Document #2050462

Freedom House (Author)

Nations in Transit 2021 - Ukraine

TRANSITIONAL OR HYBRID REGIME
39
/ 100
Democracy Percentage 39.29 / 100
Democracy Score 3.36 / 7
LAST YEAR'S DEMOCRACY PERCENTAGE & STATUS
40 / 100 Transitional or Hybrid Regime
The ratings are based on a scale of 1 to 7, with 7 representing the highest level of democratic progress and 1 the lowest. The Democracy Score is an average of ratings for the categories tracked in a given year. The Democracy Percentage, introduced in 2020, is a translation of the Democracy Score to the 0-100 scale, where 0 equals least democratic and 100 equals most democratic.
 
 

Score changes in 2021

  • Judicial Framework and Independence rating declined from 2.50 to 2.25 due to court rulings that suspended laws necessary for reforms, discredited progressive public officials, and overturned corruption verdicts; additionally, a constitutional crisis was caused by the judges of the Constitutional Court, who abolished asset declarations of public officials while acting with conflicts of interest.

As a result, Ukraine’s Democracy Score declined from 3.39 to 3.36.

Executive Summary

By Oksana Huss and Oleksandra Keudel

In 2020, Ukraine witnessed active resistance to major reforms, which essentially erased the democratic achievements of the previous year. President Volodymyr Zelenskyy initiated changes at the beginning of the year among key political staff, from the government to the Prosecutor General and the President’s Office. Most of these promising reformers were replaced by controversial personalities associated with different informal interest groups. Significant achievements of Ukraine’s special anticorruption institutions were torn down by a judiciary that worked to undermine the basic government principle of checks and balances. In particular, the Constitutional Court attacked cornerstones of anticorruption work by ruling that asset declarations, political appointments, and anticorruption institutions themselves are unconstitutional, which plunged the country into a constitutional crisis on top of the serious social and economic challenges posed by COVID-19.

The pandemic increased Ukraine’s dependence on IMF loans and foreign financial assistance to overcome the crisis. The conditionality of foreign donors intensified the demand for reforms, some of which explicitly contradicted the interests of influential groups. Ukraine’s leadership entered the year with sufficient support, both among the public and the political establishment, to achieve significant reforms. But the capacity for these goals disappeared as tensions increased between influential groups, and as popular support for the government declined.

The fragmentation of President Zelenskyy’s influence was noticeable at both the national and local levels of governance. While in 2019, Sluha Narodu (“Servant of the People”)—the pro-presidential faction in the Verkhovna Rada, Ukraine’s parliament—had adopted legislation in a fast and unified manner (aka “turbo mode”), in 2020, consensus in the decision-making process was increasingly based on ad hoc coalitions. Procedural mistakes during the Rada’s “turbo” period made it easy to revoke the legislative basis for reforms, while hampering the consensus-building needed for new legislation. At the local governance level, elections in October cemented the power of regional elites, where mayor-led parties and political projects of oligarchs gained substantial representation in many regional councils. The central authorities had difficulty enforcing their decisions, as demonstrated when mayors challenged or sabotaged quarantine restrictions in court, sometimes forcing the government to give concessions. The informal power of large financial-industrial groups (FIGs) became evident when the president implored these enterprises to lead the pandemic relief efforts in their respective regional bases.1

The local elections on October 25 put additional pressure on authorities to advance decentralization and finally reach consensus on the new administrative division of the country. Despite some local opposition, administrative-territorial reform has been pushed to avoid overlapping jurisdictions in about 100 traditional districts and new territorial communities (municipalities) after the municipal elections. Communities maintained fiscal autonomy from the district and regional budgets. Rules of succession between old and new administrative units have been set. These actions helped to avoid a collapse in public service provision after the municipal elections but failed to clarify the confusion between state competences and those of local governments, especially at the district level.

The negotiations over constitutional amendments and legislation set to clarify competences of state administrations and elected councils revealed areas of increasing leverage by local elites due to the advancing decentralization reform. After backlash to the president’s amendments in 2019, which failed to incorporate local government input, the central authorities launched an unprecedented, inclusive consultation process in January; this effort comprised thematic working groups, rounds of regional negotiations, and consensus-based decisions, and it continued online during the pandemic.2 Similarly, open consultations were ongoing during the year over new competences for local self-government and state administrations.

