Countries at the Crossroads 2006 - Ukraine

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

Introduction

Two years ago, no one could have anticipated that the clear rise of post-Communist authoritarianism in Ukraine would be blocked by the largest street demonstrations in Europe since 1989. The Orange Revolution – the popular peaceful uprising to invalidate the fraudulent 2004 Ukrainian presidential election – was a seminal event in the post-Soviet region (Baltics excepted), as it sent a powerful message that the slide toward a noncompetitive and relatively closed system is not irreversible. In Orange Ukraine, the political trajectory is very much in the balance, with both promising signs pointing to a regime striving to achieve European standards and worrying trends reflecting durable old-regime traits.

Ukraine has made the most progress since 2004 in the realm of Accountability and Public Voice. The 2004 presidential election ultimately proved that the results of an election in oligarchic Ukraine could reflect the will of the electorate. Despite numerous reports that state employees were instructed to pressure voters to support the incumbent regime candidate, Viktor Yanukovych (a strategy known as "the use of administrative resources"), the race was in fact extremely competitive in favor of challenger Viktor Yushchenko. The Yanukovych camp, in collusion with the presidential administration and the Central Electoral Commission (CEC), was thus forced to clumsily fabricate nearly a million votes in Yanukovych's fief of Donbas in the presidential runoff of November 21, 2004. After two weeks of mass protests, the Supreme Court invalidated the vote and ordered a repeat ballot on December 26, which domestic and international observers deemed free and fair. A year later, Ukraine was gearing up for a crucial parliamentary election in March 2006, but the Orange Revolution rendered the prospects of a fraudulent election almost unthinkable.

The media have opened up considerably. The temnyky (those presumably secret but regularly leaked instructions from the presidential administration to the broadcast media on how to treat the news of the day) vanished during the Orange Revolution. While the broadcast and print media continue to lack the critical and investigative bent displayed by online media, particularly Ukrainska pravda, they have been used increasingly by politicians as arenas to attack their political opponents. When Prime Minister Yulia Tymoshenko and her allies were ousted from power in September 2005, the Tymoshenko and Yushchenko political blocs washed their political dirty linen in the media glare, amid severe charges of corruption and disloyalty. This was a far more open process than, for instance, the backroom dealings of oligarchic factions that led to Yushchenko's dismissal as prime minister in April 2001, when the accusers refused to debate the merits of their case publicly. This new openness of the political game, which, as in all open systems, is not always pretty, can be seen as the most immediate legacy of the Orange Revolution.

Ukraine, however, remains hampered by a weak adherence, on the part of politicians and public servants, to the rule of law. A common thread in the country's approach to the elements of democracy is an inability or unwillingness to devise practical mechanisms to enforce laws and rights. Rights are often declarative and lack supporting legislation, as in the realm of minority, language, and religious rights. When reasonably drafted in legislation, rights often remain unenforced for lack of funding, as in the deplorable conditions of detention. Even more fundamentally, the principle of separation of powers between the executive, legislative, and judicial branches – the stepping-stone of open and competitive systems – remains unclear in the minds of the Ukrainian political elite, even those of the Orange persuasion. This ambiguity is embodied by the persistently controversial role of a prosecutor general whom the amended constitution continues to endow with the power to interfere in court judgments. The temptation to circumvent the law, at all levels of the state, is rendered all the more insidious when the premier magistrate of the land is constitutionally mandated to do so.

Accountability and Public Voice – 4.85

In the Kuchma era, the Ukrainian political system was aptly characterized as "competitive authoritarian." The executive branch strove to make state officials, from those in power ministries down to local administrators, loyal to the presidential regime rather than to the institution of the presidency, through nontransparent policies ("administrative resources") not regulated by law. The system, nonetheless, rested on the legitimacy of electoral contests, a process that the regime could not entirely control. In 1999, President Kuchma was elected for a second five-year term in a campaign marred by irregularities, particularly the use of state TV as a propaganda tool. The lack of a credible challenger and Kuchma's decisive victory margin led monitoring bodies to recognize the outcome. In 2004, however, all surveys indicated that former prime minister Viktor Yushchenko had a chance to defeat the incumbent regime's candidate, Viktor Yanukovych.

The election became a revolution. In an initial round of 27 candidates, Yushchenko obtained a plurality (40 percent), slightly ahead of Yanukovych, despite being essentially shut out of national TV coverage. In the second round, exit polls predicted a Yushchenko victory, but the CEC proclaimed Yanukovych the winner by a three percent margin, despite an obviously fraudulent turnout in Donbas (alone sufficient to account for the official Yanukovych lead) and evidence from leaked phone conversations that the presidential administration had been hacking into the CEC central server. International monitoring organizations and Western governments refused to recognize the results, and the unprecedented mass protests on the Maidan, Kyiv's central square, prompted the court to invalidate the results. A repeat election, in the presence of the largest international delegation of electoral observers in history, produced a clean Yushchenko victory.

