[Joint House and Senate Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
UKRAINE'S UPCOMING ELECTIONS:
A PIVOTAL MOMENT
=======================================================================
HEARING
before the
COMMISSION ON SECURITY AND COOPERATION IN EUROPE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
MAY 17, 2012
__________
Printed for the use of the
Commission on Security and Cooperation in Europe
[CSCE 112-2-7]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via http://www.csce.gov
____________
U.S. GOVERNMENT PUBLISHING OFFICE
94-842 PDF WASHINGTON : 2015
_________________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office,
Internet:bookstore.gpo.gov. Phone:toll free (866)512-1800;DC area (202)512-1800
Fax:(202) 512-2104 Mail:Stop IDCC,Washington,DC 20402-001
COMMISSION ON SECURITY AND COOPERATION IN EUROPE
LEGISLATIVE BRANCH COMMISSIONERS
HOUSE SENATE
CHRISTOPHER H. SMITH, New Jersey, BENJAMIN L. CARDIN, Maryland,
Chairman Co-Chairman
JOSEPH R. PITTS, Pennsylvania SHELDON WHITEHOUSE, Rhode Island
ROBERT B. ADERHOLT, Alabama TOM UDALL, New Mexico
PHIL GINGREY, Georgia JEANNE SHAHEEN, New Hampshire
MICHAEL C. BURGESS, Texas RICHARD BLUMENTHAL, Connecticut
ALCEE L. HASTINGS, Florida ROGER F. WICKER, Mississippi
LOUISE McINTOSH SLAUGHTER, SAXBY CHAMBLISS, Georgia
New York MARCO RUBIO, Florida
MIKE McINTYRE, North Carolina KELLY AYOTTE, New Hampshire
STEVE COHEN, Tennessee
EXECUTIVE BRANCH COMMISSIONERS
MICHAEL H. POSNER, Department of State
MICHAEL C. CAMUNEZ, Department of Commerce
ALEXANDER VERSHBOW, Department of Defense
[ii]
UKRAINE'S UPCOMING ELECTIONS:
A PIVOTAL MOMENT
----------
May 17, 2012
COMMISSIONERS
Page
Hon. Christopher H. Smith, Chairman, Commission on Security and
Cooperation in Europe.......................................... 1
Hon. Michael Burgess, Commissioner, Commission on Security and
Cooperation in Europe.......................................... 2
Hon. Steve Cohen, Commissioner, Commission on Security and
Cooperation in Europe.......................................... 10
WITNESSES
Yehvenia Tymoshenko, daughter of imprisoned former prime minister
Yulia Tymoshenko............................................... 3
Stephen B. Nix, Director, Eurasia Division, International
Republican Institute (IRI)..................................... 5
David Kramer, President, Freedom House........................... 6
Katie Fox, Deputy Director, Eurasia, National Democratic
Institute (NDI)................................................ 6
Gavin Weise, Deputy Director, Europe and Asia, International
Foundation for Electoral Systems (IFES)........................ 7
APPENDICES
Prepared statement of Hon. Christopher H. Smith.................. 30
Prepared statement of Stephen B. Nix, Director, Eurasia Division,
International Republican Institute (IRI)....................... 31
Prepared statement of Katie Fox, Deputy Director, Eurasia,
National Democratic Institute (NDI)............................ 36
Prepared statement of Gavin Weise, Deputy Director, Europe and
Asia, International Foundation for Electoral Systems (IFES).... 38
(iii)
UKRAINE'S UPCOMING ELECTIONS:
A PIVOTAL MOMENT
----------
May 17, 2012
Commission on Security and Cooperation in Europe
Washington, DC
The hearing was held at 2 p.m. in room 1310, Longworth
House Office Building, Washington, DC, Hon. Christopher H.
Smith, Chairman, Commission on Security and Cooperation in
Europe, presiding.
Commissioners present: Hon. Christopher H. Smith, Chairman,
Commission on Security and Cooperation in Europe; Hon. Michael
Burgess, Commissioner, Commission on Security and Cooperation
in Europe; and Hon. Steve Cohen, Commissioner, Commission on
Security and Cooperation in Europe.
Witnesses present: Yehvenia Tymoshenko, daughter of
imprisoned former prime minister Yulia Tymoshenko; Stephen B.
Nix, Director, Eurasia Division, International Republican
Institute (IRI); David Kramer, President, Freedom House; Katie
Fox, Deputy Director, Eurasia, National Democratic Institute
(NDI); and Gavin Weise, Deputy Director, Europe and Asia,
International Foundation for Electoral Systems (IFES).
HON. CHRISTOPHER H. SMITH, CHAIRMAN, COMMISSION ON SECURITY AND
COOPERATION IN EUROPE
We do have a vote and a series of votes, and then Dr.
Burgess and I and the other members of the Commission will
start and go as far as we can before we have to rush to the
other vote, and then we'll come right back. So I apologize and
ask you to bear with that delay.
Welcome to this Helsinki Commission hearing on the October
28th parliamentary elections in Ukraine. Even though the actual
voting is still five months away, in the hope of--that matters
great can still be properly addressed, we believe it is
important to focus attention now. Ukraine's past four national
elections, two presidential and two parliamentary, have met
international democratic standards. They received positive
assessments from the OSCE-led international observation
missions and other international observers.
But given Ukraine's democratic backsliding under Viktor
Yanukovych, we still have reason to be concerned about the pre-
election climate and watchful for attempts to skew the
conditions in which the campaigns will be conducted.
The October 2010 elections, the local elections, and more
recently the March mayoral elections, were problematic, and
Ukraine's general backsliding is very troubling. We see it in
the independence of the judiciary, in corruption, tightening
controls over the media and harassment of NGOs. All these
things could also have a debilitating impact on the election
process.
Concerns are emerging that in addition to potential overt
voting day election-rigging, more subtle measures of
manipulation may already be taking place, such as putting
pressure on opposition candidates to not run or to switch
allegiances to the ruling regime's party. Equally
disconcerting--and I would say disgusting--is the unjust
imprisonment of political opposition leaders from Prime
Minister--former Prime Minister Tymoshenko to former Interior
Minister Yuri Lutsenko, removing their participation in the
elections and casting a shadow over the entire election
process.
Of course everyone remembers that last October, former
prime minister Tymoshenko was given a seven-year sentence on
Soviet-era specious charges of abuse of office in a highly
irregular judicial process, that nobody's buying, specifically
for signing a 2009 gas contract with Russia, allegedly without
approval from the cabinet of ministers. Unless she and other
senior foreign government officials are released from prison
and restored to their full potential and civil rights, the
October elections will, by the very fact of their imprisonment,
be tainted. The imprisonment of leading opposition figures
alone is so significant and so outrageous that they will make
it impossible for the international community to assess these
elections as having met international democratic standards.
These elections are a litmus test for Ukrainian democracy
of the degree and kind of democracy it still has. The election
process, including the pre-election environment--registration,
campaign voting, counting and tabulation--will tell us a lot
about Ukraine's future course. Will Ukraine continue sliding
towards authoritarianism or will it resume its path to
democracy?
Another factor here is that, in 2013, Ukraine will assume
the leadership of the OSCE, which makes it even more important
that these elections be conducted in line with OSCE standards
of freedom and fairness. If not, Ukraine's chairmanship itself
will be under a cloud.
As a long-time advocate of democracy, human rights and the
rule of law in Ukraine, I hope that the Yanukovych government
will not tear Ukraine away from its recent tradition of free
and fair national elections and will permit a genuinely
democratic election process, one in which political parties and
candidates compete on a level playing field, there exists
equitable media access, and the balloting is conducted in a
manner that instills confidence. And again, those who have been
imprisoned absolutely must be released. I'd like to now turn to
my friend and colleague Dr. Burgess, a fellow Commissioner.
HON. MICHAEL BURGESS, COMMISSIONER, COMMISSION ON SECURITY AND
COOPERATION IN EUROPE
Thank you, Mr. Chairman, I'll forgo an opening statement
because of the pendency of votes and I am anxious to hear from
our witnesses. I will just say that I've become increasingly
concerned, from what I've read in the lay press, about the
medical condition of former prime minister Tymoshenko and the
necessity of getting her the medical help that she needs in
addition to securing her release from what sounds like an
unjust incarceration.
So I'll yield back and resume after votes.
Mr. Smith. Before getting to our panel of witnesses, we do
have a very important panelist who will be testifying from
Kyiv. Yevhenia, who's the daughter of the former prime
minister, has graciously agreed to join us and will speak to
us. And again, we will have to leave at some point. If she can
hang on, we will come back and ask some questions. But I would
like to open up the connection. And I would also ask that any
of our panelists, when Dr. Burgess and I leave, have a question
they'd like to pose to her, we'll keep the record going here so
that you can pose such a question to her. Please proceed, and
thank you so much for joining us and for the very courageous
stand and defense of your mother.
YEHVENIA TYMOSHENKO, DAUGHTER OF IMPRISONED FORMER PRIME
MINISTER YULIA TYMOSHENKO
[via Skype]: Hello, ladies and gentlemen. I hope that you
can hear me because I cannot hear what Mr. Chairman was saying.
Can you hear me?
Mr. Smith. Yes, we can hear you just fine. Thank you.
Ms. Tymoshenko OK, thank you so much for the introduction
and for this opportunity to speak today to you. I just wanted
to briefly summarize the latest events that happened here in
Kyiv in regards to my mother and other political prisoners.
First of all, I wanted to mention that the recent incident
that I think you all heard of is when my mother was taken by
force to a hospital and beaten by the prison guards. When I
found out, it was already four days after the attack happened,
and the authorities were hoping that her bruises will
disappear. And they only met the defense team after some
senator--[inaudible]--that they thought of just to cover up
this incident. But eventually, we could come in after four
days, and we saw the results of the beating.
I heard my mother's statement, and we made straight away
official appeals to the prison, to the prosecutors about this
incident. We made official request for the video of this
instance to be shown and given to us. She also asked the
medical team--independent medical team from the members of
Parliament, from all the factions--to come and visit and make
expertise statement. She also, during the two days, gave the
account--showed the bruises to the medical team in prison and
prosecutors that she called especially to record the bruises.
