Countries at the Crossroads 2004 - Ukraine

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Executive Summary

Author

Natalie Mychajlyszyn is an associate member of the Chair of Ukrainian Studies at the University of Ottawa. Her areas of specialization include international norms and institutions, security in the former Soviet region, ethnic conflict, and civil-military relations, with a concentration on Ukraine.

Events of 2003 suggest that Ukraine is on a trajectory away from genuine democracy. While this trajectory is not yet irreversible, the country is close to consolidating a political system that serves the narrow interests of a small, oligarchic group that shares authoritarian political ideas and common economic interests. In each of four areas vital to democratic governance – respect for civil liberties, rule of law, anticorruption and transparency, and accountability and public voice – Ukraine's commitments and de jure obligations have not been matched by practice. Glaring gaps in the field of civil liberties include the persistent failure to prosecute law enforcement officers who engage in torture, the massive problem of trafficking of women, harassment of the Roma and minorities from the Caucasus, poor integration of civic organizations in the political process, and ineffective responses to and protection against killings (including the unsolved case of journalist Heorhiy Gongadze) of and physical attacks on political opponents and critics of the government. Key failings in the rule of law include executive-branch control and influence over the judicial system, the use of the judicial system for political purposes, favoritism toward allies of the president and high government officials, and the imbalance of power in the court favoring the prosecutor over the defense attorney. At the same time, there has been some improvement in civil-military relations.

In the area of corruption, government action is characterized by inconsistency and lack of integrity in the pursuit of serious charges of high-level corruption. Finally, as 2003 drew to a close serious concern emerged regarding the possibility of rotation of power in Ukraine, arising from President Leonid Kuchma's proposals to transform Ukraine's presidential-parliamentary system into a parliamentary system that some analysts believed was an effort to preserve his power. Of equal concern is the state of freedom of the media in Ukraine. The government and its allies exercise almost total control of national broadcast media. Journalists and media outlets that pursue stories on official corruption and illicit relationships among the government, criminal groups, and business interests face severe intimidation. Some investigative reporters have been found murdered. As significantly, the issuing of temnyky, or instructions from the presidential administration on how to report stories, has reinforced an already oppressive climate for objective and independent journalism.

The result has been a self-perpetuating cycle: Without true freedom of the press and strong rule of law, Ukraine lacks the state and private mechanisms that would enable it to deal effectively with chronic corruption. The weak record of respect for the rule of law erodes Ukraine's ability to uphold civil and political rights as well as freedom of the press. Indeed, so entrenched is this cycle that even when government officials are sincere in their efforts to correct shortcomings, they face obstruction from superiors, who protect the interests of business cronies and corrupt officials. This cycle needs to be broken in small steps. Some recommendations to this end include: increasing the level of pay throughout the civil service; improving the quality and effectiveness of training among law enforcement officials and the judiciary; rigorously prosecuting all those who violate the law and human rights; increasing funding to the judiciary and law enforcement in order to allow them to establish and implement the necessary programs to translate statements of commitment into practice; improving civic associations' access to the policy-making process; ensuring that the legislature has independent resources and powers to pursue its own investigations; and clarifying, simplifying, and enforcing the registration procedures and regulatory environment affecting the media, civic organizations, and businesses.

Two obstacles in particular stand in the way of democratic progress. First, Ukraine's budgetary resources are wanting. Part of the problem is certainly the state's inability to collect the revenue owed from taxes due to widespread tax evasion and the significant shadow economy, which is reinforced, not surprisingly, by corruption and further tax evasion (and by state-sanctioned tax avoidance that is granted to influential insider political groups). Steps to depoliticize the tax administration and increase its professionalism, as well as tax simplification, can over time facilitate the collection of these tax revenues, thus improving Ukraine's ability to address a broad range of problems. Second, there is a need to reexamine immunity from prosecution for parliamentarians, members of the government, and the president as this provides a convenient and desirable shield behind which some carry out their illicit behavior and protect their allies.

As long as Ukraine fails to implement democratic practices and the rule of law, its membership in the community of democratic states, integration into European and international institutions, and the benefits that these entail will be delayed. As yet, the situation is not irreversible. However, recent efforts by President Kuchma to amend the constitutional and political system to his personal benefit may have the most profound and widespread consequences for Ukraine's future. Ukraine is on the verge of losing even the most rudimentary characteristics of democracy and is in danger of becoming an authoritarian political system serving the interests of a small, privileged class.

Civil Liberties – 3.85

Ukraine has a broad range of de jure protections. The constitution and laws of Ukraine prohibit arbitrary arrest, detention without trial, and torture. In addition, Ukraine has signed and ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, under which it is obligated to investigate allegations of torture and apply appropriate penalties.

