Commentary

Halya Coynash

June 13, 2019

        Ukrainian President Volodymyr Zelensky has replaced the Deputy Justice Minister Serhiy Petukhov as head of an official delegation after the latter publicly insisted that the man chosen to head the President’s Administration is prohibited by law from holding public office.  The decree (№400/2019) on the President’s site gives no explanation as to why Petukhov has been replaced as head of Ukraine’s delegation to the 22nd Diplomatic Session of the Hague Conference on Private International Law less than a month after being appointed.  There may, of course, be some other reason, however it is Petukhov, admittedly in his capacity as Deputy Justice Minister on Issues of European Integration, who has very publicly rejected attempts by the Zelensky team to deny that Andriy Bohdan falls under the scope of the Law on Lustration and initiated a ‘lustration check’.

        There was concern from the outset over Bohdan’s appointment as Head of the Presidential Administration in part because of his role most recently as lawyer to oligarch Ihor Kolomoisky.  The main concern is, however, strictly legal.  The 42-year-old lawyer twice served as government representative on ‘anti-corruption policy’ during the presidency of Viktor Yanukovych.  He was first appointed to that post, and also as ‘Deputy Minister of the Cabinet of Ministers’ immediately after the legally dubious seizure of control of government by the Party of the Regions following Yanukovych came to power.  After reappointment in July 2013, he held the post until after Yanukovych and his people fled to Russia.

        It was these official posts which meant that he was prohibited under the 2014 Law on Cleaning up Gov

ernment (the lustration law) from holding public office for 10 years.  In an interview on May 21, Bohdan claimed that the post of head of the President’s Administration is not part of the civil service and that he is therefore not prohibited from holding the post.  He also asserted that he had fallen under the force of the lustration law “unfairly”.  He claimed that this was because he had uncovered corrupt dealings by which billions in public funding were being syphoned off and that the person behind the corrupt arrangement was one of the authors of the law on lustration.  He did not, however, provide a name to back this accusation.  Others close to Zelensky have also asserted that the law does not cover the post of Head of the Administration.

        This is, in fact, absurd since Article 2.5 of the Law begins with the post of Head of the Presidential Administration.

        Among those who have stated clearly that Bohdan falls under the law on lustration is Tetyana Kozachenko, who was head of the Department on Lustration within the Justice Ministry and who was effectively one of the co-authors of the 2014 law.

        The most prominent official is, undoubtedly, Petukhov.  On May 22, 2019, he posted a letter on Facebook and brief explanation that states clearly how the post of Head of the President’s Administration falls within the scope of the Lustration Law.         The letter addressed to the President’s Administration not only provides an explanation of the law’s force, but also asks to see the work record book of Bohdan and other new members of staff.  In the covering post, he states that should the requirements of the law on lustration not be met, “the final decision must be taken by the court, and we do not exclude such an option.”

        In a separate commentary, Petukhov noted that “if somebody regards the lustration law as unfair, that does not free them from having to comply with it. Lustration was one of the first demands of the Revolution of Dignity and the Justice Ministry has done everything to properly implement the law passed”.

Almost a month later, Bohdan remains in his post, with the Supreme Court having found a very strange argument for refusing to consider a legal challenge. The President appears to be hoping that the Constitutional Court will find the lustration law unconstitutional.  This, in turn, could be a major problem.  Not only will it appear strange if this happens, given that the relevant submission challenging the law was made back in 2014, but there will also be a question that remains without satisfactory answer as to why Bohdan had an effectively secret meeting with the then head of the Constitutional Court, Stanislav Shevchuk, on the eve of the second round of the presidential elections.