In addition to pushing the decentralization reform, the October local elections were important for Ukraine’s democratic governance since they tested the new Electoral Code, which improved the electoral process through open party lists, inclusive gender quotas for candidate lists, and revised sanctions for electoral offenses. The option to change one’s electoral address now enables internally displaced persons (IDPs) de facto to vote. Still, limits on fair elections remained: political parties increased their leverage in local governance through a new power to recall their deputies from local councils (“imperative mandate”), while a new requirement that candidates must accumulate a certain quota of votes in order to move up party lists would limit the open-list principle. Although the overall assessment of the October election process was positive, misuse of administrative resources, vote buying, and unregulated political advertising posed challenges for the conduct of free and fair elections.

Apart from challenges within the country, Ukraine’s democratic consolidation is also complicated by the insecurity that Russia poses through its military aggression in Donbas and continued occupation of Crimea.3 For example, Ukraine aspires to shield itself from Russian disinformation, yet the relevant draft law “On disinformation” infringed on media freedom and was abandoned. Similarly, the Zelenskyy administration faces polarized public opinion on a possible solution to the armed conflict. While the growing veteran community, their families, and citizens with patriotic sentiment increasingly protest the president’s conflict resolution strategy, there is a sizeable proportion of those who would now accept some form of a peace deal that ends the war.4

The Ukrainian civic sector proved anew to be a strong pillar under challenging circumstances. Civil society organizations (CSOs) and volunteers have been critical to cushioning the negative impacts of the COVID-19 pandemic. They initiated public-private partnerships and large-scale informal mobilizations to support at-risk groups and medical workers. Civil society demonstrated resilience in coping with the ramifications of Russian aggression by protecting the rights of IDPs and veterans, and facilitating community dialogue.5 The state does not create legal obstacles for CSOs, and there were slight improvements in the rules for public funding and taxation. At the same time, there are instances of persecution of civic activists, including physical attacks, intimidation, and damage to property. In fact, journalists experienced physical attacks at the same rate as in the previous year,6 yet investigations of such cases were ineffective or nonexistent. With the change of government, the tone in interaction between CSOs and the authorities is gradually shifting from dialogue to dissent.

Media in Ukraine remained pluralistic and free from state pressure in 2020. Media outlets are, however, significantly influenced by the financial support and political agendas of their owners. The television market is highly concentrated and influenced by six media holdings, which draw 71 percent of the country’s viewing audience. Yet television is losing its popularity in favor of social media and news websites. Several sites, such as VoxUkraine and texty.org.ua, offer quality data journalism, while the online media Ukrainska Pravda, Hromadske.ua, and several others do independent reporting. At the same time, numerous online media and press, especially at the local level, do not provide their audiences with diverse opinions and independent editorial content.7 With internet usage reaching 90 percent of citizens in the country, disinformation is widespread and far fewer citizens are capable of detecting it. Disappointed, they may end up refraining from consuming news at all.8

There are positive tendencies in Ukraine’s fight against grand corruption, but also increasing resistance from the judicial branch. The National Agency on Corruption Prevention (NACP) has been reformed, and the National Anti-Corruption Bureau (NABU) continued investigations of high-level corruption9 while improving coordination with the Specialized Anti-Corruption Prosecutor’s Office (SAPO). Compared to previous years, when investigations were mostly obstructed in the courts of general jurisdiction, the specialized High Anti-Corruption Court (HACC) demonstrated a real prosecution of corruption in 2020 by delivering its first convictions resulting in sentences.

Investigations and convictions of corruption increasingly involve judges, as well as managers of state-owned enterprises and politicians. Among ongoing top investigations, NABU pressed charges against several judges of the Kyiv District Administrative Court (KDAC), the court of first instance in reviewing appeals against decisions by public authorities. NACP detected illegal assets in the declarations of judges of the Constitutional Court. These accountability efforts backfired on the entire anticorruption infrastructure and led to a constitutional crisis when the Constitutional Court proclaimed the appointment of Artem Sytnyk as head of the independent NABU unconstitutional, challenged the constitutionality of HACC itself, and, in October, abolished asset declarations by public officials.

Looking forward, the Constitutional Court’s discrediting of reform-driven laws and appointments by ruling them unconstitutional poses a serious threat in several ways. The judiciary has revealed itself to be an unpredictable player that can act beyond the particularistic economic interests of judges. It also risks undermining the conditionality of macro-financial assistance by the IMF and the European Union’s visa-free regime, which Ukraine relies upon to avoid a deep political and economic crisis, especially during the global pandemic. The current constitutional crisis provides an opportunity to finally reform the judiciary at its base, a prospect that has popular support. However, the increasing fragmentation of the Sluha Narodu party and decreasing popularity of President Zelenskyy restrict the ability of political leadership to introduce substantial changes.