However, law enforcement officials continue to use torture against prisoners and detainees, who are frequently beaten in order to force confessions that are used against them in court.¹ Allegations of torture are not systematically or consistently investigated.² Detainees are frequently interrogated without the benefit of defense counsel. Persons are regularly held in detention for up to three years before trial, in violation of the law, which only stipulates detention for up to 18 months – itself a low threshold. Physical attacks against the government's political opponents, including politicians and journalists, continue, and past assassinations of government opponents remain unsolved. In addition, the tax administration and police pressure companies owned by and supportive of opposition politicians. Since the office was first established in 1998, the ombudsperson for human rights has lacked the funding and support necessary to play an effective role in improving the human rights situation in Ukraine.³

One note of promise is the completion of a training manual on torture prevention for use by law-enforcement personnel and human rights nongovernmental organizations (NGOs) in Ukraine that provides information on how to comply with international legal obligations for the prevention of torture.⁴

Public demonstrations at times take place without government interference. However, during the September 2002 nationwide anti-government demonstrations that drew upwards of 15,000 people in Kyiv and tens of thousands of others across the country, several thousand riot police armed with shields and rubber truncheons used force to dismantle a tent camp near the presidential administration offices in Kyiv, beat protesters, and arrested more than 50 of them, sentencing them to 15 days in detention.⁵ In another instance, the leader of the opposition right-wing party, UNA-UNSO, was detained on charges of hooliganism in June 2003 to prevent him from attending a congress of his party in Kyiv; he was subsequently acquitted of the charges.⁶

In cases being brought against organized criminal groups, victims and witnesses are frequently intimidated into dropping the charges or changing their testimony. Legislation concerning the establishment of a police unit specializing in protecting victims and witnesses and their families has yet to be implemented, in part due to lack of funding.⁷

Gender discrimination is prohibited under the constitution. In practice, however, government officials do not consider matters pertaining to gender equity to be a priority.⁸ In some settings, gender remains a basis for discrimination in employment. While mechanisms exist by which women can seek redress in the event of employment discrimination, few have been effective.⁹

Ukraine remained in the second tier of the U.S. Department of State's 2003 Report on the Trafficking of Persons, indicating that Ukraine is a country whose government does not fully comply with the minimum standards of the Trafficking Victims Protection Act but is making significant efforts to bring itself into compliance with those standards. A free national telephone hotline was launched to provide information and support to victims of trafficking as well as for persons planning to travel abroad. Nonetheless, the problem remains urgent.¹⁰

There are regular reports of people with dark skin and/or from the Caucasus being subjected to arbitrary and identity checks and unlawful detention. Information on the ethnic/racial affiliation of Roma and Crimean Tatars is collected by law enforcement officials.¹¹ Roma continue to suffer from discrimination and are regularly deprived of opportunities to participate fully in cultural, social, and economic life and in public affairs. Those responsible for such discrimination and harassment are not held accountable, and complaints about mistreatment by police are rarely investigated.¹² At the same time, approximately 260,000 Crimean Tatars have been repatriated and 98 percent have obtained Ukrainian citizenship; however, weak state support for resettlement and for cultural and educational institutions is regularly criticized.¹³ Crimean Tatars are represented in national and Crimean legislative structures, but their presence in the Crimean parliament is disproportionately low given the size of their population.

The Ukrainian parliament ratified the European Charter for Regional or Minority Languages in May 2003. However, the charter's application in Ukraine continues to be criticized for favoring non-Ukrainian languages – i.e. Russian – at the expense of Ukrainian. While there has been a noted improvement in the availability of textbooks in such minority languages as Romanian and Hungarian, the Crimean Tatars continue to face difficulties in acquiring textbooks in their language.¹⁴

Nontraditional and non-Christian religions continue to suffer some harassment and discrimination, particularly with regard to delays in their registration status and obtaining property.¹⁵ Ukraine has a notable record of state protection for the rights of the country's substantial Jewish minority, and anti-Semitic acts of vandalism are generally investigated with diligence. Vandalism of synagogues in Kyiv, Lviv, Lutsk, and Mykolayiv have occurred, but in some cases those responsible were punished under Ukraine's criminal code.¹⁶ The government generally refrains from action against the media when anti-Semitic or xenophobic language is used.¹⁷ Reports continue of Protestant and Catholic clergy being followed by internal security officials and having their correspondence opened and telephones tapped.¹⁸ Religious institutions and religiously affiliated universities operate without any known state interference or harassment.¹⁹

Article 36 of the Ukrainian constitution guarantees the right of freedom of association, which is further protected by the Law on Political Parties and the Election Law. However, the government record in practice is mixed. The government has taken advantage of ambiguous registration regulations for civic organizations and political parties to undermine the activities of some opposition groups, and unregistered political organizations are frequently subjected illegally to exorbitant fines.²⁰ The onerous registration process may take up to six to eight months and involves several government agencies, with each agency following its own registration procedures. Some political groups have been subject to harassment and surveillance by government authorities, including visits by tax authorities and criminal investigations.²¹

Many independent unions choose not to register. While rejection of a trade union's application is at the discretion of the ministry of justice, there were no reports that union registration has been denied. Some independent trade unions have found it difficult to function without official registration. In other cases, some workers are discouraged by government and management from organizing independent trade unions. Independent trade unions frequently complain of government pressure on their members to vote in a particular way and to report to authorities regarding union activities, in addition to being subjected to surveillance and harassment by law-enforcement officers.²² The chairman of Ukraine's largest labor federation was subjected to extreme pressure, apparently mobilized by the presidential administration, which forced his withdrawal from the ranks of the opposition Our Ukraine parliamentary group.