The 2004 Ukrainian election was a turning point in the post-Soviet region, as it went against the trend of a general decline in the belief that rulers could be defeated through competitive elections. (The 2003 Rose Revolution in Georgia set the precedent, but the fact that the eventual presidential victor, Mikhei Saakashvili, ran unopposed in the decisive round, after the street protests, shed some doubt on the democratic process). In 2005, Ukraine consolidated its democratic electoral credentials by passing an electoral law that, in the words of the Council of Europe, "significantly enhanced election procedures" by allowing domestic nongovernmental organizations (NGOs) to observe the elections and improving the process by which some voters are allowed to vote either at home or at a polling station different from the one assigned to their residence. These two dispensations (home voting and absentee ballots) prompted the worst violations in the first two rounds of the 2004 election: numerous cases of multiple voting. The Council of Europe, however, voiced concern about a clause that would allow the electoral commission to temporarily shut down, without a court order, a newspaper or broadcast station for "slander" or the retransmission of "unconstitutional" material.

The March 2006 parliamentary election was set to introduce two significant changes in electoral representation. The first is the nature of the electoral system. For the first time, all parliamentary deputies will be elected through proportional representation (PR), when electors vote for a party list rather than a specific deputy representing an electoral riding. In the previous system, used in the 1998 and 2002 parliamentary elections, half of the deputies were elected in individual ridings and the other half through party lists. In practice, most deputies elected in ridings ran as independents and then joined propresidential factions in parliament. In 2002, the propresidential bloc ran poorly in the PR seats, finishing far behind the right (Our Ukraine) and left (Communist) opposition, but nevertheless managed to achieve a majority in parliament. The pure PR system, a rarity in international practice, was adopted to prevent this infringement of electoral accountability. Many PR systems break up countries into several regional constituencies, with region-specific party lists. Ukraine opted for a single constituency (i.e., the entire country), which could raise a different problem of electoral accountability, as national party lists risk being dominated by deputies originating from major centers (Kyiv, Donetsk, Lviv).

The second major change in the electoral process is the introduction of the so-called imperative mandate of parliamentary deputies, as part of the constitutional amendments adopted on December 8, 2004 (see Rule of Law). In the past decade, the parliamentary floor resembled a stock exchange, with deputies constantly joining or leaving existing or new factions, often, allegedly, with a price tag. The process was detrimental to the consolidation of political parties and to the formation of a stable parliamentary majority. In order to achieve the latter, the new electoral law expressly forbids future deputies, all elected through party lists, to leave their party/parliamentary faction during the entire duration of their mandate. The European Union (EU's) Venice Commission has criticized this clause as potentially unconstitutional on the grounds that "Members of Parliament are supposed to represent the people and not their parties." To be sure, party discipline – or deputies' obligation to vote according to the party line – is at the core of the British Commonwealth parliamentary tradition. Yet deputies, in this tradition, can leave or be expelled from a party and become independent or join another party. In an imperative mandate, recalcitrant deputies would in principle be expelled from parliament altogether, making them entirely accountable to their party. It remains to be seen whether Ukrainian political culture will tolerate the enforcement of such an inflexible and questionable rule of legislative conduct in a context in which the legitimacy of constitutional amendments itself remains cloudy.

The media has largely freed itself from the strain of executive control since the early days of the Orange Revolution. Reporters Without Borders noted a "spectacular" improvement in Ukraine's ranking in its annual press freedom index, which jumped from a ranking of 138 in 2004 to 112 in 2005. National TV channels, owned by either the state or private entrepreneurs (the so-called oligarchs), now reflect a broad range of opinion. NGOs sounded the alarm in May 2005 when the Ministry of Transport and Telecommunications announced that websites would need to register with authorities and comply with guidelines regarding reporting that compromised the "honor," "reputation," and "dignity" of individuals. Media monitoring groups warned that such vague language could open the door to administrative censorship. The ministry rescinded its decision in October 2005. A few cases of repression against journalists were reported in the regions, such as an attack against TV reporter Natalya Vlasova in Dnipropetrovsk and the allegedly groundless arrest of weekly magazine journalist Volodymyr Lutiev in Sevastopol. Reporters Without Borders argued that these incidents were indicative of a "deteriorating climate" in fall 2005 and called for legal action against those threatening press freedoms. While these cases are disturbing, the Kyiv-based Institute of Mass Information, in its monthly Press Freedom Barometer, noted in October 2005 that all indicators of media persecution (imprisonments, attacks, threats, state pressure) were down, generally by at least half, as compared to October 2004. No journalist has been murdered since the Orange Revolution.