 
National Democratic Governance 1.00-7.00 pts
Considers the democratic character of the governmental system; and the independence, effectiveness, and accountability of the legislative and executive branches. 2.50 / 7.00
  • Ukraine’s national government institutions, which saw a broad reshuffle by the president in 2020, made little democratic progress and were further shook by the COVID-19 pandemic.10
  • In March, President Zelenskyy reorganized key political staff. He replaced the head of the President’s Office, Prosecutor General, and rearranged the entire executive branch, which led to backsliding on reforms11 in finance and customs services,12 healthcare,13 and education.14 The impetus for these changes was a leaked discussion in which former prime minister Oleksiy Honcharuk was heard to undermine the president’s overall competence in economic matters.15 The change of government took place in parallel with an extensive information attack on Ukraine’s pro-Western reforms, orchestrated by media owned by oligarchs Viktor Medvedchuk and Ihor Kolomoisky.16
  • The president’s new appointments were controversial and point to an informal coalition of several groups of influence in his Sluha Narodu, “Servant of the People” party.17 Although the new prime minister, Denys Shmyhal, is considered a good manager, some observers are cautious that his appointment may facilitate the involvement and interests of the oligarch Rinat Akhmetov. Several new ministers are associated with the interests of Kolomoisky.18 Arsen Avakov, the influential interior minister, remained in his position despite public protests demanding his resignation.19
  • The most criticized personnel change was the dismissal of Prosecutor General (PG) Ruslan Riaboshapka. Systemic reforms had taken place in the PG Office under his leadership wherein all prosecutors were subject to a review, with fewer than half passing.20 Yet the president stated that he had dismissed Riaboshapka for insufficient action on fighting corruption in the PG Office. Iryna Venediktova replaced him, a move that watchdog organizations predicted would usher in a wave of “odious appointments” as former lustrated prosecutors (fired for corrupt behavior) repopulated their old offices under her patronage.21
  • To manage the country’s healthcare shortcomings and economic downturn caused by the pandemic,22 Ukraine has relied on the IMF Stand-By Arrangement ($5 billion) and macro-financial assistance (€1.2 billion) from the European Union (EU).23 The conditions placed on these loans are land reform, restrictions on reprivatization of nationalized banks, and guarantees for a politically independent National Bank of Ukraine (NBU). The first two IMF conditions were formally met in 2020. The law on land reform, which created a land market that allows for selling agricultural property to Ukrainian citizens, was adopted in March.24 And the so-called anti-Kolomoisky law, adopted in May, prohibits reprivatization of nationalized banks and aims to solve legal disputes around the nationalized PrivatBank.25
  • In early 2020, the Verkhovna Rada, Ukraine’s parliament, under pressure from the president, hastily adopted a series of laws in the much-ballyhooed “turbo mode” legislative process.26 On the one hand, this practice pushed through a number of important reforms. On the other, the legislature’s procedural rules were often violated, opening the door for rolling back the reforms through corrupt courts. During the COVID-19 crisis and government reshuffling, the presumed one-party-majority of Sluha Narodu in the Rada succumbed to fragmentation.27 By year’s end, legislative decision-making was solidly characterized by ad hoc coalitions, including among Sluha Narodu members of parliament (MPs).
  • On January 16, the law abolishing MP immunity entered into force.28 This statute enables law enforcement agencies to take action against MPs accused of criminal offenses. The widespread problem of proxy voting became subject to criminal liability. While the Group of States Against Corruption (GRECO) of the Council of Europe (CoE) welcomes this initiative,29 some legal experts in Ukraine are critical of these measures, as the law’s vague wording increases the vulnerability of People’s Deputies (MPs) to the whims of the parliamentary majority.30 In February, the PG Office opened its first case investigating proxy voting.31
  • Against the backdrop of the central government’s insufficient response to COVID-19, regional elites increased their leverage. In March, the president exhorted the owners of large financial-industrial groups (FIGs), including oligarchs Rinat Akhmetov, Viktor Pinchuk, Ihor Kolomoisky, and Oleksandr Yaroslavsky, to fund the first regional relief measures according to the respective locations of their enterprises.32 Businesspersons even chaired the Anti-Crisis Headquarters in nine regions.33 The media interpreted these moves as confirmation of the weakness of Zelenskyy’s authority and the informal influence of FIG owners over “their” regions—and, by extension, the president.34
Electoral Process 1.00-7.00 pts
Examines national executive and legislative elections, the electoral framework, the functioning of multiparty systems, and popular participation in the political process. 4.50 / 7.00
