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The Tymoshenko Verdict and Ukraine’s European Future

Western Policymakers Need to Focus on the Institutional Rot in Europe’s Eastern Neighborhood

SOURCE: AP/Efrem Lukatsky

Former Ukrainian Prime Minister Yulia Tymoshenko speaks during her trial at the Pecherskiy District Court in Kiev, Ukraine, on October 11, 2011.

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Yulia Tymoshenko, Ukraine’s former prime minister and current opposition leader, was sentenced to seven years in prison by a Kiev court on Monday. Tymoshenko was found guilty of abuse of power for signing the January 2009 governmental directives to conclude gas agreements with Russia, instead of seeking approval from the Cabinet of Ministers of Ukraine. The charges are a farce for a number of reasons. But from the start, the proceeding against her has been the manifestation of a political vendetta, not the rule of law, so her conviction should come as little surprise. Unsurprising as well is the weakness of the Ukrainian judiciary, which has a long history of carrying out the will of those in power.

What is surprising is the depth of shortsightedness of those behind the trial, widely assumed to be led by President Viktor Yanukovych. The conviction of Tymoshenko will only serve to deepen the already-gaping divides in the Ukrainian polity. Yanukovych cannot be the president of all Ukrainians if he locks up the person that more than 40 percent of them voted for less than two years ago.

Surprising, too, are the expressions of surprise at the verdict by Western observers and governments alike. The fact is that the prospects for substantive European integration in Ukraine hit a brick wall long ago. The narrative, however, has lagged behind.

Ukraine has made remarkable strides in its 20 years of independence, but even during the period of Orange rule from 2005 to 2009, it was far from a consolidated democracy with strong political institutions. What made Ukraine different from the post-Soviet norm was a combination of a more civically active population and strong political cleavages (mostly on regional lines) that produced what one analyst described as “pluralism by default”: “cases in which the proximate source of political competition is less a robust civil society, strong democratic institutions or democratic leadership and much more the inability of incumbents to enforce authoritarian rule.”

Indeed, Tymoshenko went from prime minister to opposition leader through a reasonably free and fair election. But the fact that Yanukovych (who won the vote by only 3.5 percent) was able to then use the judiciary to eliminate her as a potential political challenger points to something we should have already known: The Ukrainian courts are regularly manipulated by their political patrons in the executive branch.

In 2007, for example, then-President Viktor Yushchenko, widely touted as a democrat, abolished a court that annulled one of his decrees on constitutional grounds. After three days, he reversed that decision, but an hour later had second thoughts and decided to create two new courts to replace the one that had ruled against him, and one of these gave him the result he wanted. To expect a strong judicial branch to have emerged under such conditions would have been unrealistic, to put it mildly.

With such weak political institutions, it was wrong to call “Orange” Ukraine a democracy without adjectives, as opposed to a nascent democracy, partial democracy, or a political system with important democratic components. Yet Western leaders and analysts consistently did so, which apparently blinded many to the major shortcomings of Ukraine’s political system, some of which arguably got worse in the “Orange” period.

It would be one thing if a country far away from the West were so consistently mislabeled. Ukraine is in Europe, though, and it now borders both European Union and NATO member states. Policymakers in both organizations and their members’ capitals therefore operated on the assumption that Ukraine, like its former communist neighbors to its West, would pursue a path of reform that could eventually lead it to be a candidate for membership in Euro-Atlantic institutions.

The Tymoshenko verdict is just the latest indication that the transition paradigm that worked so well in Central and Eastern Europe after communism is simply not working farther east.

It is worthwhile to think back to the common features of those inspiring transformations in countries such as Poland and the Czech Republic. For the most part, they all shared a broad societal and elite consensus on membership in the Euro-Atlantic institutions and the historical mission of returning to Europe. It was this consensus that gave politicians space to make difficult yet decisive market reforms and to dismantle the communist state apparatus. They also shared genuinely pluralistic political systems with robust institutions, and active civil societies that play important roles in public life.

Ukraine, along with all of the non-Baltic former Soviet republics, has not been so lucky. Elites there have little interest in undertaking the kind of reforms necessary for European integration, which would require them to relinquish their stranglehold on politics and control over the economy. The society is pro-European in so far as that implies European living standards and visa-free travel, but is not ready to radically transform itself like its Western neighbors did. Civil society is vibrant but weak and politically marginalized.

Despite these differences, European and U.S. engagement with Kiev has largely been based on providing a membership path or some version of “membership lite.” Indeed, the Tymoshenko verdict comes as the European Union is concluding negotiation of a Deep and Comprehensive Free Trade Agreement, or DCFTA, as part of a broader EU-Ukraine Association Agreement that includes visa liberalization and other measures. The DCFTA is no typical free trade deal—it requires approximation of EU laws and standards and therefore massive institutional change in Ukraine. Essentially, it requires Ukraine to take the steps that aspiring members did, yet withholds the promise of membership.

Clearly, the Tymoshenko verdict will make signing the deal politically difficult, if not impossible. But it should also occasion a bit of a rethink in Brussels and Washington. Why is Europe integrating with a country that is not reforming and is arguably regressing?

Some argue that if Europe doesn’t proceed with integration with Ukraine, Russia will, and that’s reason enough. Others contend that the DCFTA will lay the groundwork for long-term change in Ukraine by providing an external reformist pull to substitute for the absence of an internal push.

Both justifications for the policy represent radical departures from previous practice in post-communist Europe. Earlier integration rounds were supply-driven: aspirant countries transforming themselves through often painful reforms (the internal push that Ukraine lacks).

Indeed, institutional membership for new aspirants was intended to, first and foremost, facilitate this transformation from command economy and party state to secure market democracies. It was a tool, both in terms of the incentive that membership represented to elites and the deep engagement of the accession process with its benchmarks, monitoring, and so on. It was not an end in itself; after all, states can reach European standards without joining Euro-Atlantic institutions. Norway, for example, is certainly a European country despite not being a member of the European Union, and Finland is a secure democracy but not a NATO member state.

What is needed for Ukraine, as well as Moldova, Georgia, and other states of the former Soviet region, is a renewed focus on the societal building blocks for the successful transformations in Central and Eastern Europe, and less focus on current elites. Nurturing the “grass roots” of reform—future generations—and the micro-level institutional development—such as the courts—are the only way to break through the post-Soviet morass of corrupt, authoritarian rule. Washington and Brussels must look beyond elections and individual leaders to the institutional rot that has come to the fore with the Tymoshenko verdict. Fixing it won’t be easy or quick, but it is a prerequisite if we want Ukraine to be a part of Europe.

Samuel Charap is the Director for Russia and Eurasia and a member of the National Security and International Policy team at the Center for American Progress.

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