This all was done, but now defense team also, during the
investigation that was mounted by the prosecutor's office,
didn't have any chance to see the medical card where bruises
were recorded. We were officially replied by the prison
authorities that this video of this incident doesn't exist.
Also there were a lot of falsifications with information
about this attack because, first of all, the head of the prison
said that he didn't see the bruises. And afterwards, when it
all became evident and because of Karpachova ombudsman--
actually we--the world could see the bruises, they started
thinking of more and more ways to falsify this information. And
that is why it is really surprising for us to hear that Prime
Minister Azarov in Brussels two days ago stated that he saw
that video, and he didn't see any violence on this video. So
either Prime Minister Azarov was lying about this or a video
does exist. But why didn't authorities show it right after the
incident to dismiss all kinds of conspiracy behind it and so-
called false accusations? So this hasn't been done. None of the
diplomats were allowed in, and we're still very sure that the
authorities are now trying to cover up this fact.
Of course, more important, more than this, what is worrying
us now is the legal aspect of the case because so far the last
court of appeal, which was scheduled for the 15th of May and
all the people involved could make sure that they looked at the
case, obviously because of reasons to dismiss it. There's no
legal grounds to call my mother a criminal or to sentence her.
And we're very thankful to Danish Helsinki Committee--to claim
and to make their statement--conclusions after very thorough
research that this case against my mother is politically
motivated. So is the next case that was closed by the Supreme
Court in 2005 by 56 judges and prosecutors general. So now they
are illegally reopening this old new case.
We knew General Prosecutor Pshonka claims that 56 judges in
the Supreme Court and general prosecutor made illegal act by
closing this case. So why don't we also make attempt to ask the
people who closed this case and bring them to the witness stand
and make sure they state why they closed this case? So far
we're not hoping for any justice in the court because the
appeal courts and the last court of appeal were held by the
people who are completely subordinate to the regime, they're
subordinate to the high council of justice, the majority of
members of which are subordinate to the president and
presidential team.
So far, these two cases--the two appeals that happened in
the last month, they've been held exactly in the same manner as
the first court when my mother was sentenced. None of the
evidence was looked at. No defense strategy [remarked ?] or
were listened to. And so far, we really have no hope because
they--even the president who claims that the courts--that the
trial would let--not under European standards, they didn't make
any kind of move towards solving the situation, not only just
about my mother, but about a case for other political prisoners
now that have been imprisoned without sentence for over a year
and now have been sentenced with no criminal basis and
illegally.
There is also another major aspect in this situation with
political prisoners is the humanitarian and medical aspects. So
far, during all this time-- and for some prisoners, it's over a
year now, more than one year and a half for, say--[inaudible]--
Mr. Lutsenko. They have--[inaudible]----
Mr. Smith. Excuse me, Yevhenia, if I could be so rude to
interrupt, we have--Dr. Burgess and I--about 45 seconds to get
to the floor of the House and vote. We have four votes; it
should be relatively quick, but the hearing will stand down in
recess. We will turn this into a briefing for a few moments
because we do have a very distinguished panel who, I believe,
would like to ask you a question or two. Then we'll come back
and resume the hearing, if that would be OK with all? So we
stand in momentary recess. I would ask again if the panelists--
if they have questions, if they would want to come up here,
because those mics don't work for some reason, on the hookup,
and then we'll resume the hearing as soon as----
MR.: The hearing becomes a briefing and because the
congressmen don't want to miss any of Ms. Tymoshenko's
statement, we're going to interrupt that statement for the
witnesses to the hearing to come up to the dais and we can have
a question and answer, which should still be very fruitful. Of
course it will be part of the transcript, on the record. And as
soon as the members are done voting, I'm sure they'll hurry
back and we'll resume the testimony and the hearing.
Who'd like to start with a question?
STEPHEN B. NIX, DIRECTOR, EURASIA DIVISION, INTERNATIONAL
REPUBLICAN INSTITUTE (IRI)
This is Stephen Nix asking the question. We understand
your mother's attorneys have filed an appeal at the European
Court of Human Rights. And my question was merely, do you have
any idea when the court--when you might expect to receive a
ruling, a decision from that court?
Ms. Tymoshenko. Thank you. We have filed several appeals to
the European Court of Human Rights. At first it was in general
about the case--the gas case. And in general then added about
the other cases that's been filed against my mother, which was
the latest accusation. The papers and the documents from the
government were passed just a month ago. And today it was the
last day for us to provide our plight to the government's
comment. And so we have done so today. And now we are waiting
for the European Court of Human Rights to announce the date of
the first hearing on the general case.
Also, our defense--[inaudible]--to European Court of Human
Rights, issue of medical treatment for my mother after the
incident when she was unconscious for two hours. [Inaudible]--
didn't receive medical treatment. European Court of Human
Rights made a substantive decision on the 15th of March and to
demand Ukrainian Government to treat her in a specialized
clinic by independent doctors. So far, for two months almost,
this decision was not fulfilled, although it had to be
fulfilled straight away by the government of Ukraine.
My mother for--[inaudible]--appealed for--to government of
Ukraine to provide her with access of the doctor--of the
professor who she trusts, which is Ukrainian professor. For two
months she's been rejected to have this right. And now, after
she's been moved to the hospital, but we're really only hope
now for the decision of the European Court of Human Rights--
[inaudible]--the general cases and her illegal arrest, the
impossibility to participate in the political life but also
other--[inaudible]--breaches of her rights that been going on
for months now, like, for example, breach of private
information according to Article 8, et cetera, et cetera.
Mr. Nix. Thank you. Just a follow-up question then; have
you had the opportunity to speak with President Grybauskaite of
Lithuania since her visit to your mother, or have you had the
opportunity to speak with U.S. ambassador John Tefft after his
visit?
Ms. Tymoshenko. I personally didn't have the chance to do
that because I was always traveling to see my mother in
hospital. But Dr.--[name inaudible]--member of the team, and
Mr. Vlasenko, the defense lawyer, had the chance to speak to
Ambassador Tefft after the meeting. But I know that my mother
outlined the critical situation that she's in, illegally,
politically, kept in a medical inhumanitarian way. And she
outlined that in hospital she's under very strict illegal
surveillance by video cameras, that her rights for privacy are
constantly breached.
And she, just two days ago, refused to go for treatment and
now she--[inaudible]--after the authorities admitted some of
these breaches of rights and tried to correct. So we'll see. So
I didn't manage to meet personally--to speak to ambassador and
president.
DAVID KRAMER, PRESIDENT, FREEDOM HOUSE
Yevhenia, this is David Kramer from Freedom House. I
wanted to ask you about your view of the reaction of the
international community. Are you and your mother satisfied with
how the European Union and the United States have responded to
this situation?
Ms. Tymoshenko. Yes. We're very much thankful to the
support and the--[inaudible]--protest against the repression in
Ukraine that's been going on since arrests--[inaudible]--but
specifically after my mother's been violently attacked in
prison. So far, you know, we just think that if it wasn't for
this support, I wouldn't know what would happen to my mother,
whether she would be completely isolated or would have any hope
at all for her release or for any justice for other political
prisoners.
What I wanted to add, if I may, is that my mother today--
[inaudible]--applied and--[inaudible]--to the FATF organization
to ask them to publicly start investigation into--[inaudible]--
activities of--[inaudible]--in Ukraine. She believes that only
this way, when this investigation can start and the facts of
this breach of law by these high officials. I know they've been
investigated by journalists and on few occasions already,
certain countries, the prosecution have started investigation
of this incident. And she also is asking if it's possible that
after many months of insisting that it's the only way the
regime will stop its illegal activity is by starting this kind
of public investigation so that--[inaudible]--to really ask
that. Also, she's asking and all political prisoners are
asking--who actually admit officially in some way, if it's
possible, that they are political prisoners, that they are
prisoners of consciousness, because the, for example, official
definitions of this [firm ?] completely corresponds to--
[inaudible]--and the reasons why they are political.
KATIE FOX, DEPUTY DIRECTOR, EURASIA, NATIONAL DEMOCRATIC
INSTITUTE (NDI)
Hi. I'm Katie Fox. I'm from the National Democratic
Institute. Now, I would like to ask you what--as Chairman Smith
mentioned the electoral process--for the parliamentary
elections has already been tainted by the exclusion of a major
political figure, your mother. But could you also comment on
additional problems that you may expect to see, if any, in this
electoral process and things that the international community
and particularly Ukrainians should be looking for.
Ms. Tymoshenko. Thank you. So far, of course, we have--I
mean, opposition has very strong worries about the elections
now in October. First worry is of course about falsifications
and that regime has accumulated so much financial power by
different schemes--especially connected, for example, to Euro
2012, but other issues to do with laundering--[inaudible]--
money. They will use this financial resource to do anything
possible to falsify the elections. Plus, they have very strong
administrative tools now and power in the regions of Ukraine to
try to manipulate and put pressure on the people, for example,
who work in the state organizations like factories and budget
organizations.
Also, the pressure and persecution of the candidates from
the opposition in the regions have already started. For
example, in Dnipropetrovsk region, a single candidate from the
opposition was arrested illegally for some accident that
happened about five years ago when there were no real victims
and nobody suffered. The person who was in this car accident is
already working and doesn't have any claims against this
candidate. But independent from that, he was taken for
questioning and arrested straight away at this point. So now
he's representing one of the polls in the Dnipropetrovsk
region, which is one of the most populated and eastern--it's in
this region, the country--now is without, you know, one major,
very popular opposition candidate. This is going on in almost
every region more or less controlled by pro-presidential
people. Of course, it's mostly populated eastern region.
So on my mother's behalf, she also asked me to pass to you
the request not just--[inaudible]--the coming elections, but
maybe it would be possible to have inside now and analyze the
situation already with these breaches of law against this
opposition.
GAVIN WEISE, DEPUTY DIRECTOR, EUROPE AND ASIA, INTERNATIONAL
FOUNDATION FOR ELECTORAL SYSTEMS (IFES)
Hi, Eugenia. Gavin Weise from the International Foundation
for Electoral Systems. As we all know, Ukraine will return to
an election system that will look very similar to what it had
in 2002. And--I'm sorry, maybe you're too young to remember
2002. However, I for one have noticed a number of similarities
or parallels, of course, to both the political situation in the
country and the creation of this type of electoral system. And
I was wondering maybe if--not to put you on the spot--but you
could talk a little bit about how maybe the creation of those
districts is influencing or affecting the way that perhaps your
mother and also the party is thinking at this moment.