  • The local elections, held on October 25, were important to Ukraine’s democratic governance for two reasons. First, they tested the implementation of the substantially revised Electoral Code. Second, the local elections took place in the new administrative-territorial units created during the decentralization reform.
  • The extensive electoral reform that entered into force in January 202035 brought several improvements to the electoral process, such as vote quotas that allow candidates to improve their position on “open party lists,” an inclusive gender quota for candidate lists, and revised sanctions for electoral offenses.36 Importantly, it became possible for Ukrainian citizens to change their electoral address, which de facto enabled Internally Displaced Persons (IDPs) to vote. There are however shortcomings in the election reform, such as insufficient mechanisms for resolving disputes and a lack of campaign finance oversight. Furthermore, media regulations are missing from the reform, and the OSCE/ODIHR recommendations on the appointment and replacement of election commission members is still unfulfilled.37
  • Undemocratic restrictions to electoral procedures were introduced in last-minute amendments to the Electoral Code in July.38 The code provides for two types of electoral systems in Ukraine: a majority system for small municipalities; and a proportional system with open party lists for regional and district councils, and municipalities with more than 10,000 voters (down from 90,000). This setup restricts the right of independent candidates to run for elections.39 The open lists are useful only to candidates who achieve 25 percent of the electoral quota, while the remaining candidates depend on their list position set by the political party.40 Finally, the amendments introduced an “imperative mandate” that increases political party influence on local councils and enables the recall of elected deputies by signature collection based on a vague rationale.41
  • Implementation of the new electoral system delivered contradictory results. On the one hand, it empowered about half of the candidates across Ukraine to move up the party lists.42 The gender quota allowed more women to enter local councils, even though they are still a minority.43 On the other hand, some deputies entered councils with minimal voter support, while broadly supported candidates may have lost their elections due to membership in an unpopular party.44
  • The local elections took place under the challenging circumstances of COVID-19 and the ongoing conflict in Eastern Ukraine. Turnout was 37 percent,45 which is 10 percentage points lower than in 2015. Almost 500,000 residents of 18 districts situated along the contact line under Ukrainian control in the Donetsk and Luhansk regions did not vote. The civil-military administration warned that it could not ensure the safety of residents during elections in these districts, issuing an official announcement that was heavily criticized by the civic sector for its nontransparent assessment criteria.46
  • The assessment of the electoral process was predominantly positive, with some exceptions. Candidates were free to campaign, although misuse of administrative resources by incumbents was widespread.47 Private media were mostly biased and provided unbalanced coverage.48 On election day, the OSCE/ODIHR’s limited observation mission reported a “calm, well-organized and transparent” process in which procedures were “mostly followed.”49 The observers highlighted the professional and efficient administration of the elections by the Central Election Commission, while territorial commissions were often politicized. During the elections, allegations of direct and indirect vote buying were widespread, although the new Electoral Code provides criminal liability for such offenses.
Civil Society 1.00-7.00 pts
Assesses the organizational capacity and financial sustainability of the civic sector; the legal and political environment in which it operates; the functioning of trade unions; interest group participation in the policy process; and the threat posed by antidemocratic extremist groups. 5.00 / 7.00
  • In 2020, the Ukrainian civic sector remained vibrant albeit underinstitutionalized, as civil society demonstrated a remarkable capacity for large-scale mobilization in the face of a global pandemic. Despite the lack of state support and continued intimidation of activists, the sector remains the principal guardian of Ukraine’s democratic development. 50
  • Although they express a high level of trust in civil society organizations (CSOs) and volunteers,51 citizens are mostly disengaged from their activities.52 Ukrainians engage in civic life within their communities, often bypassing organizations.53
  • Civil society successfully mobilized in response to COVID-19.54 In March–April, a transformative trend towards public-private partnerships emerged in regions55—namely, Lviv,56 Odesa,57 Kyiv,58 Poltava,59 Cherkasy60—with local authorities, volunteers, and businesses61 joining efforts to provide medical supplies and personal protective equipment (PPE) for hospitals.62 Solidarity initiatives emerged for supporting risk groups and the needy,63 as well as helping to transport medical workers during lockdowns.64