The relaxation of media control, however, lacks a firm legal foundation. The National Television Company of Ukraine, the state-run television and radio broadcaster, has not yet been reformed, and NGOs complained that their recommendations on the nomination of new officials by the new government were totally disregarded and that the process lacked transparency. The Council of Europe has called for years for the introduction of a public broadcasting service in Ukraine, in which the government would have general oversight but no direct control, along the lines of the BBC or PBS. A draft law "On Public Television and Radio in Ukraine" was in preparation in 2005 and was favorably received by the British NGO Article 19, but there were reports that the Yushchenko administration was split on the virtue of public broadcasting, with some officials supporting the maintenance of a state-controlled broadcasting structure. In the whirlwind of mutual accusations of corruption during the government crisis of September 2005, claims were made that both archrivals Tymoshenko and Poroshenkohad been lobbying for the sale of private TV stations to their respective allies. (The crisis originated from the permanent tension caused by the overlapping duties between Prime Minister Tymoshenko and Security Council Secretary Poroshenko). Whether true or not, these allegations at least suggested that the distance between government and the broadcast media remains uncomfortably narrow. As with all domains of political and social life, the translation of policy intentions and general principles of law into clear and enforceable legislation remains Ukraine's biggest challenge.

Recommendations

• To comply with European democratic standards, the government should initiate new constitutional amendments to replace the imperative mandate of deputies with more flexible rules favoring party discipline.
• To favor greater regional representation, the government should consider breaking the single PR national list into several regional lists in the next parliamentary election.
• To consolidate the gains of the Orange Revolution regarding the media, the government should prioritize the passing of a law on public broadcasting and protections for journalists.

Civil Liberties – 4.34

The situation in penitentiaries is bleak. Amnesty International denounces an "apparently pervasive culture of impunity" by law enforcement officials in their treatment of detainees. Even though Ukraine bans torture and has signed all the relevant international conventions, the use of violent methods, such as electric shocks, suffocation by the forcible use of gas masks, or the suspension of individuals from a metal pole, appears to be widespread. According to a 2004 study by the Kharkiv Institute for Social Research, two-thirds of people in police detention claimed to have been ill-treated, one-third to have received beatings, and 4 percent to have been tortured with special equipment. Between July 2003 and July 2004, 436 cases of alleged torture were reported by NGOs. Police brutality aside, the European Court on Human Rights has observed that "the lack of resources cannot justify prison conditions which are so poor as & to be inhuman and degrading."

Further, very few violations of civil rights in prison are prosecuted in court. Human rights groups, in fact, claim that courts routinely condone torture by passing verdicts that rely on confessions obtained under torture. When convictions of civil rights violators do occur, they are often "disproportionately lenient." A January 2005 law intends to address this lacuna by providing for more severe punishment of people who inflict torture. Also noteworthy is an unprecedented decision by the Ministry of Interior to involve NGOs in a systematic program to inspect sites of detention, which has been praised by civic organizations. A culture of impunity becomes more vulnerable when exposed to public opinion.

The protection of rights in Ukraine generally remains fairly weak. On a positive note, the space for political contestation has broadened noticeably since the Orange Revolution. Previously, opposition groups complained regularly of police harassment. For instance, the searches conducted in the premises of the youth civic group PORA in October 2004, prior to the first round of presidential balloting, were legally questionable. Scholars argued that incidents like these were part of a general pattern of the selective use, by the executive branch, of law enforcement agencies (Tax Police, Interior Ministry, Office of the Prosecutor General) against political opponents. These tactics of the so-called blackmail state ceased under Yushchenko, notwithstanding the fact that the losers of the presidential vote have regularly complained of harassment. On the whole, the state is now respectful of the right of individuals to organize and assemble autonomously.

The capacity of individuals to exercise rights related to the public recognition of groups, however, is far more ambiguous. Ukraine is often lauded for its tolerance toward religious, ethnic, and language groups, but few of its policies in that regard rest on a strict observance of rights. Since independence, religious life has flourished in Ukraine, with the number of Orthodox parishes and evangelical missions greater than in the entire Russian Federation. The registration of religious organizations, however, is bureaucratically onerous and, in its excessive regulation of internal management, has been criticized as infringing on the right of these religious organizations to conduct their own affairs.