Ms. Tymoshenko. Yeah. Unfortunately, you know, I'm not
able, of course, to analyze this situation, you know, in full.
I just know that the main electoral committee have made already
very few fast changes in determining the electoral districts.
And they, for example in my region, added the areas which are,
for example, pro-
opposition. They're very supportive of opposition. They've
added two more--two more areas which are completely pro-
presidential, that are by the pro-presidential people, in order
to kind of--to put the electorate there and to make sure they
control this kind of--so they cannot capture those areas which
are pro-opposition.
I don't know--I'm sorry whether that answers your question
at all. But I also wanted to pass the message that it's always
been in history of the elections of Ukraine the situation--is
that it's not that people have voted for the parties or
candidates, is then how those votes are counted. And this is
another major part in this scenario and this situation, whether
the central electoral committee members have already been
established and they already been basically pinpointed by the
pro-presidential people--[inaudible]--believe that a majority
of them are already controlled.
So independent of the way how people will fight in the
actual districts with the malfunction and falsifications. And
the results and bulletins or anything else to the central
committee, they're going to be miscalculated. So this is
another major issue.
Mr. Kramer. It's David, again. Can you update us on the
status of the investigations and the other charges and
accusations against your mother, the Shcherban murder case--
where do all these other investigations stand? What's the
status?
Ms. Tymoshenko. Thank you very much. Well, the second case
that's been opened against my mother after the gas case was a
case of alleged tax evasion and accusations similar to that. We
call it--our defense lawyers call it a case of moral orders.
Why we call it that is that because during the time when my
mother is accused of this action, she was not working in that
corporation. And the prosecution and investigators accused her
of giving part of her office to her accountant to claim for
VAT.
First of all, claiming for VAT is a normal procedure for
any businessman in the country. And not receiving VAT is also
normal procedure--or receiving VAT is also a normal procedure.
So she is accused of giving this order, which nobody really can
prove, to the accountant that claimed that VAT. So kind of the
whole accusation, which obviously nobody, first of all, can
prove that and there's no evidence for that. But first, the
main point that she didn't work in that corporation at that
time.
The other accusation--it actually hasn't been formally
given to her--is of kind of considering money officially to the
account--some of it for the separatist party. This accusation
hasn't been formally given to her, and she hasn't even
managed--and she wasn't even given the opportunity to give her
statement or witnessing statement. So that is why we received
the statement of--[inaudible]--that would mean that she is
already a murderer, a complete falsified statement while she's
not even been a proper witness in the case. So we think that
this is absurd false accusations have only put forward to shock
the world and to try and to label her as a criminal and to
blacken her name without having evidence.
We're very thankful also to Ambassador Tefft, who stated
that U.S. authorities don't have any evidence connecting my
mother to this case. So far, on the 21st of May, on Monday,
there will be a court hearing in the second case of the alleged
tax evasion for my mother. This court--[inaudible]--hasn't
started yet, because she wasn't able to be present in the court
because she's in hospital. So the actual process hasn't started
yet, but they just-- [inaudible]--just to basically start--
[inaudible]--to her.
Mr. Milosch. [Commission staffer] Thank you, Eugenia. At
this point, we're about five or ten minutes for the members
returning. We have some people working on the microphones. I
think we're going to stand down and hope the mics on the dais
can be plugged into the Skype mic by the time the members
return.
Ms. Tymoshenko. Thank you.
[Break.]
* * *
Mr. Smith. The Commission will resume its hearing. I want
to thank our witnesses for their forbearance, again, and
their--but also more importantly for asking questions and
engaging our very distinguished witness.
Ms. Tymoshenko. Hello.
Mr. Smith. Now I'll just say parenthetically, former
Congressman Jim Slattery is here. Congressman Slattery is a
great friend from years back. We served together when he was a
House member. People say in the United States bipartisanship is
dead. Well, not so with Jim.
Jim was always a very, very capable and effective lawmaker.
And the only times I think we were really at odds is when our
kids played against each other in a basketball game under the
auspices of the CYO here in the United States.
But to be serious as well on a very serious subject, if you
could just briefly say whether or not you believe the United
States, both the executive branch and the Congress, is doing
enough on behalf of your mother. Any specific things that the
EU might do and we might do to do--you know, to try to
accelerate her release? And has the United Nations weighed in
at all, whether it be the Human Rights Council or any of its
treaty bodies?
Ms. Tymoshenko. Thank you, Mr. Chairman. Thank you so much
for the question. Just wanted to say to the--[inaudible]--that
so far I have the support of the democratic world,
international community that--[inaudible]--repressions. And
now--[inaudible]--so much--[inaudible]--really critical level
after the regime crossed the line to actually applying physical
violence against--[inaudible]--against political prisoners. I
am very thankful because otherwise, without your support and
without the attention of diplomats here in Ukraine, we won't be
able to probably access the prisoners or help them or have any
hope at all. Beyond the message that my mother wanted to pass
on to you is that she yesterday--[inaudible]--her defense
lawyers applied and made an appeal to the FATF organization
to-- [inaudible]--investigate the--[inaudible]--and
investigate--[inaudible]-- that will prevent--[inaudible]--of
the high officials in the government. This she believes, and
she believes--[inaudible]--that's for any--[inaudible]--
apparently--[inaudible]--how these repressions can be stopped
and the regime punished with sanctions.
[Inaudible]--is of course very, very thankful for the
attention of the Congress, Senate hearings, for most of the--
[inaudible]--visits of the senators and congressman in the next
few months. And--[inaudible]--there can't be another solution
but emergency--[inaudible]--Ukraine where--[inaudible]--accept
and make official the status of these prisoners and name the
political prisoners, because so far the official definition of
these people behind bars for--[inaudible]--for many years, not
just--[inaudible]--few years--[inaudible]--since the 2001--you
know, since my mother--[inaudible] --in 1996, she was always
the--[inaudible]--methods that we realized that-- [inaudible]--
they are prisoners of conscience.
There are other political prisoners that also don't receive
medical treatment there. And--[inaudible]--status, their health
status is very critical now. So we want to ask to--senator also
international--[inaudible]--hospital team to see them and to
see--[inaudible]--because for example, Mr. Lutsenko, the ex-
minister of interior--according to his--[inaudible]--TB and has
told about this. So now he knows that he has this and must be
quiet in prison--[inaudible]. That is why I'm very afraid for
my mother's life now. Hospital where she's-- [inaudible]--very
professional. They are--[inaudible]--the regime as well as
prosecutors and judges. They can do something to her--
[inaudible]. So we're just asking you please to keep the
pressure on and to just--we don't know many--[inaudible]--
that--just please don't leave us alone, because we pray
there's--[inaudible]--people. We're not strong enough to fight
against this injustice.
Mr. Smith. Well, in the followup to this hearing, we will
be updating text and introducing a resolution here on the House
side. We're looking at the probability of a delegation--I would
like to put together a delegation to go and visit Kyiv. And so
we want to let you know that--you know, we're just going to
increase rather than--our efforts. And finally, are you at any
risk yourself?
Ms. Tymoshenko. At the moment I don't--[inaudible]--
directed pressure or threat on me per se, no.
Mr. Smith. OK. Well, you're in our thoughts and prayers. I
want you to know that. Commissioner Cohen is here, a member of
our Helsinki Commission.
HON. STEVE COHEN, COMMISSIONER, COMMISSION ON SECURITY AND
COOPERATION IN EUROPE
I'm a Democrat as well; I felt like chopped liver a few
minutes ago when he was extolling the virtues of Mr. Slattery.
But we work together in a bipartisan fashion as well.
Mr. Smith. Of course.
Mr. Cohen. And we had a hearing this week on the problems
in Uzbekistan and others--this--nations in Central Asia in
imprisoning people of conscience, political journalists and
religious people. And we're preparing a letter to our
colleagues as we speak on this subject and encouraging the
State Department to use whatever pressures and sanctions they
can. And the same thing goes with Ukraine, and possibly we'll
do a separate letter or work together on that. But I just--I
look forward to coming to Kyiv and visiting. I see your panda
bear in the back there; we have a panda in the Memphis Zoo, and
I like your panda. That's good. [Laughter.]
Ms. Tymoshenko. Yeah--[chuckles.]
Mr. Smith. So we will see you soon. You know, we hope to
have other members going. And I think it'll be a worthwhile
trip. And I would just add, we will also be writing Ban Ki-moon
and--to see if the U.N. system sleeps through this one and
allows a former prime minister and other high-ranking officials
to be unjustly incarcerated, it does call into question the
very viability and the
raison-d'etre, if you will, of the United Nations itself. My
hope is that they will weigh in very robustly, but we will
contact them. Again, this hearing is for us to recalibrate and
to accelerate our efforts on the Commission. So thank you so
much, and God bless you.
Ms. Tymoshenko. So much--thank you so much--[inaudible].
Mr. Smith. Bye. [Pause.]
We will resume our--we already did resume our hearing.
[Chuckles.] Let me just--David Kramer, I understand does have
to leave. And I apologize again to all of you for being so late
with those votes. If it would be all right, we will go right to
Mr. Kramer, and then go to Stephen Nix, Katie Fox and Gavin
Weise. And I'll do a little more introduction momentarily.
Please.
Mr. Kramer. Great. Mr. Chairman, thanks very much. My
apologies for having to leave fairly soon; my apologies to my
colleagues on this panel. It's a great privilege to be with
them and also to appear before the Commission again. I'm a late
addition to the witness list, and so I also apologize for not
having a written statement.
But let me offer a few thoughts based on a recent trip to
Ukraine that Freedom House conducted at the beginning of April
as part of our second assessment of the state of democracy and
human rights in Ukraine, a follow-on to the report we issued
last year, which was called ``Sounding the Alarm,'' which I
have to say I think has turned out to be rather prescient given
the trends that we've seen in the past year.