  • A new term, sorosiata (“lackeys of Soros”), was publicly coined in January to target activists and reformers who have ever been engaged with Western or Western-funded organizations.65 The organized campaign’s figureheads were former affiliates and political experts associated with the Party of Regions,66 who pushed bills equating civil society advocacy with lobbying, and restricting foreign-funded organizations as “foreign agents,” though none of these legislative proposals had been considered by year’s end.67
  • After the dismissal of former prime minister Honcharuk and his government, the access of civic actors to national authorities declined.68 Nevertheless, civil society continued stewarding the anticorruption and judicial reforms. On October 30, activists responded to the Constitutional Court’s decision to dismantle the country’s anticorruption infrastructure with a public protest,69 and then proposed workable solutions to solve the ensuing constitutional crisis.70
  • In early September, 77 organizations established the initiative “Elections without Sexism.”71 It raised awareness of the rights of female candidates and documented the abuse of gender quotas and incidents of sexism in the local elections campaign.72
  • Over May–June and September, despite continuing pressure from local far-right groups,73 LGBT+ communities held Pride events in Kyiv,74 Kharkiv,75 Kherson, and Mykolayiv,76 and, for the first time, in Zaporizhzhia.77 These events faced no restrictions from local governments, took place under police protection, and with no major incidents. However, in Odesa, the far-right organization “Tradition and Order” obstructed the Pride march on August 30.78
  • As of October, there were 74 cases of persecution of activists, including physical attacks, intimidation, and damage to property.79 Anticorruption work,80 protecting LGBT+ rights, and environmental activism81 remained the most dangerous civic sector activities.
  • On March 3, the government earmarked 20 percent of state funding for organizations serving persons with disabilities to be distributed on a competitive basis. This welcome change, however, was offset by a reduction in state funding for such organizations by almost a third.82
  • In 2020, a series of demonstrations indicated the growing dissatisfaction of parts of civil society with the Zelenskyy administration’s response to Russian military aggression in Donbas. On February 20,83 May 24,84 July 27,85 and September 10,86 activists of the “Movement against Capitulation” called upon the president to refuse Russia’s conditions for peace, such as designating currently occupied parts of Donbas with a special status, or accepting the representatives of occupied Donbas on equal footing with those of Kyiv during peace talks. On August 24, an alternative celebration of Independence Day, organized by the veteran-military community in response to timid official events,87 gathered 50,000 veterans, volunteers, and their families, and at least as many spectators.88 Veteran marches were also held in Lviv, Dnipro, Zaporizhzhia, and Kharkiv.
Independent Media 1.00-7.00 pts
Examines the current state of press freedom, including libel laws, harassment of journalists, and editorial independence; the operation of a financially viable and independent private press; and the functioning of the public media. 3.75 / 7.00
  • While physical attacks against journalists continued in 2020, and new laws were considered to regulate both conventional and online outlets, Ukrainian media remained pluralistic though significantly influenced by the financial support and political agendas of their owners.89
  • The television market is highly concentrated, with six media holdings accounting for 71 percent90 of Ukraine’s TV audience. Many top channels belong to oligarchs, such as Ihor Kolomoisky, Petro Poroshenko, Viktor Pinchuk, and Viktor Medvedchuk.91 The press and online media markets are diverse,92 with numerous privately owned regional outlets.93
  • The year saw a decrease in news consumption across all channels, while social media and (regional) online media strengthened their positions. As internet usage reaches 90 percent, citizens have begun to get most of their news from social media (62 percent), followed by TV (52 percent), and news websites (48 percent). Print media usage has nearly halved since 2019. Trust in TV continued to decline due to misinformation and political bias. The public broadcaster Suspilne, on the contrary, doubled its audience to 4 percent94 as citizens have increasingly come to trust its unbiased reporting.95
  • Suspilne effectively received only 60 percent of its entitled funding in 2020.96 This marks the fourth year of underfunding, which delayed content development and technological upgrades. The 2021 budget, adopted on December 15, continues the trend to underfund the broadcaster at 82 percent of its entitled funding.97
  • Local media, despite large-scale privatization completed in 2019, do not reflect a diversity of opinions. Outlets often follow the priorities of local authorities,98 publish little original content, and poorly differentiate editorial content from advertising.99