Access to premises remains far and away the major problem hindering the practical realization of the right to worship collectively. Religious groups complain of delays and refusal on the part of local administrations in allocating lands for the construction of sites of worship. For groups whose property had been expropriated by the Soviet regime – particularly, but not limited to, the Uniate Church – a fair mechanism of property restitution has yet to be implemented. The basic problem is that religious associations as such are not recognized as legal entities that can acquire property. Only local communities (hromada) and monasteries possess such a right. Yet these communities are often solicited to change their church affiliation, given the intense competition between the four Christian churches – the Ukrainian Orthodox Church Moscow Patriarchate (UOC-MP), the Ukrainian Orthodox Church Kyiv Patriarchate (UOC-KP), the Autocephalous Ukrainian Orthodox Church, and the Uniate Church – for the enrollment of local communities, complicating the issue of restitution. The legal uncertainty in the allocation of church property feeds the perception that local administrative bodies are biased in their policies with respect to rival churches. As in electoral politics, the alleged bias follows a regional pattern, with the UOC-MP complaining of discrimination in Western Ukraine and the UOC-KP of comparable mistreatment in Eastern Ukraine.

Anti-Semitism is a cause for serious concern. The Global Forum on Anti-Semitism, founded by ex-Soviet dissident and Israeli government minister Natan Sharansky, noted a rise in anti-Semitic acts in Ukraine (and Russia) in 2005. Yet, because the number of reported incidents is relatively small, one can question, as some other Jewish organizations in Ukraine do, whether the evidence points to a measurable increase in such acts. A clearer and more disturbing pattern, in any case, is the relative public indifference toward anti-Semitism. Anti-Semitic acts, when they do occur, tend to receive minimal coverage in the media. Anti-Semitic speech, of the most blatant form, tends to be left unchallenged by state and civic bodies, even when it reaches wide audiences.

Moreover, the largest private university in Ukraine, the Inter-Regional Academy of Personnel Management (MAUP), recognized by the Ministry of Education as a PhD-granting institution, has for years distributed to all its students two glossy magazines, Personal and Personal-Plius, which regularly carry articles that attribute responsibility for the atrocities of the Bolshevik Revolution and the 1933 famine in Ukraine to Jews and use the kind of traditional anti-Semitic imagery common in Europe prior to World War II. Yet there was little reaction from government or civil society until MAUP director Heorhii Shchokin became an international embarrassment by publicly supporting Iran's call to eradicate Israel in November 2004. This incident suggests that as long as a situation does not acquire an international dimension, there is little political liability in harboring unambiguous anti-Semitic views in Ukrainian domestic politics. The one visible case in which authorities attempted to shut down a newspaper on the grounds of anti-Semitism in January 2004 was widely perceived as an act of selective prosecution against a publication associated with an opposition party.

In terms of language rights, Ukraine finally deposited the ratification instrument of the European Charter for Regional or Minority Languages at the Strasbourg headquarters of the Council of Europe in September 2005, two and a half years after the Ukrainian parliament ratified the charter and nearly six years after the parliament's first attempt at ratification (a vote that had subsequently been overturned by the Constitutional Court on procedural grounds). The charter aims at codifying the rights of a critical mass of speakers of nonofficial languages to use their language in public domains. A number of minority languages in Ukraine have long been used by authorities in rural areas (Hungarian, Romanian/Moldovan), but the six-year delay in ratifying the charter is rooted in disagreements over the status of Russian, a language used as a matter of preference by nearly half of the population, far more than the proportion of ethnic Russians (17 percent) or of Ukrainian citizens claiming Russian as their native language (30 percent).

Russian was the de facto state language in the Soviet Union and continues to predominate in most urban areas. A political compromise was achieved in the 1996 constitution, making Ukrainian the sole state language, while guaranteeing "the free development, use and protection of Russian." Yet no legislation specifies when and how Russian (or other nonofficial languages) can be used in public domains. In practice, the use of Russian continues to predominate in Eastern Ukraine, but in a legal limbo, at the discretion of civil servants. The dominant view in government is that the charter does not apply to Russian, even if the law on ratification explicitly says so, and it appears most unlikely that the legal codification of the public use of languages in Ukraine will be on the agenda any time soon.

