Ukrainian Democracy Declines as Tymoshenko Plight Drags On

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This week marks the second anniversary of the arrest of former Ukrainian prime minister Yuliya Tymoshenko. A polarizing personality, Tymoshenko was a key leader of the forces that took power after challenging the results of deeply flawed 2004 elections in what became known as the Orange Revolution. In the 2010 presidential election, she was narrowly defeated by Viktor Yanukovych, leader of the Party of Regions, whose earlier presidential bid had been thwarted by the Orange protests.

Many of the democratic gains registered during the Orange period have been weakened or reversed under Yanukovych’s rule. The most widely condemned of the authorities’ various questionable actions since 2010 has been the prosecution of a number of high-ranking members of the Orange government, with Tymoshenko front and center. She is currently serving a seven-year prison sentence for abuse of power related to her actions as prime minister. Two other cases have been launched against her, including one involving a murder charge.

The prosecution of the leading figure in the political opposition has done serious damage to Ukraine’s international reputation. The United States and European governments regard the Tymoshenko affair as a case of selective justice engineered by a president who bore a grudge against the Orange leadership. European Union officials have cited the case as a major stumbling block in their negotiations on an association agreement that would bring Ukraine closer to potential EU membership.

The broader deterioration of Ukraine’s democratic institutions under Yanukovych is reflected in  the country’s significant declines in Freedom House indices. The table below shows Ukraine’s scores for 2009 and 2012 in three reports: Freedom in the World, Freedom of the Press, and Nations in Transit.

 

Report

2009

2012

Freedom in the World

Total Aggregate Score (100 = best, 0 = worst)

73

57

Freedom of the Press

Total Score (0 = best, 100 = worst)

53

60

Nations in Transit

Democracy Score (1 = best, 7 = worst)

4.39

4.86



Below are excerpts from the most recent report on the state of Ukrainian democracy from Nations in Transit.

National Democratic Governance. Yanukovych has rearranged the structures of national governance, putting an emphasis on personal connections and the predominance of the executive over the legislature and judiciary. His close entourage, known as the Family (with the president’s son, Oleksandr, playing a key role), occupies important positions in the government, which dramatically strengthens its position in the economy and politics. At the same time, the role of wealthy business magnates, known as oligarchs, and Yanukovych’s older allies from the Donetsk region has been decreasing. The politically motivated criminal case against Tymoshenko, an obviously biased judiciary, and other evidence of a broadly antidemocratic trend have damaged Yanukovych’s relations with the United States and Europe, preventing the conclusion of a far-reaching Association Agreement with the European Union (EU) that would have included a reduction in trade barriers. Despite the shift toward authoritarian rule since 2010, a variety of political actors are represented at the national level. In May 2012, Yanukovych issued a decree establishing a Constitutional Assembly tasked with developing comprehensive constitutional reforms. However, a law on referendums that was adopted in November may become a tool of manipulation, as it contains a provision allowing changes to or even annulment of the constitution without the approval of the parliament. The president could use it to bypass the two-thirds parliamentary majority normally required for constitutional amendments, potentially altering the conditions for his reelection in 2015.

Electoral Process. The parliamentary elections held on 28 October were widely recognized as a step backward from previously achieved democratic standards. An election law adopted a year before the vote introduced a mixed proportional/majoritarian voting system that favored the ruling Party of Regions, allowing it and its coalition allies to sustain a slim majority even though most of electorate did not vote for it. Party of Regions candidates in majoritarian districts benefited from administrative resources, contributing to international monitors’ conclusion that the elections were characterized by “the lack of a level playing field.” Other problems included a lack of transparency in party financing and the tabulation process. The imprisonment of Tymoshenko and a key ally, former interior minister Yuriy Lutsenko, barred them from running in the elections. Due to numerous irregularities detected during the parliamentary election process and the exclusion of central opposition figures,

Civil Society. Civil society engages in a variety of activities and continues to play a crucial role in defending democratic values and practices. In particular, NGOs in 2012 participated in election monitoring and successfully blocked a proposed defamation law in October. Substantial progress has been achieved with regard to providing a supportive legal framework for nonprofit activity. The new Law on Civic Associations, adopted in March, emerged as a rare example of productive cooperation between the government and the NGO sector. The law, set to take full effect on 1 January 2013, liberalized the registration process for new organizations and removed some administrative barriers. However, consultations between NGOs and the government are often formal in nature and lack real impact. Civil society actors in many cases have been ignored when politically sensitive issues are at stake.

Independent Media. Ukraine has a diverse and competitive media market, and media freedoms are guaranteed by relevant legislation. However, the political environment is not conducive to full-fledged media freedom. Biased coverage in favor of the government continued at some television channels in 2012, and self-censorship remained a visible phenomenon. TVi, a station that carries criticism of the government, faced a tax investigation and reported pressure on cable companies to remove it from their offerings. During the parliamentary election campaign, most of the national television channels signed a memorandum to ensure fair and balanced political coverage, and some stations showed significant improvements. Meanwhile, signs of administrative pressure were evident at the regional level, where media watchdogs warned of physical attacks against journalists. Freedom of expression advocates and journalists successfully prevented the adoption of the proposed defamation law on the eve of the parliamentary elections.

Judicial Framework and Independence. The country’s justice system has been undermined by political influence and repeated attempts to alter the constitution. A new Code of Criminal Procedure came into force in November 2012. It was based on the input of experts from the Council of Europe and passed under pressure from the international community, though Ukrainian experts were more ambiguous in their assessments of the law. The cases against Tymoshenko and Lutsenko continued to draw criticism from international observers for their apparent political motivation and related violations of due process. In addition to her 2011 sentence of seven years in prison for abuse of power, Tymoshenko faced additional charges, including claims that she organized the assassination of a member of parliament in 1996.

Corruption. International and Ukrainian experts see corruption as “the greatest threat to Ukraine’s democracy and sovereignty.” The National Anticorruption Committee, established in 2011 under the supervision of the president, did not meet during 2012. Yanukovych signed a new law on public procurements in August, but it was strongly criticized for exempting an extensive number of enterprises, products, and services from provisions designed to enhance transparency. Corruption scandals marred the preparation and conduct of the European football championship, hosted jointly by Ukraine and Poland in June.

Outlook. Consolidation of personal control by the president’s close entourage may lead to a further deterioration of fundamental freedoms, though the political diversity illustrated by the October 2012 elections will obstruct the obvious authoritarian trend to some extent. The government and ruling party will seek other means to ensure their continuity in power, including misuse of the court system and law enforcement agencies. The referendum law may be used by president or his allies to bypass the parliament on key foreign and internal policy decisions. Economic and budgetary challenges could undermine the current government’s stability. The signing of a comprehensive Association Agreement with the EU, due in November 2013, is threatened by the government’s lack of political will to achieve criteria set by the bloc in December 2012. Ukraine may be forced to accept Russian financial assistance with important conditions attached, for example joining the Russian-led Customs Union or giving Russia’s state-owned Gazprom control over the Ukrainian gas transit system.

In the judicial area, the government will work on amendments to the law on the functioning of the prosecutor’s office, the criminal code, and the laws on the judicial system and the status of judges. A reconsideration of the role of the High Council of Justice and a reform of the police are also likely. The problem of corruption will probably not improve, as political will is still lacking.

Photo Credit: EPP Congress Bonn

Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.

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