We met with a number of officials, including President
Yanukovych, on this last visit. We also had the opportunity to
visit two of the political prisoners, including Yulia
Tymoshenko and Yuri Lutsenko, the former minister of interior,
who is in prison in Kyiv. And this was an issue that was
prevalent throughout our discussions with high-level officials
in Ukraine.
But it's not the only issue that I think we need to focus
on. And I know my colleagues here are going to talk about the
election coming up in October for the parliament, for the Rada,
which is going to be a critical test of whether Ukraine can
continue to conduct national elections in a fashion that meets
the criteria that the OSCE's ODIHR arm has--and I'll let my
colleagues address that.
The two other issues involve the incarceration and
persecution and prosecution of political opposition figures.
And it is important to keep in mind not only the powerful
representation of Yevheniya Tymoshenko of her mother's case,
but that there are other people in jail from the opposition who
many suspect are in jail because they were part of the
opposition.
And this has been a major concern for many observers. And I
think we have seen the reaction in the international community
among officials from the European Union, as well as the United
States, to this continued situation: the latest developments
with Yulia Tymoshenko; the visit by the human rights
ombudswoman in Ukraine to her prison and the release of photos
from that visit, which I think fed the concern than many people
have had about the situation.
I commend--after significant, extensive efforts--Ambassador
John Tefft and Tom Melia, the deputy assistant secretary in the
DRL Bureau at State, for being able to visit her on--earlier
this week, I believe it was. They issued a statement from the
embassy expressing their concern about her continued
incarceration and also expressing the hope of the release not
only of Tymoshenko but also of the other members of the
previous government and restoration of their full civil and
political rights, which I think is a critical point.
There have been positive developments in Ukraine. And it is
not an entirely black-and-white picture. There is NGO
legislation that actually has been deemed rather good. There
has been access to information; open government efforts; the
development with the European Union last December where
Yanukovych initialed this agreement, though has not yet been
able to sign it because of the concerns about the trends in
Ukraine; the efforts with the United States on highly enriched
uranium, which--I do have some concern that that has become too
much of a focus of U.S. government officials and distracting
from some of the trends, at least earlier; but also, I would
even argue, standing up somewhat to pressure from Moscow, where
once again we see Russian officials overplaying their hand and
not helping their cause and even alienating parts of Ukraine
that in the past have been more sympathetic toward Russia.
But the three main issues coming up, or that have been in
play: the prosecution and persecution of opposition figures and
their incarceration; the elections, which my colleagues will
talk about; but then also the issue of corruption. And a term
that I heard that came up during my visit in April was
``family-ization,'' that this is actually becoming rather
personal; and the corruption allegations extending to even
parts of the first family, where you have one of the sons whose
wealth has soared 18 times just in the past year alone,
according to reports; and questions about how this wealth has
been accumulated.
Corruption is a problem throughout the region, but it's a
particular concern in Ukraine. The energy sector is rife with
corruption. And the return of RosUkrEnergo, the energy
middleman company, I think is not a welcome sign in this
situation.
The summit that was supposed to be held with a number of
East Central European and other officials--European officials,
I should say--that was to have taken place last week was
canceled because a number of heads of state decided they were
not going to visit Ukraine in light of the current situation. I
think you're also seeing a situation where Ukraine is hosting
the Euro 2012 soccer championships, along with Poland, starting
in--June 8th, I think it is. And a number of officials,
including EU officials, have indicated they have no plans to
visit Ukraine because of what's happening on the political
scene.
Ukraine is going to be the chair--as you know, Mr.
Chairman--of the OSCE next year. And many concerns that
Ukraine's chairmanship is going to make the Kazakh chairmanship
of several years ago look pretty good. I certainly hope that
won't be the case, because that will do significant damage to
the organization as well as Ukraine's standing.
There are a number of events where Ukraine should be
proud--of hosting the Euro 2012, of being chair of the OSCE.
These should be reflections of a Ukraine that is moving in the
right direction. But instead, as we warned when we were in
Ukraine in April, these events are likely going to be instead
not the focus of attention, as you have many journalists and
others arriving in the country questioning why Ukraine is
hosting such events or chairing the organization. And I think
all too predictably, the continued situation with the
Tymoshenko case, the other cases, the problems of corruption,
and concerns even about the elections--where there was a
mayoral election in the city of Obukhiv before we arrived that
was widely ridiculed and criticized--concerns about how the
elections themselves will shape up.
The last thing I would say, Mr. Chairman--and I'll stop
here--is it is critically important that we continue to engage.
But, at the same time, there is a growing level of frustration
with the officials in Ukraine, where, I think, for the first
time, in the past few months, we've heard the words ``Ukraine''
and ``sanctions'' mentioned in the same sentence, which is
terribly unfortunate.
Ukraine, after all, I would argue, despite the recent
comments of one official, is not Belarus. It's not Russia. But
if the current leadership in Ukraine is not careful, that's how
it's going to be viewed in the West. And it would be a mistake
on the part of Ukrainian officials to assume that Ukraine is so
central and important to European officials that Europe will do
whatever it can in order to try to lure Ukraine into the West.
Europe has so many problems on its hands right now that I'm
not sure it really wants to take on what is a growing headache
for Ukraine. And so Ukraine and the leadership in Ukraine and
civil society, which I did detect is more active now than a
year ago--I think they too are frustrated--it's really
important that Ukraine get back on the right track. And I
certainly hope they will do so. Thank you very much.
Mr. Smith. Thank you very much, Mr. Kramer. And I just--I'm
glad you noted the good work that Ambassador John Tefft is
doing, both in Ukraine and before that. I actually visited with
him when he was in Tbilisi right as the Russians rolled in to
South Ossetia and Abkhazia. And he's very wise and very, very
effective--so it's good that he's on the scene for all--for all
of the concerns that we all have.
I'd like to now--and, again, your full resumes will be made
a part of the record--but I would like to ask first Stephen
Nix, who's regional director for Eurasia, International
Republican Institute, the IRI. Then we'll go to Katie Fox,
deputy director of national--for Eurasia, National Democratic
Institute. And then we'll go to Gavin Weise, deputy director,
Europe and Asia, International Foundation for Electoral
Systems.
Very knowledgeable and heavily credentialed witnesses--all
four of you. Thank you for sharing your insights and wisdom and
thank you for posing questions earlier, which answered a lot of
questions that this panel would have asked, and you did it much
better. I'd like to now ask Mr. Nix if you'd go.
Mr. Nix. First of all, thank you, Mr. Chairman. Thank you
for convening this hearing today. Thank you for a focus on this
part of the world. We're all cognizant of the fact that much
attention and focus is now being placed on the Middle East and
North Africa. However, Eurasia remains strategically important
to the United States and events in that part of the world,
particularly in the field of democracy are critical to the U.S.
interests abroad.
So, thank you again, Mr. Chairman, for convening this. I
would ask that my remarks be entered into the record.
Mr. Smith. Without objection, so ordered.
Mr. Nix. Mr. Chairman, we meet here today at a critical
time in Ukraine's democratic development. For the past two
years, we've watched what can only be described as democratic
backsliding in Ukraine. The international community has
witnessed the continued selective prosecution, as you saw
earlier today and heard from your first witness--the selective
prosecution of the political opposition in Ukraine. The almost
daily announcement of European leaders that they will not
attend the soccer championships that Ukraine is hosting; the
continued discussion of visa bans and freezing of assets that
are taking place in both Brussels and in Washington.
None of this would have been imaginable two years ago.
However, the reality is that Ukraine has changed significantly.
It's instructive to understand how the country arrived where it
is today and to analyze the context of how that might affect
the upcoming parliamentary election.
The October 2012 parliamentary elections will be the first
parliamentary elections in Ukraine since 2007. As you noted
yourself, Mr. Chairman, several elections have taken place in
Ukraine that have been deemed to be free and fair and meeting
international standards.
In February 2010, in an election that was administered by
the previous administration, Victor Yanukovych was elected
president, and these elections were deemed to have met, by and
large, international standards.
However, since his election, the Yanukovych administration
has engaged in the practice of selective justice, targeting
opposition political figures. The only elections conducted thus
far under the current administration are the 2010 local
elections. Unfortunately these were recognized by both U.S. and
international observation missions as falling short of
democratic standards. Massive government resources were used to
consolidate power, while political parties not aligned with the
governing party were not able to fully and fairly participate
in those elections.
As a result of this consolidation of power, there is
growing public discontent with the authorities. In public
opinion polls conducted by IRI, respondents were asked if they
would support the freezing of assets and banning of visas of
Ukrainian officials, including judges that engaged in
corruption. Eighty-two percent responded in the affirmative,
that they would support such moves.
These are dramatic figures, Mr. Chairman. We see this
nowhere else in the region, and I think it speaks to the level
of discontent that is emerging in Ukraine.
In November, Ukraine's parliament adopted a law on
parliamentary elections. The new law establishes a mixed
system, which is a return to the system last used in 2002 and
establishes a 5 percent threshold for any political party to be
represented in parliament and does not allow electoral blocs to
compete in the election.
The Venice Commission strongly criticized this draft
parliamentary election law. Unfortunately the commission's
analysis was mostly ignored. Its report was critical of the
change to the mixed system. It advocated an open party list
system. It also expressed concern about unclear criteria and
deadlines for the designation of election districts, a lack of
clarity on appealing results of elections, and an absence of
full disclosure on sources and sums of election campaign
funding.
Now with regard to the upcoming elections, I just wanted to
give you and the members a bit of a preview on how things are
shaping up. According to IRI polling data, it appears that six
political parties will likely pass the 5 percent threshold.
Those are the Party of Regions, Batkivshchyna or Fatherland
Party, Front of Change, the Ukrainian Democratic Alliance for
Reform, the Communist Party and the Freedom Party.
Many parties are starting to coalesce. The Strong Ukraine
political party has merged with the Party of Regions, and the
opposition is also seeking to coalesce. Batkivshchyna and Front
for Change have united in a single list of candidates for the
single mandate districts and are currently in discussions with
the Udar political party. However, leading up to these
elections, government officials have intensified their pressure
on multiple sectors of Ukrainian society, and I'd like to speak
about three of those: media, civil society organizations, and
the political opposition.