Recommendations

Government officials and law-enforcement personnel require more effective and higher-quality training and education in civil liberties. Laws must also be enforced consistently (not selectively), and those responsible for violating these rights must be prosecuted and punished. The parliament and its investigative/monitoring functions must be expanded and resources given to parliamentary committees to investigate and monitor wrongdoing, corruption, and violations of the law in both the government and the police/militia structures. A witness-protection program must be implemented, and funding and support increased to the ombudsperson's office. Redress mechanisms must be strengthened and properly applied. Ukraine should ratify the UN Convention Against Transnational Organized Crime, including the Protocol to Prevent, Suppress, and Punish the Trafficking of Persons. The registration process for civic groups must be simplified and clarified. The government should issue an annual report – through its ombudsperson's office – on hate crimes and hate speech with a section addressing responses by authorities to these rights violations.

Rule of Law – 3.32

The presidential administration asserts significant control and pressure over the court system, from the appointment and dismissal of judges sympathetic to its interests, to contacting judges directly to influence cases before the courts, to assigning politically sensitive cases to judges known to be sympathetic to the government. In some cases, judges are accused of criminal behavior if they do not support the government's interests.²³

The allocation of funds to the court system is insufficient for it to function effectively and makes the courts vulnerable to corruption and dependent on the whims of the executive branch. Court officials are often bribed by the accused and their families in return for charges being dropped or sentences lessened or commuted.²⁴ The training of judges improved somewhat with passage of the 2002 Law on the Judicial System of Ukraine, which established a judicial academy for new judges and continuing education of sitting judges.²⁵

Progress on politically sensitive cases involving government opponents and journalists who have investigated the government in corruption activities is slow, and in most instances these cases remain unsolved. Among the most prominent cases is the 2000 murder of journalist Heorhiy Gongadze: the investigation has been stymied in an effort to deflect attention from higher level officials, including President Kuchma, who was implicated in the murder with tapes of the president's private conversations released by his former guard, Major Mykola Melnychenko. The government dismissed these tapes as fake, maintaining they had been produced and planted by opposition groups with the aim of discrediting the president.²⁶ In addition, Melnychenko was charged with divulging state secrets.²⁷ It was not until September 2003 that the prosecutor general announced that arrest warrants had been issued and the persons suspected of killing Gongadze were being sought.²⁸ Suspicion is widespread that ongoing investigations will not diligently scrutinize implicated high-level officials. There is a further fear that additional witnesses may be killed.

Enforcement of and compliance with court decisions remains a problem, particularly in civic matters. One source puts the 2002 rate of compliance at less than 50 percent,²⁹ while another source postulates an even lower rate of 25 percent.³⁰

Primacy of the rule of law in Ukraine is called into question when legal procedures and the courts are regularly used to protect government interests, such as when government officials are not prosecuted for criminal activities or for intimidation of political opponents. For example, in the case of an alleged illegal October 2002 sale of a Kolchuga radar to Saddam Hussein's Iraq – in which the Melnychenko tapes (sections of which were authenticated by U.S. government forensic investigations) implicated President Kuchma – the prosecutor-general claimed there was no evidence supporting the president's involvement, and a proceeding opened against him closed soon after.³¹

Criminal and tax investigations are frequently carried out against antigovernment politicians, journalists, and influential businesspeople in an effort to protect government and business interests, which at times intersect. Among the highest-profile cases is the ongoing litigation around opposition politician, parliamentarian, and former deputy prime minister Yulia Tymoshenko, who has faced numerous charges of bribery, fraud, and tax evasion. In spring 2003, after charges against Tymoshenko, her husband, and some of her business associates were thrown out of court, the verdict was overturned by the prosecutor-general's office on the grounds that the supporting evidence was forged; this action was later supported by the Ukrainian Supreme Court (whose members are appointed by the president) in July 2003.³² The investigation against Tymoshenko continues.³³

Unusually high conviction rates have changed little since the Soviet era; nearly all completed cases result in convictions, raising concerns about the quality of Ukraine's commitment to a free trial and the presumption of innocence. The situation is aggravated by prosecutors being generally more influential in the system than defense attorneys. In practice it is difficult to find lawyers who are willing to assist impoverished defendants. In some cases, judges violate the rights of defendants, including by denying them the right to legal counsel of their own choice and the right to be present at their own trial. In 2002, more than 400 rulings were issued in the absence of the defendant. Part of the problem has been that defendants are not properly informed in advance about when their cases are to be considered. Many of the legal reforms initiated in 2001 have yet to be instituted, thus impeding full-scale judicial reform.³⁴

The military, police, and internal security services are under the control of civilian officials in Ukraine. Ultimate authority rests in the hands of the president, who by law cannot be a serving military officer. The minister of internal affairs controls the police forces and, as a member of the cabinet, is subject to the civilian structure of control over the use of force in Ukraine. However, civilian control over the Ukrainian Security Service (SBU) is weak, and the agency, accountable directly to the presidential office, is not subject to the same mechanisms of civilian control and accountability.³⁵ The problem of civil-military relations in Ukraine is less the danger of the military leadership interfering in politics than of civilians interfering in military affairs for political and business interests without being properly accountable to democratic procedures.³⁶ Nonetheless, the situation improved somewhat with the June 2003 appointment of Evhen Marchuk as minister of defense, the second time since Ukraine's independence that a serving military officer has occupied the post. Whether Marchuk's appointment as a minister of defense can be considered a step toward democratic civil-military relations is open to question, as he is a former KGB general decommissioned only in the mid-1990s. Other positive developments include the introduction of legislation to improve parliamentary oversight of the armed forces and passage on June 19, 2003, of a bill that allows civilians to head the defense ministry and assume leading posts in Ukraine's armed forces.³⁷