Legal mechanisms to protect visible minorities against discrimination remain lacking, although progress has been made in the preparation of a bill that would define a range of discriminatory offenses, shift the burden of proof to the defendant, and introduce a variety of evidentiary methods in court. Meanwhile, some minorities find themselves at the margin of the law. Roma organizations in the western province of Transcarpathia periodically report instances of police brutality. Chechens apprehended while attempting to enter the EU through Ukraine are systematically refused asylum and often deported back to Russia. Human Rights Watch asserts that the amended Ukrainian law on refugees "infringes the right to seek asylum" as enshrined in the Universal Declaration of Human Rights and that the "routine use" of administrative detention "results in serious human rights violations." In general, migration policy is pervaded by corruption and a lack of government resources.

Ukraine has been identified as a major country of origin for the trafficking of women and children, with the number of estimated victims in the hundreds of thousands. Conviction rates are quite low; only 22 traffickers were sent to jail in 2005. Once again, the absence of a well-defined mechanism to enforce general principles of law is a major problem. Reliance on witness testimony, a requirement that offenders must have crossed borders, and a presumption that female victims may have been a consenting party account for the paucity of successful prosecutions. The creation of a separate Counter-Trafficking Department in the Ministry of Interior in 2005 may signal a heightened determination by the new government to stem the flow of trafficking.

Recommendations

• To prevent simmering conflicts from worsening, the Ukrainian government should initiate the adoption of clear legal guidelines for the allocation of church property, including restitution, and the public use of languages, including Russian.
• Without infringing on academic freedom, the Ministry of Education should elaborate clear ethical guidelines for discriminatory speech and acts emanating from institutions whose curriculum and diploma are officially recognized by the state.
• The Ukrainian government must put an end to the culture of impunity and other instances of police brutality prevalent in sites of detention.

Rule of Law – 3.65

Ukraine has a serious flaw in its justice system: the excessive powers entrusted to the prosecutor general. In a modern democracy, the chief prosecutor represents the state in a court of law but must abide by the final judgment of the court. In the Soviet Union, however, the prosecutor was given a supervisory role over the work of courts. The 1996 Ukrainian constitution proclaimed the separation of judicial, executive, and legislative powers and the concomitant subordination of prosecutorial power to the courts. The Soviet-era oversight duties of the prosecutor were to be phased out by 2001, but they remained in place until the Orange Revolution.

Five days after the Supreme Court invalidated the results of the November 21 presidential vote and ordered a new round of elections (on December 3, 2004), a political compromise was concluded by the Yushchenko and Yanukovych camps. The compromise took the form of a quid pro quo. The Yushchenko party, Our Ukraine (over the strenuous objections of the Tymoshenko Bloc, which was supporting Yushchenko during the election), agreed to a constitutional amendment that would purportedly shift significant powers to the prime minister and parliament, transforming Ukraine into a parliamentary-presidential system, rather than the other way around. In return, the Yanukovych Party of Regions agreed to amend the election law by eliminating the loopholes (voting at home, voting in absentia) that allowed the worst fraudulent voting in the first two rounds. The constitutional amendments were to come into effect in January 2006.

The amendments, passed by a constitutional majority of the Verkhovna Rada (parliament), appear to have violated constitutional procedure. According to Article 159 of the constitution, a draft law introducing amendments must be considered by the Constitutional Court for its conformity to constitutional requirements before it is voted on. The court had examined a previous version of these constitutional amendments earlier in 2004, but a 1998 ruling by the court opined that all versions of a draft amendment must be examined anew. The question is whether the draft amendment voted on December 8 was sufficiently altered from previous versions to require another opinion of the court. The Constitutional Court was not given an opportunity in 2005 to rule on the matter, partly because it began to lack a quorum in late 2005. Procedural maneuvers in parliament prevented the filling of court vacancies, allegedly to prevent a decision to overturn the December 8 constitutional amendment. The result is a serious discredit to the rule of law. Politicians, no doubt, were under great pressure from the street, which had massively mobilized for nearly three weeks running, to break the political impasse in December 2004. Yet the circumvention of the court, and its eventual neutralization for partisan purposes, cannot but undermine the legitimacy of constitutional rule in Ukraine.

The constitutional amendments, surprisingly, reinstated the Soviet-era powers of the prosecutor general, by including among his duties the "supervision [nahliad – in the sense of "control"] over the observance of the rights and freedoms of persons and citizens, [as well as] over the observance of laws regarding these issues by bodies of executive power, bodies of local self-government, and their officials and employees." The Venice Commission, the legal arm of the Council of Europe, had warned in the strongest terms that these prosecutorial powers, detailed in drafts of constitutional amendments prepared by the government in 2003-2004, were incompatible with the rule of law and the fundamental democratic principle of the separation of powers. The expansive investigative and detention powers of the office were also criticized as inherently placing the prosecutor in a conflict of interest. The danger, wrote the Venice Commission, was that "It was precisely in communist states that the prosecutor's office became a tool of repression as a result of &its broad scope of authority and its exemption from all supervision."