With regard to the media, Mr. Chairman, one of the
preeminent legacies of the Orange Revolution was a free and
vibrant media. Soon after assuming power in 2010, the current
government directly and indirectly pressured the media to limit
critical coverage and report more positively on the government.
In addition, one of the country's deputy prime ministers is the
owner of the largest media conglomerate in Ukraine, known as
Inter. The government has tried to censor TV state companies.
In civil society, the Ukrainian Government began to more
closely monitor and regulate activities of NGOs, including
those of IRI. A cabinet of ministers' decree signed in January
of 2011 amends the registration regulations in Ukraine, making
it easier to deregister international civil society
organizations and placing much higher reporting requirements on
these--their grantees.
With regard to the opposition, you've already heard from
several today about the marginalization and the political
persecution of political figures. I won't go into that any
further. I would like to share with you some of the things that
IRI is doing to try to strengthen democracy in Ukraine.
IRI has had a long-standing program in Ukraine. We support
the promotion of democracy in Ukraine, and we try to address
the above-referenced challenges and respond to Ukraine's
rapidly deteriorating political environment and by working to
strengthen political parties, foster mechanisms for good
governance, support the next generation of political activists,
and develop a more transparent electoral system. To assist in
the development of Ukraine's electoral processes, IRI has
conducted international election observation missions,
observing every parliamentary and presidential election in
Ukraine since it became independent in 1991.
As far as next steps, Mr. Chairman, let me summarize by
saying I'd like to reiterate the importance of the upcoming
elections. Elections are critical for Ukraine's continued
integration into Euro-
Atlantic structures. Failure to conduct elections which meet
international standards will cause Ukraine to be further
isolated from the West.
We encourage the U.S. Congress to continue to make it clear
to the Ukrainian Government that free and fair elections will
determine the course of the future relationship between our two
countries. In anticipation of the possibility of excessive
fraud in the parliamentary elections, we call on Ukrainian
authorities to support international election observation
missions and to allow district and regional election
commissioners to conduct their work independent of pressure,
intimidation from central authorities.
In summary, Mr. Chairman, I'd like to thank you and the
members for focusing on the parliamentary elections. The way in
which elections are conducted in Ukraine are every bit as
important as the outcome. So, I thank you again, and I'll be
prepared to answer any questions you might have.
Mr. Smith. Mr. Nix, thank you so very much for your
testimony. Ms. Fox.
Ms. Fox. Thank you, Mr. Chairman and distinguished members
of the Commission. I want to apologize for my voice. I'm
getting over a cold, but I'm not contagious, but--thank you for
this opportunity to comment on next October's Ukrainian
parliamentary elections. I want to note that this is a
particularly important time to be holding this hearing.
Although the election is still several months off, there are
important decisions being made right now.
Ukraine's constitutional court recently invalidated parts
of the parliamentary election law. The very important
territorial and precinct election commissions will soon be
chosen. Opora, which is the major domestic nonpartisan election
monitoring group, is beginning to issue reports, and the
political parties, with which NDI and IRI work, are making
their plans for protecting electoral integrity. Moreover, of
course, as you know, it is established international practice
to evaluate all parts of the election cycle, not only election
day, but the broader electoral context that affects the
character and quality of elections.
In fact, both the Ukrainian Government and its critics
agree that this election should be viewed in a broader
political context. The Ukrainian Government asserts that it is
preparing to hold a fully democratic election, one that will
demonstrate its ability to balance strong, centralized
governance with democratic values sufficient to justify
European Union membership for Ukraine.
Unfortunately, this notion of balance remains wishful
thinking despite the efforts of some well-intentioned people in
the current government. In the electoral arena, as my colleague
Steve Nix has noted, there was a promising start when a
democratic election was held in 2010 and President Yanukovych
came to power. Since then, as my colleague has also noted, the
only nationwide elections under the current administration, the
local elections in fall 2010, were flawed in the view of
credible domestic and international observers. That tainted
performance undermined confidence among the opposition that
this government would uphold international and domestic
standards for fair elections. Very long and unfortunately
opaque deliberations over a new parliamentary election law
fueled further mistrust in the electoral process. And as has
been noted in a recent troubling development, international
observers were not allowed to monitor critical aspects of the
election vote count in March in a local election in the Kyiv
suburb of Obukhiv.
As several people have already commented, the last two
years have seen a general deterioration of political pluralism
in Ukraine. The ruling party has taken control over most of the
institutions of government. In addition to the parliamentary
election law, the last two years have seen of course the
jailing of the most popular opposition politician, Ms.
Tymoshenko; constitutional changes to strengthen the presidency
relative to parliament; and greatly expanded control by the
ruling Party of Regions over local governments as well as law
enforcement and regulatory bodies. Ukraine's courts, including
the constitutional courts, have rebuffed challenges to all of
these changes. And in David's organization, Freedom House,
which puts out the very influential Freedom in the World Index,
Ukraine dropped from free to partly free under the current
government.
At the same time, Ukraine still benefits from strong
democratic voices and alternative points of view. For example,
in the election law debate the opposition parties were able to
marshal media and public attention, and they were able to
negotiate significant changes into the law. This presence of a
viable opposition sets Ukraine apart from most of its ex-Soviet
neighbors. And it is this multiparty system that may be
undermined if the October elections are seriously flawed.
The international community can and should use both words
and deeds to guard against the further erosion of democratic
rights in Ukraine. But the primary driver of change, however,
must be the Ukrainians themselves. There should be no mistaking
Ukrainians' desires. A common refrain you hear among certain
commentators is that Ukrainians are either apathetic about
their political life or ready to sacrifice democratic
institutions and principles for a, quote, ``strong hand'' in
governance.
Neither is true and they both do disservice to Ukrainians'
aspirations. While it is true that citizens express
disappointment with their political leaders, they do care about
the direction of the country, which is evidenced by the growing
numbers who are participating in peaceful protests. Recent
increases in demonstrations and the so-called protest mood have
been documented by pollsters and by civil society, including an
NDI partner, the society--Center for Society Research, excuse
me.
The all too common wisdom that Ukrainians will sacrifice
democracy for progress on bread and butter issues is also
false. Ukrainian civic groups have successfully married the two
concerns in an advocacy campaign on the freedom of assembly.
Thousands of Ukrainians have signed petitions that call upon
the government to allow freedom of assembly as a means of
protecting their economic rights. Polling supported by NDI
along with Lake Research Associates prior to this petition
campaign showed that Ukrainians are well aware of threats to
democracy and to individual civil liberties, notably political
influence over the judiciary--a topic we discussed today.
As the election approaches, Ukrainian civil society will
become more active, particularly in monitoring and reporting on
threats to electoral integrity. Five key issues are most
important to restoring some measure of credibility to Ukraine's
electoral process. I will list them here: one, government
impartiality in the administration of the elections. This means
no misuse of governmental resources and authority in support of
a candidate or party, including abuse of the taxing or
licensing and regulatories of government, or governmental
pressure on courts involved in such things as candidate
registration.
Two, a campaign environment in which candidates, campaign
activists and observers can operate free of harassment and
intimidation. Three, transparent and equitable formation of
territorial and precinct election commissions. Four, respect
for, and adherence to the legal framework for the election, and
for the compromise that was negotiated between government and
opposition when the law was ultimately passed. Finally, five, a
post-election environment free from pressure or incentives to
induce deputies to switch allegiances.
It's important to note that this, in particular, was a
major problem following the 2002 parliamentary elections, the
last time Ukraine used a single mandate system as they are for
half the seats this time. The opposition party in that election
won the greatest number of seats, but because of post-election
defections, the pro-governmental bloc eventually was able to
form a parliamentary majority.
Observers from Opora have been monitoring in every oblast
since early April. In July, Opora will deploy additional
observers to the 225 electoral districts. And on Election Day,
it will field up to 3,500 observers. With NDI's technical
support, Opora will be able to draw accurate conclusions about
the fairness of the election nationwide, based on observation
in a statistically representative sample of polling places.
Opora will be reporting on electoral processes and
incidents, not just in monthly press conferences but also as
they are happening in real time. It will employ sophisticated
data visualization techniques to display maps of electoral
violations online. It will circulate reports using email and
social networks. All of these efforts will enable Ukrainian
citizens and international groups to react immediately to
electoral problems and events.
Opora will also work with other groups to post verified
reports from ordinary citizens, using what's called
crowdsourcing techniques that were so important in recent
Russian elections. Of course, in all these efforts, the
organization, Opora, will also cooperate with the OSCE and
other nonpartisan domestic and international election
monitoring groups.
In addition to Opora, NDI hopes to support a monitoring
effort by the European Network of Election Monitoring
Organizations. This is a network of the leading nonpartisan
monitoring groups from the former Soviet Union and Central
Europe. Its members, who have observed a number of previous
Ukrainian elections, are well-versed in Ukraine's electoral
processes.
Opora, ENEMO and other monitors can give Ukrainians crucial
information that they need so that they are able to demand from
their government clean elections as part of a genuine, long-
term commitment to democracy. We hope that all of those here
who care about Ukraine help to amplify the findings of these
credible Ukrainian--excuse me--credible monitoring groups.
Thank you, again, Mr. Chairman, members of the Commission,
for holding this hearing and for the opportunity to speak. And
I have--there's a schedule of Opora's reports on the table out
there if people want to follow.
Mr. Smith. Ms. Fox, thank you very much for struggling
through with your difficult cold and voice, and thank you for
doing it. One quick question before Mr. Kramer--and all of you
I would ask the same thing, but after of course the next
witness.
You mentioned the leaders have no plans--or some of the
leaders have no plans to go to Euro 2012. What about teams? Is
that something that should be promoted, that teams ought to
boycott this?
Mr. Kramer. It's a great question. I am inclined to keep
the teams out of this; have this decided at the political
level. I think the teams are looking forward to participating
in these games. And I think enough of a political statement
will be made by political leaders and heads of state deciding
not to go.
Mr. Smith. Thank you.
Mr. Kramer. And my apologies, Mr. Chairman, I appreciate--
Mr. Smith. Thank you so much.
Mr. Kramer. Thanks.
Mr. Smith. And have a nice trip. Mr. Weise. And thank you
for your patience.