Recommendations

Salaries of civil servants, military and security personnel, and court officials should be increased. Legislation and ethics governing the separation of the executive and parliament from the judiciary must be strengthened and enforced; those who violate these regulations must be investigated and held accountable. The quality of training of judges needs to be improved. The redress mechanism by which judges are held accountable when they violate rights of defendants must be strengthened. Funding to courts should be increased in order to accelerate the judicial process. Compliance with court decisions must be enforced and those who are in contempt must be punished. Training of defense lawyers should be improved and funding increased to assist representation of impoverished defendants. The SBU should be subject to scrutiny by a parliamentary oversight commission to ensure the agency is not politicized and its functions are not abused by the president's office.

Anticorruption and Transparency – 2.82

Ukraine continues to rank among the most corrupt countries in the world. According to Transparency International's 2003 Corruption Perception Index, Ukraine placed fifth most corrupt of the former Soviet and East European transition countries, and 106th of 133 countries. Compared with previous CPIs, Ukraine's position in fact worsened.³⁸ According to World Bank data for 2002, Ukraine's percentile rank for control of corruption was 17.5.³⁹

Regulations covering business activities in Ukraine are excessive, ambiguous, and sometimes contradictory, leaving entrepreneurs, business owners, and managers at the mercy of government officials and their inconsistent interpretations of these rules.⁴⁰ Corruption and nepotism also figure in appointments to government positions, to the benefit of business or criminal interests.⁴¹ The intersection among criminal, business, and political worlds as a feature of corruption in Ukraine is pivotal. Indeed, law-enforcement officers frequently assist organized criminal groups and permit them to function. The trafficking of women is one activity in which the relationship between law-enforcement officials and criminal groups has been implicated.⁴²

The natural gas industry in general and Naftohaz, the state-owned Ukrainian gas monopoly, in particular, continue as centers of high-level corruption and are not subject to auditing by the state accounting chamber. The operations of Naftohaz, believed to reflect the overlapping interests of business, politics, and crime, are suspected of being the source of illicit income for government officials and President Kuchma.⁴³ There is some evidence to suggest that in the past the president and the head of his tax administration sanctioned a cover-up of wrongdoing by the former head of Naftohaz. These officials have not been openly and diligently investigated.

Auditing systems are weakly established and operate ineffectively in Ukraine. Indeed, the future of the coordination committee on the battle with corruption and organized crime in the presidential administration was clouded by the resignation of its chair, Mykhaylo Potebenko, in December 2002 and his recommendation that the committee be disbanded in light of the overlapping of its activities with those of other agencies.⁴⁴ The ministry of internal affairs created a general department for fighting organized crime and the SBU also created an anticorruption unit, but these are considered to be ineffective given that they themselves are suspected of engaging in illicit activities.⁴⁵

New developments suggest a more directed effort to promote a different set of ethics to combat the problem of corruption at the government level. One example is Clean Hands, a program initiated by the ministry of internal affairs early in 2002 whose purpose is to eliminate bribery and corruption at all levels in the law enforcement sector. In a demonstration of its small successes, in its first nine months Clean Hands gave rise to 72 criminal cases concerning bribery and abuse of office in the ministry.⁴⁶ However, such initiatives are regarded by independent civic anticorruption groups as efforts to placate the West and international financial institutions.⁴⁷

The judicial code of ethics, which the Council of Judges is meant to observe in order to avoid conflicts of interest and ethical problems, does not have the force of law. Moreover, while all judges are required to obtain training in the code throughout their careers, such training programs are not widely available.⁴⁸

In general, financial disclosure requirements are minimal and poorly enforced. Public officials with substantial financial holdings regularly minimize the size of their assets and declare only a small portion. Indeed, on the parliamentary side, financial disclosure is not officially or regularly practiced. When such information is released, despite the potentially illicit relationships and numerous conflicts of interest they expose, there is no evidence of any response to correct the situation.⁴⁹ Parliamentarians are widely believed to be paid or bribed for their political affiliations and support for legislation and other votes.⁵⁰

At universities and other institutions of higher learning, nepotism and bribery are commonly practiced, particularly during entrance exams, in the allocation of grades, and in the granting of degrees. Administrators and directors frequently abuse their positions through manipulation and intimidation of colleagues by controlling their ability to publish, withholding pay or other benefits, or even dismissing them.⁵¹ Moreover, administrators and directors are known to coerce their subordinates to give kickbacks from research contracts or consultancy work.

Anticorruption legislation is generally poorly and inconsistently implemented.⁵² In late 2002, parliament passed legislation prohibiting money-laundering, which was criticized by analysts as too weak.⁵³ Although subsequent changes to the legislation strengthened its terms and prompted international sanctions imposed on Ukraine to be lifted, the country remains on the blacklist until the legislation is shown to have been implemented.⁵⁴

While corruption and bribery charges are increasingly filed, and some result in convictions,⁵⁵ doubts are raised about their legitimacy given the role played by special interests and the frequent use of corruption charges against government opponents. For instance, in summer 2003 numerous officials in the ministry of agriculture were blamed for the poor harvest results and grain shortages in Ukraine and dismissed. Among them was deputy state secretary Roman Schmidt, a supporter of opposition leader Victor Yushchenko. Schmidt and other agricultural officials were subsequently charged in separate cases with corruption and abuse of power. Meanwhile, allies of the president are not investigated despite allegations against them.⁵⁶

Law enforcement officials themselves frequently permit, and often participate in, corrupt activities. When there is a will to investigate, law enforcement lacks the necessary financial support, resources, and equipment for thorough investigations of crimes under anticorruption legislation.⁵⁷

Media coverage of corruption issues takes place at the risk of the lives of those investigating these activities.