The Council of Europe has been unflinching in its denunciation of this holdover of Communist legal practice, writing in no uncertain terms in its September 2005 report, that "the long overdue abolition of the general oversight should be accomplished as soon as possible" and that "this function should be transferred to the judiciary (administrative courts) and ombudsperson institution gradually." The oversight functions undermine the core notion of a fair trial. By initiating the review of court judgments, the European Court of Human Rights deemed the practice incompatible with the principle of legal certainty embedded in the European Convention on Human Rights.

With such expansive and unregulated powers, the prosecutor general has found himself under a permanent cloud of political controversy before and since the Orange Revolution. The most visible case was that of Georgii Gongadze, a muckracking journalist who was kidnapped and murdered in the fall of 2000. Conversations secretly recorded in President Kuchma's office allegedly link the kidnapping to high government officials. For four years, the authorities impeded the investigation. On November 8, 2005, the European Court of Human Rights ruled that "the Ukrainian authorities & failed to investigate [Gongadze's] death [and] treated [his widow] in an inhuman and degrading manner." Earlier in the year, Prosecutor General Svyatoslav Piskun, who had been reinstated in his position in December 2004, announced the capture of three low-level policemen, the alleged killers of Gongadze, and a trial was announced for 2006, but, repeating a pre-Orange pattern, there is no evidence that his office has been actively investigating the identity of whoever gave the orders.

The prosecutor's handling of two critical suspects in the chain of command – former interior minister Kravchenko, who was called for questioning through the most irregular means of the mass media and found dead the day after, and Colonel Pukach, commander of the Interior Ministry's Criminal Investigations Directorate, who vanished following a leak on his imminent arrest – did little to dissipate doubts about continuing political interference and the possible existence of an immunity pact between the current and former presidents on the matter. A report written on behalf of the International Federation of Journalists found no direct evidence of political collusion yet concluded that "the Gongadze case has been conducted in such a way consistent with the existence of such an arrangement, however informal or general its terms."

In the first half of 2005, the prosecutor general hauled in for questioning and detained dozens of public figures associated with the Yanukovych camp, on charges ranging from electoral fraud to separatism and extortion. The most significant arrest was that of Borys Kolesnykov, the head of the Donetsk regional council and a key official in Yanukovych's Party of Regions. People close to the Party of Regions claimed that these arrests were akin to political persecution of the opponents of the Orange Revolution and appealed to European bodies. Ukrainian media and NGOs gave little credence to these grievances. The Council of Europe called for investigations to be carried out "in full compliance with European standards." The fact that several of these investigations were conducted by an office endowed, as we saw, with excessive powers, and whose relationship to the presidential administration has traditionally lacked transparency, raised suspicions of a partisan operation.

In the end, no high-profile case was brought to court, and Yushchenko, in order to obtain the support of his former rival, Yanukovych, to nominate his new prime minister in September 2005, signed an agreement promising amnesty to the perpetrators of electoral fraud. In November, Yushchenko fired Prosecutor General Piskun (later reinstated by a court order), who claimed that his dismissal was related to his determination to investigate Yushchenko's wife on charges of corruption, a claim that Yushchenko denied.

The upshot is that a constitutional arrangement that blurs the distinction between adjudicating and enforcing the law leaves the door wide open for the perception that politics trumps the law in Ukraine. An aggravating factor is the severe lack of funding that affects all levels of the judiciary, not only limiting judges in their ability to take up cases expeditiously but also rendering them more dependent on the executive branch. A 2002 report on the European judicial systems found that Ukraine has one of the lowest rates of public spending on courts, with a per capita figure eight times less than that in Poland. However, a significant step forward was taken in September 2005, when the Cabinet of Ministers voted to triple the salaries of judges, effective in January 2006. The Council of Europe saluted the initiative, while cautioning that the executive branch should not be in a position to influence the salary of court officials.

The amended constitution upholds the right of the president to appoint professional judges to five-year terms, contributing to lasting corruption in the judiciary more broadly. Parliament elects all other judges (except those of the Constitutional Court) for permanent terms by a legally established procedure. The president also maintains the rights to establish or abolish courts of general jurisdiction (including the Supreme Court, specialized commercial courts, and military courts) and to appoint and remove chairs and deputy chairs of courts. A draft amendment to the Law on the Judicial System of Ukraine – intended to transfer this authority away from the president in order to prevent the possibility of indirect influence – was submitted to parliament in January 2005. The constitution provides an extensive list of conditions under which judges or chairs may be dismissed but clearly allocates this responsibility to the body that appointed them in the first place. The Constitutional Court, comprised of 18 judges and ultimately responsible for deciding the constitutionality of legislation, is appointed in equal shares by the president, parliament, and the Congress of Judges. However, the Constitutional Court has lacked a quorum since October 2005 as a result of parliament's failure to appoint its share of new judges, thus rendering the court's authority to consider cases obsolete.