  • As of December, the Institute of Mass Information had recorded 229 cases of violations of freedom of speech (compared to 243 in 2019), and 172 of these involved physical attacks on journalists.100 For instance, the investigative journalists of Skhemy, a public television program on corruption, and the channel UA:Pershyi (UA:First) were systematically threatened. On August 8, Skhemy journalist Mykhailo Tkach reported an attempt to wiretap his home, and on August 16, a car used by journalists was set on fire.101 In July, two female independent journalists, Lyubov Velychko and Katerina Sergatskova, received threats of violence online in connection to their reporting.102
  • On February 5, the Security Service of Ukraine (SBU) searched the headquarters of 1+1 TV and the homes of two of its reporters after the channel broadcast a leaked recording of PM Honcharuk.103 On May 13, Slidstvo.info journalist Anna Babynets was interrogated by the police for sending a request for information to a Sluha Narodu MP, Oleksandr Dubinsky.104 On October 28, the Rada, for the first time since the Revolution of Dignity, denied accreditation to Slidstvo.info, which monitors MP integrity, along with 18 other media outlets.105 A few days later, following outcry from the media community,106 the decision was revoked with help from the parliamentary speaker, Sluha Narodu MP Dmytro Razumkov.107
  • On July 1, the parliamentary committee on humanitarian and information policy approved an extensively debated draft media law.108 On the one hand, the draft law envisages empowering the national regulator over broadcasters (especially relevant in situations like the “sorosiata” anti-Soros campaign)109 and also attempts to introduce coregulation.110 On the other hand, the proposed law contains problematic provisions, such as extending the national regulator’s oversight power beyond broadcasters to all information-disseminating outlets, and the authority to fully ban a media outlet as a penalty for illegal content.111 Despite international112 and domestic113 criticism, these provisions had not been amended by year’s end, and the draft law still awaits consideration.
Local Democratic Governance 1.00-7.00 pts
Considers the decentralization of power; the responsibilities, election, and capacity of local governmental bodies; and the transparency and accountability of local authorities. 3.25 / 7.00
  • Although progress was made in Ukraine’s administrative-territorial reform, including safeguards for the fiscal autonomy of local self-governments, the system itself remained unbalanced in 2020 as local-government revenues dropped amid the COVID-19 crisis. Regional and local elites gained leverage in the discussions on decentralization reform and cemented their power following the October municipal elections.114
  • In 2020, Ukraine adopted a new system of administrative-territorial division.115 As of June 12, the third tier of governance consists of 1,470 territorial communities (hromadas).116 About 1,000 communities had already amalgamated voluntarily by the end of 2019.117 The remaining communities were administratively reorganized into territories, sometimes over the objections and opposition of residents.118 In mid-July, 136 new districts (rayons) were formed in a hasty and non-inclusive process despite fears by some of lost autonomy at the community level.119 Yet new district divisions were necessary to avoid duplication of powers due to matching jurisdictions of new consolidated communities and old districts in the aftermath of the municipal elections.120
  • Communities received guarantees of fiscal autonomy from both district and regional levels with amendments to the Budget Code on September 17.121 This is a step towards minimizing the leverage of local power groups over consolidated communities.122 On December 6, a law clarifying the rules of succession of property and financial obligations to newly formed territorial units from their predecessors123 came into force, thus providing material resources and competences for the provision of public service.124
  • State funding for local self-government decreased by 44 percent in 2020, even as local institutions were tasked with additional COVID-19 competences.125 Although a dramatic reduction, these changes are an improvement compared to the original proposal by the government, which had envisaged a 66-percent decrease in state transfers and an elimination of regional development funds.126 All political factions vehemently rejected the original proposal.127 On September 14, the government mandated local budgets to finance COVID-19 measures during the local elections, characterizing this responsibility as their standard competence against the spread of infectious disease.128 Local governments criticized this decision, claiming the national government is responsible for election-related expenses.129
  • Local governments enhanced their operational transparency and introduced participatory innovations during the year. As of July, the participatory budget—a mechanism that allows residents to propose and vote on projects for implementation—was practiced in at least 100 territorial communities and has engaged input from 1.2 million residents. During the year, the regional authorities of Mykolaiv, Lviv, Odesa, Vinnytsia, and Kharkiv joined the All-Ukrainian participatory budget. On May 14, the government earmarked UAH 30 billion from the State Fund for Regional Development for the All-Ukrainian participatory budget.130