In an attempt specifically to improve public access to government information, the Ukrainian government set up commissions of inquiry under the secretary of the national security and defense council into the Ukrainian military's shooting down of a Russian passenger plane in autumn 2001 and the July 2002 crash at an airshow in Lviv. While these commissions were criticized as having been created to deflect attention away from government neglect of the military, some analysts consider them successful because they overcame the obstruction of military officials in order to uncover the truth.⁵⁸

In budgetary matters concerning the military, there is a nearly total lack of transparency. In general, the level of transparency in the overall budget process is rather low. Part of the problem is a lack of proper parliamentary oversight. Managers of public expenditure programs are not accountable.⁵⁹

Determined but limited efforts have been made to improve the situation. In the western town of Drohobych, important decisions are now made following public meetings, where the views of townspeople are heard. Most ingeniously, 70 percent of the town's government officials are rotated regularly in order to break the links and networks that facilitate corruption.⁶⁰

Government contracts are not awarded competitively or in a transparent fashion.⁶¹ In a prominent case, a firm that submitted a bid of $10 million for a tiling contract was disqualified for not meeting the minimum bid of $30 million, and yet no minimum bid had been publicly disclosed.⁶²

International development and aid agencies, whether nationally based or international NGOs, continually structure and operate their projects so as to guard against opportunities for corruption. They confront questionable payments for registration or other procedures expected in order to conduct normal business. Some agencies report that their locally based employees are frequently interviewed and asked to provide information on the activities of foreign NGOs "in the national interest." Some NGOs and other groups that receive grants and participate in projects with international partners have been subject to tax inspection and harassment by state security officials.

Recommendations

Regulations governing business activities should be streamlined. Law enforcement officials should receive improved training and education concerning their responsibilities and clearer instruction about what activities should be considered illicit and corrupt. Salaries of public-sector officials and university professors should be increased. The grading and application processes in universities need reform, and a neutral agency in universities should be introduced that would monitor admissions. Ethical standards for professors and students are required, and those who violate them must be held accountable.

An independent extra-governmental agency that includes representatives of major political parties, including the opposition, should be set up for tackling intra-systemic corruption and organized crime.

Detailed conflict-of-interest guidelines need to be established and enforced in the executive, judicial, and legislative branches, and violators should be prosecuted. Independent ethics commissions governing members of the executive, judiciary, and parliament should be reinforced. Financial disclosure requirements for government officials and parliamentarians must be expanded and enforced, and an auditing agency should monitor the accuracy of these disclosures. The budgetary process should be made open and transparent. Naftohaz, the gas monopoly, should be subject to an independent auditing system and parliamentary scrutiny.

Accountability and Public Voice – 3.48

The March 2002 parliamentary elections were declared by international election monitors to be "closer to meeting international commitments and standards for democratic elections" regarding in particular "universality, transparency, freedom and accountability" but were also cited for failing "to guarantee a level playing field, an indispensable condition to ensure the fairness of the process."⁶³ Media coverage of the elections was singled out as problematic. Reports by various observers noted that major TV stations were biased against the opposition, thereby restricting access by voters to impartial and balanced information. A weak climate for balanced press coverage is not surprising given that news coverage of March 2002 elections was dominated by the interests of the authorities. Nonetheless, candidate access to media was judged an improvement over previous elections.⁶⁴ In mid-2003, balance in media coverage deteriorated notably amid further consolidation of control over broadcast media by the state and government allies. The functioning of temnyky (theme directives) was specifically aimed at opposition politicians so as to erode their popularity in advance of October 2004 presidential elections.

There is growing concern about fair chances for rotation of power as the 2004 presidential election looms. President Kuchma's proposals regarding political reform are self-serving efforts to undermine – if not circumvent – the election process and the will of the Ukrainian people so that he can retain power and immunity from prosecution. The most recent proposal put forward involves an amendment to the constitution that would change Ukraine into a parliamentary democracy, thus transferring presidential powers to parliament and to the prime minister. If this proposal is successful, it is possible that President Kuchma could seek the post of prime minister as the majority of current parliamentarians belong to pro-Kuchma factions.⁶⁵

The problem of accountability extends to the civil service in Ukraine. Hiring practices continue to reflect those of the former Soviet system and follow a pattern of nepotism, personal connections, and patronage.