Mr. Weise. Thank you, Mr. Chairman. Good afternoon, ladies
and gentlemen, members and staff of the Commission. I'd like to
ask that my full written statement as well as some other
materials which I will refer to in this presentation be
included in the record.
Mr. Smith. Without objection it will be so ordered.
Mr. Weise. Thank you. IFES is an independent, non-profit
leader in election assistance and democracy promotion. In
Ukraine, we have provided support to nascent electoral
institutions, offered legislative assistance to fundamental
laws and worked with a range of civil society groups and
experts to improve the quality and transparency of elections in
the country.
I would like to begin today by first sincerely thanking the
Commission for inviting IFES to speak--and, in fact, all of us
to speak--but more so for simply holding this event. Over the
past few years, the organizations represented here today have
followed closely events in Ukraine with an eye towards this
October's parliamentary election.
As we have now already heard, problems arising in the 2010
local elections, some recent developments in election law for
this election, the subsequent deterioration of rights and
freedoms, the much-publicized and seemingly selective political
persecution of former government and current opposition figures
have all collectively fueled our growing concern over how free,
fair and credible these elections may be.
I will focus my remarks on the legal framework and
administration of elections. In doing so I touch upon a number
of new or persisting weaknesses in the electoral legislation, I
draw your attention to recent developments in preparation for
October's election and I briefly highlight some additional
issues that may surface in the coming months based on IFES' own
observations and work in the country.
On the heels of the 2010 local elections, which we've
referred to a number of times now, President Yanukovych
announced his intent to embark on comprehensive electoral
reform. And there was soon considerable disappointment when it
was clear that the government made many key decisions,
including a change to the electoral system, even before the
working group on election reform held its initial meeting.
Out of this process that lasted a few to several months, a
new draft parliamentary election law was eventually put
forward. IFES, together with the Council of Europe Venice
Commission and OSCE ODHIR drew attention to both positive and
negative provisions in the law. The final version of the law
largely reflected this draft law with some notable exceptions.
And it is of course this law which now will regulate these
elections in October.
In Ukraine's new parliamentary election system, half the
deputies will be elected through proportional representation
according to a nationwide vote and half will be elected in
winner-takes-all electoral constituencies, not unlike our
elections, for example, for the House of Representatives.
Inherently, there is nothing right or wrong in such a system.
However, I would like to draw your attention to the last
time such a system was in place exactly 10 years ago, as was
mentioned today--this being the 2002 parliamentary elections.
These elections were held at a time of a government waning in
popularity, yet they eventually produced somewhat surprising
results to the benefit of the pro-government political force to
the point of it successfully retaining significant control of
the legislature.
The pro-government, pro-presidential parties achieve this
feat largely or partially certainly by doing extraordinarily
well in these single-member districts, disproportionally so.
The commonly held assertion amongst experts and academics at
the time and, indeed, still was that in some cases
administrative resource use and control of certain territorial
regions and resources helped ensure a victory for the pro-
governmental candidates where the pro-
governmental party did not enjoy a plurality of voter support.
Now I bring up this point because today in Ukraine we have
a similar scenario unfolding. A parallel election system is now
firmly in place. A number of polls, as you've heard today, and
including IFES's own from two weeks ago show the support for
the ruling party in Ukraine is in decline. So in a sense, we
have the similar mix as we had in 2002--on one hand, a
governing force that's waning in popular support, which on the
other is about to complete in an election where half the seats
will be determined through these single-member districts. Of
course we can conclude nothing at this time, nor should we, but
the parallel is striking and must not be dismissed.
A more technical issue we're just now confronted within the
last few weeks concerns the boundaries of those new single-
member districts. It is difficult to assess--to assess the
Central Election Commission's performance in creating
boundaries only because the law included just three brief
subarticles to regulate this process. We should also point out
that between the initial draft of the new law and the final
version, one of the only provisions in the law to regulate this
process, that districts must at least be contiguous, was
inexplicably removed. Not surprisingly, in examining the new
boundaries, we see that there are districts which are
noncontiguous. By international standards, there are very few
reasons for justifiably doing this, and such reasons do not
appear to apply in these cases.
IFES, together with civil society partners, is now working
on a comprehensive technical analysis of the districts, which
it hopes to release in the coming week. How the districts may
have been drawn in terms of political intentions will require
some degree of insight into Ukrainian politics, but certainly
this will come to light in the days, weeks and months to come.
An additional area to watch relates to the formation of
district and polling station election commissions which are
essentially the chief electoral bodies for their respective
areas. In Ukraine, all commissioners are nominated by a
political entity. Because of the number of parties and
candidates expected to compete for these elections, places on
these commissions will be at a premium and largely decided by a
lottery. On April 29th, the CEC adopted a lottery procedure
that could severely hamper parties' chances of obtaining these
valuable district commission places and is contrary to an
earlier IFES recommendation.
In addition, the timeframe for a political entity to submit
candidates for the commission is extremely tight--just three
days, with any nomination returned for correction needing to be
resubmitted the following day. We are concerned that political
entities may forfeit their commission nominees simply because
they will not learn until later that there was an issue with
their initial submission.
In terms of electoral administration, let me begin by
saying the CEC of Ukraine has an unenviable task in preparing
up to half a million temporary election commissioners in a
matter of just a few weeks. The CEC also be burdened with many
other tasks in the upcoming months; for example, registering
candidates on party lists and accrediting thousands of local
and international nonpartisan observers and thousands more
candidates and party proxies and observers.
Beyond these logistical challenges, we recall, in Ukraine
election commissions are de facto not independent from
political influence, as they are formed by the entities and
whose interests they de facto represent on the commission. Such
a concern has been raised by international organizations such
as the OSCE ODHIR.
Finally, I would point to a few additional issues to be
cognizant of in the upcoming campaign and election. First is
the possibility that voters will be able to use the option in
Ukraine of voting in their current temporary place of location
to strategically change their place of voting, meaning from one
district to another. This was a potential issue that we raised
in one of our earlier analyses of the draft law and we simply
believe that it should be closely monitored.
Second concerns the commonly recognized phenomenon that all
major political entities receive considerable financial and
other resources from Ukraine's wealthiest benefactors. The new
parliamentary election law does very little to bring
transparency to these relationships, requiring only the modest
basic level of disclosure and leaves ample room for campaign
costs to be hidden as third-party expenditures or services in
kind.
Third, Election Day itself may well complicate it by
unwieldy procedures that need to be clarified by the CEC in
advance of the election.
And finally, there exists the ever-present possibilities in
Ukraine of abuses of state resources, vote-buying schemes and
other illegal practices that can thrive with impunity under a
weak system of law enforcement.
Now let me conclude by stating what the international
community, including the United States, could do to support
consolidation of democracy in Ukraine through a transparent,
competitive and credible election this October.
First, I would say, don't take your eye off the ball now.
Over the next few months important developments will take place
that will surely tell us how transparent, credible and evenly
contested these elections might be. I urge you all to stay
focused on the issues raised today by myself and all the
colleagues, and those that may come to light in the upcoming
weeks and months.
To this end, it is of course vital for the U.S. and the
larger international community to pay close attention to and
respond to election administration and observation needs and,
through statements from entities such as your own, to continue
to show that the U.S. is supportive of a democratic, free and
fair election in Ukraine.
Second and finally, I urge you not to take your eye off the
ball later. Ukraine fatigue in the West has correlated
positively with the government's recidivism with respect to
human rights, obvious aggression towards political rivals and
efforts to solidify a hold on power.
For our part, IFES has and will continue to advocate for
improved democratic election legislation and practices in
compliance with international standards.
Now despite issues or concerns raised today, I would say
that we certainly do not know what the outcome of these
elections will be. But however the conduct and whatever the
outcomes, it will be necessary to continue to engage Ukraine,
and of course the performance in these elections will in large
part determine just how that engagement may take shape.
Thank you all for the opportunity to testify today, and I
am happy to answer any questions you may have. Thank you.
Mr. Smith. Thank you very much, Mr. Weise, for indicating
what's happening now, but equally important, when you talked
about and admonished us to keep our eye on the ball, what to
look out for. And I can assure you this Commission will stay
very, very focused, but your words, I think, are very
important. And of all the issues in the world today, we need
not lose focus, and Kyiv needs to be very well aware of it, at
least in terms of the U.S. Congress and this Commission. We
really do understand what's going on, and you have helped us--
the three of you and Mr. Kramer, before he left--to have a much
better sense of the threats that are occurring there.
I'll ask really all of my questions, in the interest of
time, then yield to Mr. Cohen, so whichever ones you would like
to respond to, I would ask that you do.
Starting first of all with a more general question, do you
think that the Ukrainian government is showing any signs of
responding to the force, the pressure, if you will, really just
calling on the Yanukovych government to just simply do what it
ought to do and it has promised to do with regards to those
they've jailed, including and especially Prime Minister or
former Prime Minister Tymoshenko? And are they all listening,
or are they tone deaf with regards to the very real issues
you've raised about the upcoming election? It seems to me if
you--if you plan it to--or rig the election, you're going to
get the outcome you like.
And secondly, on the intimidation of candidates, by holding
people who have--or are in jail for trumped-up charges, does
that have a chilling effect? Or does that have the opposite
effect, especially with the world watching and encouraging for
candidates to step forward and assume what could be very real
risks?
With regards to the Euro 2012, as I asked Mr. Kramer
earlier, do you think there's any room for soccer teams
themselves to boycott, or is it better left to the political
side of the equation?
And then with regards to religious leaders, it's my
understanding that religious leaders from the Catholic,
Orthodox, Jewish, Protestant, Muslim all met with Yanukovych
and pushed the human rights issue in general. I'm not sure if
they brought up the prime minister or the other incarcerated
leaders. If you have any insights on that, that would be
helpful.
And then the issue of the United Nations and its engagement
from Ban Ki-moon to the United Nations Human Rights Council to
any other treaty bodies or any other aspect of it--how engaged
are they? We know the EU's engaged, the U.S. is engaged. And
finally, should we be doing more, and should the EU be doing
more?
Mr. Nix. Thank you, Mr. Chairman. All great questions; I'll
try to answer them briefly. Let me address your first two
questions, if I may.