  • On December 17, Hennadiy Kernes, mayor-elect of Ukraine’s second-largest city, Kharkiv,131 died from complications of COVID-19. Because of the strategic and economic importance of this city located close to the Russian border, as well as its brief history of separatism in 2014, the nature of political settlement in Kharkiv will be one of the major issues in national politics in 2021.132 The Rada had yet to schedule elections for the new mayor by year’s end.133
  • Mayors of regional centers often challenged or sabotaged the COVID-19 measures mandated by the central government. This dynamic culminated two weeks after the introduction of “weekend lockdowns” in November, when the government backtracked the mandate, hinting at a lack of cooperation from local authorities.134 At the same time, the central government began consulting with local and regional authorities on new public safety measures.135
  • In January, an inclusive consultation process began elaborating changes to align the constitution with the outcomes of the decentralization reform, which will continue into 2021.136 These consultations, involving civic experts,137 associations of local authorities,138 MPs, and the government, are ongoing with regard to two new legislative proposals that further delineate the competences of local state administrations and local self-government.139
Judicial Framework and Independence 1.00-7.00 pts
Assesses constitutional and human rights protections, judicial independence, the status of ethnic minority rights, guarantees of equality before the law, treatment of suspects and prisoners, and compliance with judicial decisions. 2.25 / 7.00
  • In 2020, the judiciary posed a serious threat not only to major reforms but also to Ukraine’s economy and political security. Intra-institutional conflict escalated into a full-blown constitutional crisis by the end of the year. In August, 77.5 percent of citizens did not trust the judiciary, making it one of the country’s least trusted institutions.140
  • Reforms aimed at changing the procedures for selecting and reassessing judges were ongoing during the year but faced immense judicial opposition.141 In February, the High Council of Justice (HCJ), which appoints and dismisses judges, blocked the implementation of a 2019 law establishing a special Commission on Integrity and Ethics, and dissolved the High Qualification Committee of Judges.142 The HQCJ was dissolved without the creation of a corresponding new body, resulting in a justice system that now lacks 25 percent of its former human resources; these serious staffing issues will undoubtedly hamper the work of the judiciary as well as prevent lustration of judges who violate ethics standards.143 In March, the Constitutional Court ruled outright that the provisions of the 2019 law are unconstitutional.144 Moreover, a comprehensive effort to clear the justice system of corrupt judges failed.
  • On October 27, the Constitutional Court (CC) declared several provisions of the “Law on the Prevention of Corruption” as unconstitutional.145 This decision prohibits gathering, storing, and publishing e-declarations as well as monitoring the lifestyle of public officials; it also restricts open access to the register of e-declarations and abolishes criminal liability for providing false information on assets. The CC further interpreted that the authority of the National Agency on Corruption Prevention (NACP) to verify asset declarations should be a responsibility of judicial self-governance. In this dubious argument, the CC thereby claimed that ensuring judicial independence was the main rationale for abolishing asset declarations for all public officials. Leading CSOs roundly condemned the court’s decisions.146 The international community stressed that maintaining anticorruption infrastructure is the core requirement of the EU visa-free regime and macro-financial support for Ukraine, which is now undermined by the court’s actions.147 The CC decision was made in a closed session, while some presiding judges had conflicts of interest due to ongoing investigations into their undeclared assets.148 Four CC judges opposed the court’s decision.
  • The CC’s decisions were broadly criticized by the international community, including the Venice Commission, for their vague reasoning and potentially negative impact on the prevention and investigation of corruption.149 Although the Rada restored the obligation of public officials to declare their assets, and the NACP’s authority to check them, experts and civil society activists criticized the weak penalty for violating this obligation.150 The judiciary’s institutional conflict was further exacerbated by the presidential decree dismissing the head of the Constitutional Court, Oleksandr Tupytskyi, in December.151
  • In July, the National Anti-Corruption Bureau (NABU) charged several judges of the Kyiv District Administrative Court (KDAC)152 with organized crime, usurpation of power, bribery, and unlawful interference with government officials.153 KDAC has a unique position in the system of administrative courts, as it considers disputes with national authorities and can overturn political decisions. Several decisions by KDAC in 2020 were highly disputed in the wider society since they ruled in favor of vested interests and against reform-oriented politicians.154 Furthermore, on November 16, KDAC overturned the ruling to arrest former president Viktor Yanukovych in the case of violent measures ordered against Maidan protesters on February 18–20, 2014.155