While civic associations are not prohibited and are active in part due to significant foreign donor support and volunteerism, their impact on government policy and their engagement with government officials are weak. Onerous administrative and registration requirements often discourage civil groups from organizing. In addition, the political climate in Ukraine is arguably hostile to the activities of some civil organizations independent and critical of the government. Civic groups promoting democracy are regularly scrutinized, as are independent business associations and credit unions that are not part of the government-supported structures and whose activities challenge entrenched business and political interests.⁶⁶

A variety of privately owned newspapers and journals is available; the print media feature active debates over sensitive political questions including political reforms, corruption, and deaths of journalists.⁶⁷ Nonetheless, the threat to freedom of the press in Ukraine has taken on urgent proportions, particularly in the more influential and widely accessed broadcast media. The government regularly applies a variety of methods to control media content, including widespread intimidation of and even violence against and murder of journalists and other media personnel.⁶⁸ Opposition media outlets face harassment, including onerous tax audits, safety inspections, selective enforcement of media regulations, surveillance and telephone tapping by the SBU, criminal investigations, and defamation suits.⁶⁹ During the antigovernment demonstrations in September 2002 the media were effectively closed to the opposition and all television stations went off the air the day of the demonstrations, ostensibly for maintenance purposes.⁷⁰ The presidential administration allegedly has continued the practice begun in March 2002 of issuing to the state media as well as independent media temnyky, or thematic instructions of how stories and politicians are to be covered.⁷¹ There is a high degree of compliance with these instructions in the national broadcast media. Media outlets and journalists that do not implement temnyky or who portray what is perceived as an anti-governmental bias in their coverage are likely to find themselves facing unofficial and indirect sanctions by government authorities. There are widespread doubts about the government's commitment to implementing the April 2003 legislation that prohibits media censorship,⁷² and such concerns are not unwarranted given the passage in July 2003 of legislation that outlaws the protection of journalists' sources and allows for the detention of journalists suspected of revealing state secrets.⁷³

Self-censorship regarding political officials and politically sensitive themes such as corruption and criminal activities is widespread. In order to expose the gravity of the situation on the national level, parliament in December 2002 held public hearings on the state of press freedom in Ukraine that were broadcast live on television and received widespread media coverage.⁷⁴

The ability of the press to be independent is compromised when so much of it is either state-owned or owned by business interests that have a close association with the government. Of the six national television stations, all are now regarded as presenting a pro-presidential viewpoint.⁷⁵

The unviable financial state of many of the newspapers and some radio and television stations is a point of vulnerability used by government authorities to control the media. The government has reportedly instructed businesses to withdraw their financial support and advertising from certain media in an effort to coerce them into taking a particular political viewpoint. At the same time, with printing costs themselves very high, many newspapers depend on state-subsidized newsprint or on political patronage for access to financial assistance from the State Press Support Fund, thereby inhibiting criticism of the government and its interests.⁷⁶

In a 2002 study, Reporters Without Borders noted that 10 journalists had died under suspicious circumstances since 1998, while another 41 suffered serious injury from attacks.

In 2002, 28 incidents of physical and verbal harassment were reported against journalists, and 4 died, most likely in connection with their work.⁷⁷ Also in 2002, six journalists disappeared under suspicious circumstances, double the number in 2001.⁷⁸ In July 2003, Volodymyr Yefremov, a noted media editor involved in investigating government corruption and working with the press-freedom group Institute of Mass Information, died in a suspicious traffic accident just before he was to testify in the corruption case against former Prime Minister Pavlo Lazarenko.⁷⁹ Also in July 2003, Oleg Eltsov, editor-in-chief for the Internet site Criminal Ukraine, was severely beaten by two unidentified assailants and hospitalized with serious injuries.⁸⁰

Recommendations

Proposals for constitutional amendments, specifically those creating a parliamentary system, should undergo a thorough and independent examination and be subjected to an authentic, public, and nationwide consultation process. These amendments should not be allowed to take effect in a way that circumvents the electoral rights of citizens or benefits incumbents. Government policy on consultation with civic groups should be refashioned to strengthen links and afford civic groups access to officials and the rights to comment on policy and legislation. The registration process for media should be simplified. The independence of the media, including the state's broadcasting council, should be enhanced. Legislation to keep the government at arm's length from the media should be linked to any government funding of media, which should be supported on a nonpartisan and broad basis. An ombudsperson for freedom of the media should be introduced to guarantee and protect the rights of journalists against government interference. The issuing of temnyky (theme directives to media) must cease. Those responsible for the deaths of and attacks on journalists should be vigorously prosecuted.

Notes

1 Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (Strasbourg: Council of Europe, 9 October 2002).

2 Concerns in Europe, January-June 2002, Ukraine (London: Amnesty International, 1 September 2002), http://web.amnesty.org/library/Index/ENGEUR010072002#UKR; http://web.amnesty.org/report2003/ukr-summary-eng.

3 Ukraine: Country Reports on Human Rights Practices – 2002 (Washington, DC: U.S. Dept. of State, Bureau of Democracy, Human Rights, and Labor, 31 March 2003; Conclusions and Recommendations of the Committee against Torture: Ukraine (New York: United Nations Committee Against Torture, 21 November 2001), CAT/C/XXVII/Concl.2; Report to the Ukrainian Government on CPT (Council of Europe).

4 "Prevention of Torture in Ukraine," Newsletter (Copenhagen: International Rehabilitation Council for Torture Victims [IRCT], 28 March 2003), http://www.irct.org/usr/irct/home.nsf/unid/BKEN-5L3KCP.