With regard to whether the government is being responsive
or at least paying attention to what is being said about the
elections and the previously noted selective prosecution of
political figures, I would say this: that what certainly has
gotten attention is increased discussion about the possibility
of sanctions, about the possibility of freezing of assets of
selected individuals, of denying visas to selected individuals.
That is certainly something that I think has created some
awareness on the Ukrainian side. In addition to that, raising
questions about Ukraine's role as possible chair of the OSCE I
think has certainly gained the attention of authorities in
Kyiv. So those are two very central issues, and I think that
the government is certainly taking note of those types of
issues.
With regard to your second question, which was the net
effect of the prosecution of political figures, similar to our
polling that we conduct in Ukraine, many of the polls that I've
looked at indicate that the incarceration of the opposition has
only increased their political ratings. That seems--that seems
to be the trend, in any case. Whether that will continue, we
don't know. But that has been the case so far. In turn, the
government's rating has decreased since these cases have been
brought.
Ms. Fox. Thank you. I also would like to respond to, I
think it--the first, second and maybe fifth of these questions.
[Chuckles.] On whether the Ukrainian government is open to
pressure or whether they just are completely tone deaf, I want
to note the reaction that NDI got. We had an international
assessment mission in these local elections in Obukiv in March.
And the authorities were very anxious to give us every
accommodation. They wanted us; they were very open to briefing
us and making conditions comfortable for us, to listening to
us, to asking for our views. Even though we did not issue a
formal report, because it was not an observation mission--we
didn't see the pre-election period--a number of government
officials at the Kyiv Oblast level, at the Kyiv City level and
the Party of Regions were interested informally in asking for
our views.
So I do think they have a lot invested in getting a clean
bill of health from the international community on these
elections. And I think they are capable of, for better or for
worse, separating that a little bit--would like to separate
that from the Tymoshenko issue.
On what we--what you, Mr. Chairman, members of the
Commission and the Congress, the U.S. Government--can do
further, I would say two things. One is to amplify the findings
of the nonpartisan election-monitoring groups, including the
Ukrainians themselves. Don't allow them to be painted as being
irrelevant or biased or something of that nature. Pay attention
to what these groups are saying, and use the influence that you
have to amplify them.
The other is sort of a diplomatic function, I would also
stress, working with the EU to ensure that they don't suffer
from what has been called Ukraine fatigue and that they
continue to hold Ukrainians to the standards that should be
required for membership in European bodies and for the trade
agreement, which is very important to Ukrainians.
I want to make one quick point on the candidate
intimidation. Steve made a good point about ratings going up.
But also we have to remember that there's a lot of candidate
and political activist intimidation going on out in the regions
where it isn't becoming known and where it's much easier to
scare people. And that just--it makes it all the more important
that observers are out there reporting on this. And I want to
particularly commend Ambassador Tefft in the past for the
support we've had. And we've been able to bring these cases of
specifically observer intimidation to his attention. He's been
very helpful.
Mr. Smith. Did you want to touch on the U.N. before we go,
Mr. Weise?
Mr. Nix. Mr. Chairman, if I can just respond to your fourth
question with regard to the meeting with religious leaders, I
would only say that our polling clearly shows--we asked
respondents to rate institutions. And the church in Ukraine--
whether that's the Orthodox Church, Kyiv patriarch, Moscow
patriarch, or the Ukrainian Catholic or Roman Catholic faith--
those combined institutions are always received invariably the
highest rating in polling in terms of institutions. So if the
administration is going to listen to any particular body in the
country, it would likely be the united churches.
Mr. Smith. Have they been public enough? You know, after
all those years of communism and being voiceless almost, have
they learned to get their voice in the public square?
Mr. Nix. Well, that I think is something that's developing,
but it's certainly a fact that the president met with them, I
think, is a positive and promising sign.
Mr. Smith. Mr. Weiss.
Mr. Weise. Thank you, Mr. Chairman. I'll try to also
address some of the issues that were not picked up on by my
colleagues, if I can remember, indeed.
First, with regards to the effect of some of the messages
and noise that has been coming at the authorities, I will leave
the macro-level issues out of my response but look really at
regards to the election itself. And here I'd like to point out
just on the election law itself, you know, there was an initial
draft law put forward by the MOJ, which organizations like IFES
and Venice Commission reviewed. And indeed, there were a number
of things that were changed in that legislation that were
contained in both of our analyses, which we do believe will
make it a much more--have the--I would say have the potential
to make it a more free and fair election, and certainly will
make the election run more smoothly. So I can give an example
of this by releasing the territorial districts to the
candidates and the public more than just the very day that the
election itself starts. You can imagine trying to run in a race
where you actually don't know what your district is and the
election starts on that day when you finally learn what it is.
Also, guidance on the--what we'll do with overseas voters,
which was lacking from the law. Also the removal of some--in
the final draft they removed some precincts which could have
been by law opened up in various locations not related to a
military or diplomatic post but merely in a shopping mall or
what have you, another location that they sanctioned. Another--
a couple of other things, like putting free access to
government funds for TV airtime and perhaps in media, et
cetera, et cetera. I would also say that the CEC, while they
did not pick up on all civil society's recommendations to be
transparent in how they were drawing boundaries by any means,
they did stick to a couple of provisions such as the 12 percent
maximum deviation rule between the sizes of the districts and
also distributed the districts evenly among Ukraine's regions
in a relatively straightforward and let's say standard manner.
As far as the political--as far as the effect of the
persecution of the opposition, I would just agree with my
colleagues and say that I think that absolutely has been the
cause for a significant increase in the popularity in the
polls. And I do not know the extent of some of those former
opposition leaders, how popular they were before ratcheting of
persecution happened.
And with regards to the Euro 2012 boycott, I would agree
with my colleague David Kramer to, you know, let's keep it
political, if we can. Let's also remember that Russia is
competing in those games and also has a pretty good team. And I
don't know if they would be willing to boycott this event. So
it would be hard to do it sort of on a widespread basis. And I
would also say that the history of boycotts has been mixed, I
think, when we look back at it through history with the 1980
and 1984 Olympics, I think it was. So in that respect, I would
say let's--well, hopefully it will stay political. And
hopefully, there actually will be some political pressure
because of course--and political boycotts, because we're not
actually at that point of the games just yet.
Thank you.
Mr. Smith. Thank you. Commissioner Cohen.
Mr. Cohen. Thank you, Mr. Chairman. I think the questions
are pretty well covered, but I would like to ask this: Have
other countries brought actions or taken action that the United
States should emulate?
Mr. Nix. I think that the United States, through our
embassy in Kyiv, has joined with our European friends in making
very strong statements in advance of these elections. They're
of critical importance. Every time we have a national election
in Ukraine, we say it is the most critical election ever. And
every time we say that, it's true. It's just as true this time.
So I think the statements coming out now are timely,
because the fact that districts have been drawn and the
election law has been amended--the official campaign will
start. And so I think speaking up now is appropriate. To speak
with one voice across the Atlantic is appropriate. I think
that's being done. But finally, I think the key is to be
persistent in holding officials to account, in the hope that
these elections can be well-administered and meet international
standards for fairness and transparency. That's the goal.
That's what we hope Ukraine can achieve. We all want Ukraine to
achieve this.
Mr. Cohen. OK. On the election issue, do the other two
panelists agree that we're working in concert with our European
allies and should do so and that nobody's taken any steps
beyond us? Ms. Fox.
Ms. Fox. Yes, I agree that it's very important to be
working in concert with European allies and to be persistent
and to follow up, as Mr. Nix has said. And I also agree with
him that we have--we've had a very strong voice in this and are
doing what we should be doing. We just need to keep doing it.
Mr. Cohen. Mr. Weise, you concur?
Mr. Weise. Yes, I do. I concur, and I also would like to
point out that not only--it's not so much maybe that we should
be emulating some of our European allies, but maybe they should
be emulating us as well. I think that the U.S. has actually
done a very good job and should be commended for often leading
some of the statements and some of the issues that we have
concentrated on over the past several months. And again, we've
mentioned Ambassador Tefft, and I think he's done an excellent
job in Ukraine. And he has really, let's say, pushed, I think,
the European allies to sort of all be on the same page. And we
certainly thank him very much for that.
Mr. Cohen. And those statements are about the elections.
And are they also consistent with the treatment of the former
prime minister and the prison conditions of people being
imprisoned for same?
Let me ask you this. On the--just to--Mr. Nix, you first.
We had briefings yesterday on the Uzbekistan and all of those
other ``stans'' in Central Asia. If you take all the former
Soviet republics, where does Ukraine rank as far as democratic
principles and actions of the present government? Above who and
beneath who?
Mr. Nix. Well, sure. I'd--comparatively I'd like to say at
the outset that it's not at the same level as it was, say,
after the election of 2005. Obviously there has been
regression. Where does it stand now? I was pointed out earlier
by Mr. Kramer, it's not Belarus, it's not Russia; but it's
certainly not Western Europe. It's somewhere in between. And if
Ukraine wants to realize its European ambitions, if it truly
wants to be part of the Euro-Atlantic alliance, it has to do
better than its doing now.
Mr. Cohen. And Mr. Kramer's--I kind of guess he gives,
like, a report card. And he's got, you know, fair and not so
fair and whatever. Are you familiar with this report card?
Mr. Nix. Oh yes. I refer to regularly. It's very
comprehensive. It's done regularly. It's relied on by the NGO
community.
Mr. Cohen. So with Western Europe and Belarus, it's--and
Russia--they're in the middle, but how are they with all the
other former Soviet Union, scratch Western Europe?
Mr. Nix. Well----
Mr. Cohen. In that division--if they're----
Mr. Nix. Sure, in terms of Eastern Europe----
Mr. Cohen. You know, are they a one seed or an eight seed
or do they not make the playoffs? [Laughter.]
Mr. Nix. Well, that's an interesting analogy. But I would
say this in terms of Eastern Europe, Ukraine is lagging far
behind the Baltic countries and the other countries--Slovakia
and Poland. It needs to do better; hopefully it will. That's
what this is all about. And I think the strong voices of
Congress in supporting Ukraine in its efforts to democratize
will have real effect. So they're not where they should be.