While the law in Ukraine provides for each citizen's right to a timely, fair, and open trial, including the use of juries, this right was not respected in practice. Juries were not used over the course of 2005 and judges made most court decisions alone. Moreover, pretrial detention remains a serious problem, with defendants remaining in detention for months, or even years, before being brought to trial. Pretrail detainees often lack access to counsel due to vague legislation; while the law guarantees the right to legal defense, the stage at which a detainee has the right to consult a lawyer remains unclear, with discrepancies between Article 21 of the Criminal Procedure Code and the Law on the Police.

The role of the police and the Security Service of Ukraine remains an area of significant concern but also one in which the government is taking clear steps toward reform. The police are accountable to the minister of internal affairs, whereas the internal security service forces report directly to the president. Specific changes to the criminal justice system, including an end of abusive practices by the police, are critical to Ukraine's meeting its goal of an association agreement with the European Union in 2007, as established in the three-year joint action plan for political and economic reform in the country signed by the government and the EU in February 2005. To this end, the government has made noteworthy strides toward curbing police abuses by taking disciplinary action against abusive law enforcement authorities that will hopefully make some progress toward resolving the country's long-standing problem of police impunity.

Recommendations

• As demanded by the Council of Europe for several years, Ukraine must break with the Soviet practice of endowing the Office of the Prosecutor General with supervisory powers over court decisions. The relationship between the prosecutor general and the executive must be made more transparent.
• Vacancies on the Constitutional Court must be filled and the court must be given an opportunity to rule on the conformity of the amendments voted on December 8, 2004, with constitutional procedures.
• The Gongadze case is a litmus test for the new government's commitment to justice and due process. The government must ensure that the investigation into the instigators of the crime is unimpeded.

Anticorruption and Transparency – 3.01

Ukraine is one of the most corrupt countries in the world. In Transparency International's Corruption Perceptions Index 2005, it ranked in the bottom tier, 107th out of 159 countries, tying with Belarus and coming in slightly ahead of Russia and Georgia. This score was actually an improvement over the 2004 index, in which Ukraine finished at 122 out of 146 countries. The expectation that the new Orange government would usher in a more transparent style of governance most likely explains Ukraine's better performance, as it appears to be too early to judge whether the endemic petty corruption, such as bribe-taking, that has characterized Ukraine for so long, has markedly diminished.

Bribes are generally linked to a combination of overintrusive government regulation, low salaries for civil servants, and poor oversight. The scale of regulations does not appear to have diminished in 2005, as the Wall Street Journal/Heritage Foundation Index of Economic Freedom continued to rank Ukraine in the bottom fifth of the world on the indicator of "Regulation," citing "complex, unpredictable, burdensome, and duplicative" procedures for conducting business. Prime Minister Tymoshenko announced her intention to scale back on the number of licenses issued by bureaucrats, a fertile ground for corruption, but the government's lack of cohesion on economic policy, which culminated with Tymoshenko's firing in September 2005, cast doubts on whether the policy bore fruit. Salaries of government employees, on the other hand, did increase in fiscal year 2005.

With the media no longer under pressure from the executive and political debates being conducted more openly, including among rivals within the Orange camp, allegations of corruption on a grand scale were regularly aired throughout 2005. This breakthrough in public exposure was not accompanied, however, by a change in the structural incentives for politicians and civil servants to blur the line between private and public interests. The most powerful incentive arises from the maintenance of subsidized prices and barter arrangements in the energy sector, the source of most of the private wealth accumulation in postindependence Ukraine. For as long as Ukraine has been paying below market prices for its energy, brokers have privately, and opaquely, benefited from the difference between world and fixed prices (explaining how at least two former prime ministers, Yulia Tymoshenko and Pavlo Lazarenko, made their fortunes in the late 1990s). A glaring current example is the company RosUkrEnergo, which controls the distribution of Turkmen gas to Ukraine and whose owners remained unknown in 2005.