5 "Ukraine Opposition Leads Street Protests," BBC World News, 16 September 2002, http://news.bbc.co.uk/2/hi/world/europe/2261192.stm; Human Rights in the OSCE Region: Europe, Central Asia and North America, Report 2003 (Vienna: International Helsinki Federation for Human Rights [IHF-HR], June 2003); World Report 2003 – Ukraine (New York: Human Rights Watch, 2003), http://www.hrw.org/wr2k3/europe15.html.

6 Country Reports (U.S. Dept. of State).

7 Ibid.

8 Ibid.

9 "Women's Work: Discrimination Against Women in the Ukrainian Labor Force," Human Rights Watch Report (New York: Human Rights Watch, August 2003).

10 Trafficking in Persons Report 2003 (U.S. Dept. of State, Office to Monitor and Combat Trafficking in Persons, June 2003), http://www.state.gov/g/tip/rls/tiprpt/2003.

11 Human Rights in the OSCE Region (IHF-HR); Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinion on Ukraine (Council of Europe, Committee of Ministers, 1 March 2002), CM(2002)45.

12 Resolution on the implementation of the Framework Convention for the Protection of National Minorities by Ukraine (Council of Europe, Committee of Ministers, 5 February 2003), ResCMN(2003)5; Comments by the Government of Ukraine on the Concluding Observations of the Human Rights Committee: Ukraine (New York: United Nations International Covenant on Civil and Political Rights, 10 October 2002), CCPR/CO/73/UKR/Add.1; Human Rights in the OSCE Region (IHF-HR); Resolution on the Implementation ... (Council of Europe, Committee of Ministers).

13 Country Reports (U.S. Dept of State).

14 Advisory Committee ... Opinion on Ukraine (Council of Europe, Committee of Ministers).

15 Country Reports (U.S. Dept. of State).

16 Human Rights in the OSCE Region (IHF-HR).

17 Comments by the Government of Ukraine (UN International Covenant on Civil and Political Rights).

18 Felix Corley, "Ukraine: Why Do Security Police Question Catholic Priests?" Keston News Service (Oxford), 17 September 2002.

19 Country Reports (U.S. Dept. of State).

20 Human Rights in the OSCE Region (IHF-HR).

21 Country Reports (U.S. Dept. of State); 2001 NGO Sustainability Index (Washington, DC: U.S. Agency for International Development, Bureau for Europe and Eurasia, 2002).

22 Country Reports (U.S. Dept. of State).

23 Ibid.

24 Conclusions and Recommendations (UN Committee Against Torture); Country Reports (U.S. Dept. of State).

25 Country Reports (U.S. Dept. of State).

26 Ibid.

27 Organized Crime and Terrorism Watch, 3:33 (Prague and Washington, DC: Radio Free Europe/Radio Liberty [RFE/RL], 19 September 2003).

28 Ibid.

29 Country Reports (U.S. Dept. of State).

30 Human Rights in the OSCE Region (IHF-HR).

31 "Ukraine: An Inside Report," Jane's Intelligence Report, 13 September 2002; David Sands, "Evidence Said to Absolve President," Washington Times, 9 October 2002.

32 Nadezda Kinsky, "No Rest for the Opposition," The NIS Observed: An Analytical Review, 10 July 2003.

33 "Tymoshenko Associates Charged with Stealing $2 Billion," Organized Crime and Terrorism Watch 3:23 (RFE/RL, 3 July 2003).

34 Country Reports (U.S. Dept. of State); Human Rights in the OSCE Region (IHF-HR).

35 Country Reports (U.S. Dept. of State).

36 Natalie Mychajlyszyn, "Civil-Military Relations in Post-Soviet Ukraine: Implications for Domestic and Regional Stability," Armed Forces and Society 28:3 (Spring 2002).

37 "Ukrainian Parliament Reelects Ombudswoman ...," RFE/RL Newsline, 20 June 2003.

38 Corruption Perceptions Index, 2003 (Berlin and London: Transparency International, 2003), http://www.transparency.org.

39 Governance Research Indicator Country Snapshot (Washington, DC: World Bank, May 2003), http://info.worldbank.org/governance/govdata and http://info.worldbank.org/governance/kkz2002/sc_chart.asp.

40 Inna Pidluska, "Corruption Versus Clean Business in Ukraine" (Washington, DC: Center for International Private Enterprise, 1998), http://www.cipe.publicatons/fs/ert/e28/pidle28.htm; Askold Krushelnycky, "Group Battling To Change Public's Apathy Over Corruption," RFE/RL Weekday Digest, 20 January 2003.

41 Igor Zhdanov, "Corruption in Ukraine: Essence, Scale, and Influence," Connections 1:2 (April 2002), http://www.uceps.com.ua/eng/all/publications/publicat_1167_eng.shtml.

42 Country Reports (U.S. Dept. of State); Peter H. Solomon, Jr. and Todd S. Foglesong, "The Two Faces of Crime in Post-Soviet Ukraine," East European Constitutional Review (Summer 2000).

43 Roman Kupchinsky, "Naftohaz Ukrayiny: A Study in State-Sponsored Corruption (Part 1)," Organized Crime and Terrorism Watch 3:25 (RFE/RL, 18 July 2003).

44 "Head of Ukraine's anticorruption body resigns," BBC Monitoring Service, 4 December 2002.