Corruption 1.00-7.00 pts
Looks at public perceptions of corruption, the business interests of top policymakers, laws on financial disclosure and conflict of interest, and the efficacy of anticorruption initiatives. 2.25 / 7.00
  • In 2020, special anticorruption agencies reached an optimal working mode that enabled effective investigation and conviction of corruption, including high-level public officials. This positive trend was challenged, though, primarily by the judiciary.
  • Beginning in June, the High Anti-Corruption Court (HACC) passed its first verdicts. In 6 of 15 convictions, the defendants were given sentences of 3–8 years. Among the convicted individuals were MPs, directors of state enterprises, a judge, and an investigator of the prosecutor’s office.156 Multiple cases against high-level corruption are ongoing.
  • However, interference with the work of the HACC is increasing. In October, the Constitutional Court challenged the constitutionality of the HACC. Yet an independent expert panel concluded that the HACC does not violate the Ukrainian constitution.157 In October, a panel of HACC judges, working on an embezzlement case involving the state-owned enterprises Energoatom and VostGOK, reported interference by attorneys of the HCJ and the Prosecutor General.158 Even more serious instances of apparent intimidation occurred when, on October 7, an explosion occurred in the lead judge’s regular parking spot.159
  • By June, the independent NABU and Specialized Anti-Corruption Prosecutor’s Office (SAPO) showed convincing results from corruption investigations in both the public and private sectors.160 On June 15, NABU detained three persons who had offered a bribe of $5 million to the heads of NABU and SAPO to close the investigation against former minister of ecology and natural resources Mykola Zlochevsky.161
  • Against this backdrop of successful investigation and prosecution of grand corruption, the pressure on special anticorruption agencies dramatically increased.162 Early in the year, the Rada attempted to pass a series of controversial laws163 aimed at dismissing the head of NABU, Artem Sytnyk. On August 28, the Constitutional Court ruled the NABU appointment of Sytnyk unconstitutional.164 According to independent legal experts, Sytnyk may remain in his post even after the court’s verdict, and his orders remain valid,165 but the government must establish a new procedure for appointing NABU leadership.166
  • The head of the independent SAPO, Nazar Kholodnytskyi, resigned on August 21, although his term was not up until December.167 Previously, the new Prosecutor General, Iryna Venediktova, had initiated an investigation of Kholodnytskyi and submitted a complaint to the disciplinary commission.168
  • The National Agency on Corruption Prevention (NACP) was reshuffled in early 2020, which significantly improved the effectiveness of the entire infrastructure of special anticorruption bodies. The new team, under the direction of Oleksandr Novikov, assumed work in January. The Civic Council at the NACP,169 elected in an open public voting procedure, monitors the independence and effectiveness of the agency, and participates in developing anticorruption strategy.170
  • The Law on Protection of Whistleblowers171 came into force during the year. The statute fulfills the main requirements of the EU directive on the protection of whistleblowers,172 namely, protection of labor rights and protection against criminal prosecution. In 2020, the NACP reported 15 successful lawsuits on issues of whistleblower protection.173
  • After three years without an updated anticorruption strategy, on November 5, the Rada adopted the Anti-Corruption Strategy draft law for 2020–24 in the first reading,174 with the main goal of ensuring integrity of justice in Ukraine.175

Authors:

Dr. Oksana Huss is a researcher in Political Science at Bologna University, Italy. The topics of her expertise include social movements against corruption and the role of ICTs, as well as interdisciplinary theories and methods of corruption research. Huss provides consultancy on open government and anticorruption to the Council of Europe, European Union, UNESCO, and UNODC. She is cofounder of the Interdisciplinary Corruption Research Network (ICRNetwork.org).

Oleksandra Keudel is a PhD candidate at the Freie Universität Berlin (Germany), and a research consultant for international organizations and Ukrainian nongovernmental organizations. Her major research interest is local citizen participation, knowledge production, and civil society–state relations with a special focus on hybrid regimes and Ukraine. She also has managed international projects in the Ukrainian private sector as well as in the field of civil society development in Sweden and Germany.

Footnotes

ecoi.net description:
Report on democratisation (electoral process, civil society, independent media, governance) and rule of law (corruption) in 2020
Country:
Ukraine
Source:
Freedom House (Author)
Original link:
https://freedomhouse.org/country/ukraine/nations-transit/2021
Document type:
Periodical Report
Language:
English
Published:
28 April 2021
Document ID:
2050462

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