulings opening constitutional review proceedings in respect of the above applications on 12   February, 18 and 31 March 2015 respectively and joined them on 1   April 2015. 65.     On 25 December 2015 the Supreme Court lodged a third application asking the Constitutional Court to review whether the provision of the GCA providing for dismissal and a ten-year ban on officials who failed to file a declaration as required by the Act complied with the constitutional principles guaranteeing the right of access to the civil service, individual liability and the presumption of innocence. 66 .     On 10 February 2016 a Constitutional Court panel opened proceedings in respect of the Supreme Court’s third application. 67 .     On 22 March 2016 the Constitutional Court held a public hearing in the case. At the close of the hearing the court began deliberations. [2] 68 .     On 6 July 2017 the Constitutional Court joined all cases into a single set of proceedings. 69 .     According to the information provided by the Government, the Constitutional Court, in plenary formation, deliberated on the case in camera on 6 April, 2 and 10 June, 5 July, 27 October 2016, 31 January, 21   April, 6 July and 6 September 2017, 31 January and 28 November 2018 and 14 May 2019. [3] 70.     The proceedings before the Constitutional Court are currently pending. RELEVANT DOMESTIC LAW AND PRACTICE Constitution 71.     The Constitution of Ukraine of 1996 establishes the following: (i)   the rule of law, including the superiority of the Constitution over ordinary legislation (Article 8); (ii)   the non-diminution of rights, according to which “the content and scope of existing rights and freedoms shall not be diminished when new laws are enacted or existing laws are amended” (Article 22); (iii)   equality regardless of race, skin colour, political, religious and other beliefs, sex, ethnic and social origin, property status, place of residence, language or other characteristics (Article 24); (iv)   the right of everyone to respect for his or her dignity (Article   28); (v)   the right of equal access of citizens to the civil service (Article   38); (vi)   the right to work, “including the possibility to earn one’s living from employment that he or she freely chooses or to which he or she freely agrees, and protection from unlawful dismissal” (Article 43); (vii)   the non-retroactivity of laws, except in cases where they mitigate or annul the liability of a person (Article 58); (viii)   individual (rather than collective) liability, worded as follows: “the legal liability of a person is of an individual nature” (Article 61). The same provision also provides for the non bis in idem principle: “No one shall bear the same type of legal liability twice for the same offence.”; (ix)   the presumption of innocence, in the sense that “a person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty” (Article 62); (x)   restrictions on constitutional rights can only be introduced in the cases specified in the Constitution (Article 64); (xi)   the independence of judges, who can be removed only on the grounds explicitly defined in the Constitution, such as expiry of term of office, inability to carry out functions for health reasons, and so forth (Article 126); (xii)   the incompatibility of judicial office with certain activities, defined in Article 127 of the Constitution, which provides that: “professional judges shall not belong to political parties and trade unions, take part in any political activity, hold a representative mandate, occupy any other paid positions, perform other remunerated work except scholarly, teaching and creative activity.” Government Cleansing (Lustration) Act of 2014 (“GCA”) Definitions and principles 72 .     Section 1 of the GCA defines the Act’s objectives and principles as follows: “1.     Government cleansing (lustration) is a ban imposed by this Act or a court judgment on particular individuals taking certain positions (serving) in central and local government authorities (except for elective positions). 2.     Government cleansing (lustration) aims at keeping away from public governance persons who made decisions, took action or inaction (and/or contributed to their taking) facilitating the usurpation of power by the President of Ukraine Viktor Yanukovych and seeking to undermine the foundations of national security and defence or violate human rights and freedoms. It is based on the following principles: the rule of law and lawfulness; openness, transparency and public accessibility; the presumption of innocence; individual liability; and the guarantee of the right to defence.” Categories of individuals subject to restrictive measures: the one-year rule and the “EuroMaidan” period rule 73 .     The Act provides for the dismissal of certain categories of individuals from their positions in the civil service. These include individuals who (a) for at least a year in the period from 25 February 2010 to 22 February 2014 (“the one-year period”) or (b) for any period of time from 21 November 2013 to 22 February 2014 (the “EuroMaidan period”) occupied the following positions: (i)   heads and deputy heads of central departments or of regional offices of certain law enforcement agencies: the prosecution service, Security Service, External Intelligence Service, Ministry of the Interior (police) and government agencies in charge of tax, the tax police and customs; (ii)   heads and deputy heads of regional State administrations, heads of district-level State administrations; (iii)   members of the High Council of Justice, the High Judicial Qualifications Commission, the head and deputy heads of the State Judicial Administration; (iv)   the President, Prime Minister, members of the government and heads of central executive agencies; (v)   the secretary and deputy secretary of the National Security Council, presidential administration and the government secretariat; (vi)   chiefs of staff of the armed forces and their deputies; (vii)   members of the independent regulatory commissions for natural monopolies, telecommunications, securities and financial services; and (viii)   directors of certain State-owned companies in the defence sector and those providing administrative services on behalf of government agencies ( підприємств оборонно-промислового комплексу, а також державних підприємств, що належать до сфери управління суб’єкта надання адміністративних послуг ) (sections 1(3), 3(1) and (2) of the GCA). Ten-year and five-year bans 74 .     A person dismissed from any of the above-mentioned positions for the above-mentioned reasons would then be banned for ten years from the Act coming into force, that is, until 16 October 2024, from occupying positions in the civil service or local government ( посадових та службових осіб органів державної влади, органів місцевого самоврядування ) and directors of State-owned companies working in the defence sector or those providing administrative services on behalf of government agencies (section 2 and section 1(3) of the GCA) (“ten-year ban”). 75 .     The Act also provides for the dismissal and exclusion from public positions of certain other categories of officials. For some categories, the grounds for application of the Act need to be established by a judicial decision, based on the official’s individual actions rather than on him or her occupying certain positions. For those categories, the ban is for five years, to be counted from the moment the relevant judicial decision becomes final (“five-year ban”): (i)   law enforcement officers, prosecutors and judges who took part in the proceedings against “EuroMaidan” protesters if those protesters were later amnestied by the Laws of 29 January and 21 February 2014 (section   3(2)(9) to (13) and section 1(3)) – ten-year ban; (ii)   law enforcement officers, prosecutors and judges who took part in the proceedings against forty-two individuals specifically designated by name as “political prisoners” and amnestied by the Law of 27 February 2014 (section 3(3) and section 1(4)) – five-year ban; (iii)   former senior officials of the Communist Party of the Soviet Union or its branch for the Ukrainian Soviet Socialist Republic (“Ukrainian SSR”) at district secretary level and up; former senior officials of the Communist Youth Movement ( комсомол ) for the Ukrainian SSR at central committee secretary level and up; employees or secret agents of the KGB, military intelligence of the Soviet Union (GRU) and graduates of KGB training facilities (except for those employed by them in technical occupations) (section   3(4))   – ten-year ban; (iv)   any State or local government officials who, having occu