Declarations issued by the U.S. Department of State and comments by European Union Enlargement Commissioner Stefan Fuele indicate the democratic world is increasingly alarmed at what it perceives are politically selective prosecutions in anti-corruption and abuse of power cases opened up against former Prime Minister Yulia Tymoshenko as well as an erosion of press freedoms. One of my former colleagues, Tom Melia, a key U.S State Department official on democracy issues, has asserted that relations with Ukraine could be “complicated” by democratic backsliding.
The recent downgrading by Freedom House of Ukraine from “Free” to “Partly Free” is further evidence of the growing concern. So, too, is the recent decision by Czech authorities to grant political asylum to Tymoshenko ally and former Economy Minister Bohdan Danylyshyn. The Czech Republic is widely regarded as a beacon of democracy in the post-Communist world and its views will be crucial in Ukraine’s future hopes of EU membership.
It is, therefore, quite clear that Ukraine’s current leadership has a serious problem in its relationships with the democracies of Europe and North America. At the same time, despite these growing concerns, it also clear that Ukraine is very far from becoming an authoritarian state.
Freedom to protest is widely respected. On Jan. 22, Ukraine’s major opposition parties openly and freely, assembled and protested in Kyiv and throughout Ukraine. There were no reported instances of harassment at the protest venues, although there were warnings (later withdrawn) about participation in such protests that emanated from the Ministry of Interior in what was a clear attempt to dissuade citizens from exercising their Constitutional rights.
Protests held in early December 2010 against provisions in the new tax code by small business led to a dialogue with President Viktor Yanukovych, his veto of the legislation, and the eventual removal from offending provisions in the newly enacted code. And while some oppositionists point to investigations of some protestors, these are appear to be focused on alleged damage done to Kyiv’s central square and do not constitute wide-ranging reprisals against most protest leaders and participants.
In October 2010, too, spontaneous, countrywide student protests against the imposition of new education fees proceeded freely and openly, without government obstruction or intimidation.
Similarly, the major television networks are filled with leading opposition voices, and populated by journalists and analysts who sharply criticize the government. This is particularly the case on the marathon weekly political talk shows hosted by Savik Shuster, Evgeniy Kiselyov, and Andriy Kulikov, each of which began the New Year with an impressive 13-16 percent share of viewers in their prime time slots.
While media critics rightly point the absence of hard-hitting reporting on the nightly news programs, this trivialization of the news is a phenomenon that is also widely known in the West. This shortcoming, in large measure, is compensated by the enormous role played by the political talk shows, and by the all news coverage offered by Channel 5.
Print media, while far less important, also reflects a wide range of viewpoints. Of the wide array of newsweeklies none can said to be slavishly pro-government and several are openly oppositional. The business weeklies, while less hard-hitting, are filled with objective coverage and frequent criticism of official policy.
A cursory look at the top twenty internet news sites – as measured by bigmir.net – shows that around half are strongly critical of those in power, another six or seven are balanced in their newsgathering and analysis, and only three or four tilt toward those in power.
Civic life, too, is vigorous in Ukraine. And public opinion polls show that while Yanukovych remains the country’s most popular leader, there is little evidence of the kind of political uniformity found in Russia. In short, pluralism is alive and well, and is nurtured in part by the high degree of diversity present in the media and civic life.
Furthermore, on the plus side, a new, progressive law on public access to government information has been passed and has earned the plaudits of Yanukovych’s harshest critics.
There is also ample reason for Europe and the U.S. to welcome Yanukovych’s economic stewardship of Ukraine. Corporate tax rates have been reduced. New hotel and light industry businesses are being given a five-year tax holiday. The value added tax rate is headed downward in 2014, and painful but necessary pension reform is on the way. There is also the welcome news of deep cuts in the bloated state bureaucracy, as well as some modest steps toward deregulations.
Yet instead of benefiting from acknowledgement for this generally positive state of affairs and for his positive economic steps, Yanukovych is instead being subjected to increased international criticism.
Why, then, is Yanukovych and Ukraine’s leadership facing such severe criticism? The short answer is: the country’s dysfunctional judicial system and a security and police system that retains many of the habits of the Soviet era (a state of affairs that regrettably was never seriously or systematically addressed by the former Orange government).
In such a context, doubts and concerns over the investigations and cases of former Tymoshenko government officials will remain despite the fact that similar corruption and abuse of power cases have been opened against members of Yanukovych’s political party and key political allies. This list includes the former Regions’ Party speaker of the Crimean parliament, a former Deputy Environment Minister from the current government, an official from the current presidential administration, and numerous high-ranking officials from the Kyiv city administration, whose leadership backed Yanukovych in last year’s presidential election.
Doubts also persist despite the fact that the Yanukovych administration and Prime Minister Mykola Azarov’s government hired Western investigators to document corruption and abuse of power under the former government. Moreover, the very fact that the government is pursuing cases in the U.S. and the U.K. against offshore and foreign companies linked to allegation of fraud in the purchase of antiviral drugs, vans, and automobiles makes it clear that the government believes it and its investigators have uncovered credible instances of such violations.
Nevertheless, the reality is that while Western governments continue to exhort Ukraine to confront corruption, until the justice and prosecutorial systems are restructured in a fashion that advances their independence, Western skepticism of corruption charges against high-ranking opposition leaders will remain.
Nor is the credibility of the government’s prosecution bolstered by the unreasonably rough treatment of officials suspected of relatively minor infractions (former Interior Minister Yuriy Lutsenko) or by onerous limitations on the domestic and international travel of opposition leaders, especially Tymoshenko.
In such a context, Ukraine’s current leadership should: a) undertake a wide-ranging reform of the criminal code; b) enlist eminent European and North American experts as advisors in a process aimed at depoliticizing Ukraine justice system; c) decriminalize the offense of bringing material damage to the government unless malicious intent can be proven by making it a civil offense; d) refrain from imprisoning those being investigated for nonviolent crimes, provided there is no proven evidence of attempts or plans to flee the country; e) allow leading opposition figures freedom of movement in the pursuit of their political activities.
Such steps would not remove all doubts about political motives behind the recent spate of criminal cases opened against members of the former government. They would, however, open to door for a more balanced view in the West of the motives cases under investigation and set in motion a process of mutual give and take between Ukraine and the democratic world.
In the end, Yanukovych’s practical approach to relations with Europe, his strategic aim of European integration, his serious pursuit of free trade with Europe, his support for bringing Ukrainian law and regulations into conformity with European standards and the recommendations of the Venice commission, his recent comments about the harshness of police and prosecutorial actions, and his admission in Davos that a post-Soviet mentality” is responsible for “”stifling democratic reforms” are all indications of his openness to criticism and his willingness to correct mistakes.
Still, it is clear that Ukraine and the Yanukovych presidency are at a crossroads. The message from the European Union is clear: there can be no compromises on the European values of democracy and the rule of law.
It would be a shame if the significant progress Yanukovych is making on the economic front were to be obscured and his aim of advancing Ukraine’s integration into Europe were to be undermined by a crude justice system. It is important that Yanukovych and his government take positive steps to address this challenge.
Adrian Karatnycky is a Senior Fellow at the U.S.-based Atlantic Council. For over a decade, he was Executive Director and President of the U.S.-based human rights group Freedom House.