Corruption is arguably the most pressing issue in the minds of the electorate. An American political scientist boldly argued that the mass mobilization during the Orange Revolution can be best explained as a unique opportunity for the population to manifest its rejection of pervasive corruption. The inability of the Yushchenko administration to tackle the energy sector proved very damaging politically. In September, Yushchenko chief of staff Oleksandr Zinchenko stunned the nation by publicly accusing two other close Yushchenko aides, Petro Poroshenko and Oleksandr Tretyakov, of "corruption." The implication was that the businessmen who financially supported the Orange demonstrations were now using their state offices to pursue private gains. Several allegations were linked to the gas distribution network. It was revealed that the Security Service of Ukraine (SBU), headed by Oleksandr Turchynov, a Tymoshenko ally, had begun, over the summer, to look into the middleman companies operating in the gas industry and that these investigations involved people close to Yushchenko, including Tretyakov. Turchynov claims that he then received direct orders from Yushchenko to "stop persecuting my men" and that these investigations "were creating a conflict" with Russian President Vladimir Putin.

The September allegations were denied by the accused and only briefly investigated. (The fact that an investigation into the allegations of corruption against Poroshenko was ended a few days after the firing of Prosecutor General Piskun in October 2005 did little to alter the public perception of the use of the office of the prosecutor general as a political instrument). However, they led to a decline in the popularity of Yushchenko and his political formation, Our Ukraine, to the advantage of the Tymoshenko Bloc, from where most corruption charges originated. While in the Kuchma era politicians appeared to be politically immune from their alleged corrupt behavior, in the Orange era there appears to be an electoral cost to engaging in what the public perceives as corruption. The problem is the scope of gray zones.

Corruption is an elastic concept that extends from gross misdeeds, such as embezzlement, to the fuzzier realm of conflict of interest. Many of the corruption allegations that have been leveled in partisan discourse since September 2005 may turn out to have had more to do with conflict of interest than blatant corruption. Yet Ukraine lacks legal guidelines to regulate the private interests of state officials, and the process of public disclosure of revenues by these officials has little credibility. This, and the continuously shady nature of energy transactions, feeds a public perception that corruption prevails among the higher-ups, undermining incentives for lower-level officials to mend their ways.

There were nonetheless a number of developments favoring government transparency in 2005. The Yushchenko administration was initially criticized for continuing the Kuchma practice of restricting access to normative acts according to criteria ("for official use only") not recognized by legislation. In the first three months of 2005, President Yushchenko issued 42 decrees and two instructions that were not publicly accessible, and Prime Minister Tymoshenko issued an additional 15. The practice was terminated afterward, and the Ministry of Justice recognized its illegal nature. Hundreds of such restricted acts had been passed in the Kuchma era and were reportedly used to shield perks and benefits for political insiders; in other words, the kind of behind-the-scenes arrangements likely to fall under the rubric of corruption. Yet legal guidelines establishing clear standards on the confidentiality of information are still lacking, and their lack, in practice, impedes the right of citizens to gain access to information on government activities. The lack of legislation to enforce the right to free access to information, inadequacies in the court system, and the absence of an effective mechanism to appeal against government decisions makes civic access to government information far more problematic than media access.

Another potential breakthrough in government transparency was the conduct of the televised state auction of Kryvorizhstal, Ukraine's largest steel plant, in October 2005. Shortly before the Orange Revolution, the plant had been sold to a group of Ukrainian businessmen, who included Kuchma's son-in-law, Viktor Pinchuk, for $800 million, a price that was widely considered far below its market value. The 2005 auction was won by a Dutch consortium willing to pay six times that amount. Kryvorizhstal was Exhibit No. 1 in the Orange government's oft-repeated promise to reopen bidding on illegal privatizations that took place in the Kuchma era. The intention to reprivatize assets, however, raised serious concerns among domestic and international entrepreneurs about the government's determination to respect property rights. Torn between a more populist prime minister, who hinted at thousands of reprivatizations, and a more pragmatic president, who talked of dozens, the government was incapable, in the first nine months of 2005, of devising a clear policy regarding the scope and process of reprivatization. While the fate of reprivatization remained uncertain by the end of the year, the sale of Kryvorizhstal set a high standard regarding open bidding for government contracts and property in the future.

Recommendations

• The government must strive to phase out barter arrangements and price differentials in the energy sector, thereby removing a powerful incentive for nontransparent and corrupt transactions.
• The government should elaborate clear guidelines regarding conflict of interest among state officials and ensure that their public declaration of revenues is credible with the public.
• Building on the Kryvorizhstal precedent, the government should institute a regular practice of open bidding for government contracts and property.

Author

Dominique Arel holds the Chair of Ukrainian Studies at the University of Ottawa.