45 Taras Kuzio, "Ukraine Remains on Money-Laundering Blacklist," Crime and Corruption Watch 3:3 (RFE/RL, 23 January 2003).

46 "Campaign to Eliminate Corruption Under Way in Ukrainian Police Force," BBC Monitoring Service, 8 November 2002.

47 Igor Zhdanov, "Corruption in Ukraine"; Taras Kuzio, "Ukraine Remains on Money-Laundering Blacklist."

48 Judicial Reform Index for Ukraine (Washington, DC: American Bar Association, Central and East European Law Initiative, May 2002).

49 Igor Zhdanov, "Corruption in Ukraine."

50 "Opposition MP Says He Was Offered 2m Dollars to Break Rank," BBC Monitoring Service, 22 November 2002.

51 Country Reports (U.S. Dept. of State).

52 Solomon and Foglesong, "The Two Faces of Crime."

53 Taras Kuzio, "Ukraine Remains on Money-Laundering Blacklist."

54 "Money-Laundering Sanctions on Ukraine to Be Abolished," Financial Times, 14 February 2003.

55 Larysa Denisenko, News from Ukraine, "SBU Calls Corruption 'Normal' for Execs, Officials" (New York: Public Interest Law Network, email list, April 1999), http://www.pili.org/lists/piln/archives/msg00359.html; Solomon and Foglesong, "The Two Faces of Crime."

56 Roman Kupchinsky, "Naftohaz Ukrayiny: A Study in State-Sponsored Corruption (Part 2)," Organized Crime and Terrorism Watch 3:26 (RFE/RL, 5 August 2003).

57 "Campaign to Eliminate Corruption Under Way in Ukrainian Police Force," BBC Monitoring Service, 8 November 2002.

58 Maryana Oliynyk, "Syl'nyi khid," Den' 109 (26 June 2003).

59 "Executive Summary," Ukraine: Review of the Budget Process, A Public Expenditure and Institutional Review (World Bank, 8 March 2002).

60 Askold Krushelnycky, "Group Battling To Change Public's Apathy Over Corruption," RFE/RL Weekday Digest, 20 January 2003.

61 Igor Zhdanov, "Corruption in Ukraine."

62 Marek Hessel and Ken Murphy, "Stealing the State, and Everything Else: A Survey of Corruption in the Postcommunist World" (Berlin and London: Transparency International, Working Paper, May 2003), http://www.transparency.org/working_papers/hessel/index.html.

63 Ukraine: Parliament Elections, March 2002 – Final Report (Warsaw: OSCE, Office for Democratic Institutions and Human Rights, 27 May 2002).

64 Global Corruption Report 2003 (Transparency International); Country Reports (U.S. Dept. of State).

65 Taras Kuzio, "The Fear That Drives Him," Transitions Online, 2 October 2003; Tom Warner, "Kuchma May Cancel Ukraine Election," Financial Times, 23 August 2003; Jan Maksymiuk, "Will Kuchma propose 'parliamentary republic?'" Poland, Belarus, and Ukraine Report (RFE/RL, 19 August 2003).

66 Interview with anonymous source, Ottawa, Canada, September 2003.

67 Country Reports (U.S. Dept. of State).

68 Oleg Varfolomeyev, "Muzzled Media in Ukraine," Russia and Eurasia Review 2:1 (Washington, DC: Jamestown Foundation, 7 January 2003).

69 Freedom of Expression and Information: Experts' Report on the Situation in Ukraine (Strasbourg: Council of Europe, 13 December 2002), CM/Monitor(2002)24; Country Reports (U.S. Dept. of State); Global Corruption Report 2003 (Transparency International).

70 Taras Kuzio, "Ukraine Returns to Soviet-Era Tactics to Subdue Opposition," (Un)Civil Societies 3:38 (RFE/RL, 18 September 2002).

71 Freedom of Expression (Council of Europe).

72 "New Ukraine Law Prohibits Media Censorship," The Associated Press, 28 April 2003.

73 "OSCE Media Representative Concerned over Ukraine Adopting Additional Restrictive Legislation Against Journalists" (Vienna: Organisation for Security and Co-operation in Europe [OSCE], 15 July 2003), http://www.osce.org.

74 Freedom of Expression (Council of Europe); Country Reports (U.S. Dept. of State); Global Corruption Report 2003 (Transparency International).

75 Freedom of Expression (Council of Europe); Human Rights in the OSCE Region (IHF-HR); Country Reports (U.S. Dept. of State).

76 Country Reports (U.S. Dept. of State); Human Rights in the OSCE Region (IHF-HR); Global Corruption Report 2003 (Transparency International).

77 Country Reports (U.S. Dept. of State).

78 Human Rights in the OSCE Region (IHF-HR).

79 "Ukraine: Journalist and Press Freedom Representative Killed in Car Crash" (Paris: Reporters Without Borders, 15 July 2003); Taras Kuzio, "New Evidence Points to High-Level Involvement in Political Murders in Ukraine," Organized Crime and Terrorism Watch 3:33 (RFE/RL, 19 September 2003); Statement by The Honorable Christopher H. Smith, Chairman, U.S. Helsinki Commission, Congressional Record,Washington, D.C., 16 September 2003.

80 "IFJ Raises Alert Over Suspicious Attack on Journalist in Ukraine" (Brussels: International Federation of Journalists, 28 July 2003), http://www.ifj.org.