Hopefully they will get there, and sooner the better.
Mr. Cohen. Are they better than the ``stans''?
Mr. Nix. Oh, yes, sir. Yes. I would--I could say that I
think unequivocally. But you know, even in Kyrgyzstan, where
we've had a--something of a democratic breakthrough, at least
we have the constitutional makings of a parliamentary
republic--a parliamentary system of government. But that's
still very fragile. No one knows how that will pan out. So yes,
obviously, Ukraine has gained strides. Its location, I think,
dictates that it acts so. So in sum, absolutely ahead of the
``stans.''
Mr. Cohen. Thank you very much. Yield back.
Mr. Smith. Thank you very much, Commissioner Cohen.
Just final question, would a congressional or codel of this
Commission be helpful, say, between now and July?
Mr. Weise. Well, I think I speak for all of us when I say
absolutely. And of course, all of our organizations would also
be happy to assist with information or other background
materials in advance of such a trip.
Mr. Smith. We will take you on that. Thank you. We will try
to put that together as quickly as possible.
And just one final--on a more humorous note, I'm sure
Ambassador Tefft showed you his Green Bay--his beloved Green
Bay Packers helmet. Thank you so much for your insight, your
counsel, your tremendous work on behalf of human rights. It is
extraordinary. And the people of Ukraine benefit because of
you. Thank you so much.
Hearing's adjourned.
[Wherepon, at 3:30 p.m., the hearing was adjourned.]
A P P E N D I X
=======================================================================
Prepared Statements
----------
Prepared Statement of Hon. Christopher H. Smith, Chairman, Commission
on Security and Cooperation in Europe
Welcome to this Helsinki Commission hearing on the October 28
parliamentary elections in Ukraine. Even though the actual voting is
still five months away, in the hope that matters raised can still be
properly addressed we believe it is important to focus attention now.
Ukraine's past four national elections--two presidential and two
parliamentary--have met international democratic standards. They
received positive assessments from the OSCE-led international
observation missions and other international observers.
But given Ukraine's democratic backsliding under Viktor Yanukovych,
we have reason to be concerned about the pre-election climate and
watchful for attempts to skew the conditions in which the campaigns
will be conducted.
The October 2010 local elections, and, more recently, the March
mayoral election in Obukhiv in Kyiv oblast were problematic. And
Ukraine's general backsliding is very troubling; we see it in the
independence of the judiciary, in corruption, tightening controls over
the media and harassment of NGOs--all these things could also have a
debilitating impact on the election process.
Concerns are emerging that, in addition to potential overt voting
day election rigging, more subtle measures of manipulation may already
be taking place, such as putting pressure on opposition candidates to
not run or to switch allegiances to the ruling Regions party.
Especially disconcerting--and disgusting--is the unjust
imprisonment of political opposition leaders, former Prime Minister
Yuliya Tymoshenko and former Interior Minister Yuri Lutsenko, removing
their participation in the elections and casting a shadow over the
entire election process.
Unless they and other senior former government officials are
released from prison and restored to their full political and civil
rights, the October elections will, by the very fact of their
imprisonment, be tainted. The imprisonment of leading opposition
figures alone is so significant, and outrageous, that they will make it
impossible for the international community to assess these elections as
having fully met international democratic standards.
These elections are a litmus test for Ukrainian democracy--of the
degree and kind of democracy it still has. The elections process,
including the pre-election environment, registration, campaign, voting,
counting and tabulation, will tell us a lot about Ukraine's future
course. Will Ukraine continue sliding towards authoritarianism, or will
it resume its path to democracy? Another factor here is that in 2013
Ukraine will assume the leadership of the OSCE--which makes it even
more important that these elections be conducted in line with OSCE
standards of freedom and fairness--if not, Ukraine's Chairmanship will
begin under a cloud.
As a long-time advocate of democracy, human rights and rule of law
in Ukraine, I hope that the Yanukovych government will not tear Ukraine
away from its recent tradition of free and fair national elections and
will permit a genuinely democratic election process--one in which
political parties and candidates compete on a level playing field,
there exists equitable media access, and the balloting is conducted in
a manner that instills confidence.
Prepared Statement of Stephen B. Nix, Director, Eurasia Division,
International Republican Institute
I wish to thank the Members of the Helsinki Commission for
conducting this public hearing and for inviting me to testify on an
extremely important part of the world. We are all cognizant of the fact
that much attention is currently placed on North Africa and sections of
the Middle East. However, Europe and Eurasia remain of great strategic
importance for the United States, and developments, particularly in the
area of democracy, are critical to the United States' interests
globally.
Again, thank you for this opportunity and I request that my remarks
be entered into the record.
We meet here today at a critical time in Ukraine's democratic
development. For the past two years, we have watched what can only be
described as backsliding of democracy in Ukraine. The international
community has witnessed the continued selective prosecution of the
political opposition in Ukraine; the report from the Ukrainian Human
Rights Ombudsman with photographs that show what appear to be bruises
on the imprisoned former Prime Minister Yulia Tymoshenko following an
alleged attempt to forcibly transport her to a medical facility for
treatment against her will; the almost daily announcement of European
leaders indicating their refusal to attend the European soccer
championship in Ukraine as a result of its human rights situation; and
increasing talk in Washington and Brussels of the development of a
visa-ban list and freezing of international assets which would seek to
punish those government officials and their families who are the cause
of the continued backsliding of democracy in Ukraine. None of this
would have been imaginable a year ago. However the reality in Ukraine
has changed significantly. Amid all of the political instability in
Ukraine, it is instructive to understand how the country arrived at
where it is today and analyze this in the context of how it will affect
the October 2012 parliamentary elections.
The October 2012 elections will be the first parliamentary
elections in Ukraine since 2007. At the time, Ukraine had just
experienced the Orange Revolution resulting in a grassroots democratic
breakthrough and a series of free and fair presidential and
parliamentary elections. In February 2010, Victor Yanukovych was
elected President in an election which was deemed by most observers to
have met internationally accepted democratic standards. However, since
his election, the Yanukovych administration has engaged in the practice
of selective justice, targeting opposition politicians. On October 1,
2010, the Constitutional Court, following a Yanukovych-supported change
in the composition of the court to include judges mostly from his home
region, ruled that the amendments made to the constitution in 2005
following the Orange Revolution were invalid. In so doing, powers
previously vested in the presidency under the previous constitution
were reinstated, returning Ukraine to a presidential system of
government. The only elections conducted thus far under the Yanukovych
presidency, the 2010 local elections, were recognized by the U.S. and
international organizations as having fallen short of meeting
democratic standards. Massive government resources were used to
consolidate power, while parties not aligned with the governing party
were not able to fully and fairly participate in the elections
nationwide.
The Yanukovych government has justified any perceived consolidation
of power as a means to undertake unprecedented governmental and
institutional reforms. However, many international organizations have
not positively assessed these reforms, and Ukraine's democratic
development. Freedom House, in its 2011 report, downgraded Ukraine from
being ``free'' to being ``partly free.'' In addition, Freedom House
published a report at the one-year anniversary of Yanukovych's
government, in which it stated that ``If left unchecked, the trends set
by Ukraine's current leadership will move the country toward greater
centralization and consolidation of power-that is, toward
authoritarianism.'' \1\ In the report, the authors say Ukraine is
characterized by:
---------------------------------------------------------------------------
\1\ Freedom House Special Report; Sounding the Alarm: Protecting
Democracy in Ukraine 2011, page ii (April 2011) http://
freedomhouse.org/uploads/special_report/98.pdf
`` . . . consolidation of power, with a narrow ruling group
under Yanukovych intent on restoring political order and
implementing policy using a more intrusive and visible SBU
(Security Services of Ukraine) presence as well as an
increasingly malleable judicial system; a ruling group that is
equally interested in dividing spoils and protecting its own
(though egregious corrupt behavior has also been associated
with prior governments); lingering resentment over the failure
of the Orange Revolution leaders, in power from 2005 through
2009, and the continued fragmentation of the political
opposition; the effects of the financial crisis, the
International Monetary Fund (IMF) bailout, and ensuing economic
reforms; and enervated civil society groups and independent
media that are increasingly under pressure from government
authorities, including the security services, with particularly
difficult conditions in the regions.'' \2\
---------------------------------------------------------------------------
\2\ Freedom House; Sounding the Alarm: Protecting Democracy in
Ukraine 2011, page 1 (April 2011) http://www.freedomhouse.org/uploads/
special_report/98.pdf
Recently, the presidential administration reshuffled key positions
in the Ministry of Interior with former Minister Anatoliy Mohilev
appointed Prime Minister of the Autonomous Republic of Crimea. Mohilev
was replaced with the former head of the State Tax Service of Ukraine,
Vitaliy Zakharchenko. Zakharchenko is a native of the President
Yanukovych's home region in Donetsk. In January, President Yanukovych
signed decrees to remove Fedir Yaroshenko, the Minister of Finance,
from his post and replace him with the head of the Ukrainian Security
Services SBU, Valeriy Khoroshkovsky. Khoroshkovsky's position as SBU
chief was given to Igor Kalinin who is a former Russian citizen and
formerly in charge of Yanukovych's security detail. Khoroshkovsky has
since been named a Deputy Prime Minister. The new Minister of Finance,
Yuri Kolubov, is a known business associate of one of the President's
sons. The President then named Dmytro Salamatin as Minister of Defense.
Salamatin formerly was a citizen of the Russian Federation until 2005
and it is unclear how he obtained his Ukrainian citizenship. Finally,
the head of the Central Bank of Ukraine is headed by another business
associate of the President's son, Serhiy Arbuzov, who previously
managed a small bank in the President's home region of Donetsk. This
reshuffling suggests a consolidation of power in the Yanukovych
``family'', as many of these new ministers and officials can trace
their rise to their connection the President and his sons.
As a result of the consolidation of power in the hands of a small
group, closely connected to the President and the continuing democratic
regression, there is a growing public discontent with the authorities.
In public opinion surveys conducted by the International Republican
Institute (IRI), participants were asked, ``Would you support the
international community freezing the international assets of and
suspending visas for Ukrainian officials, including judges, engaged in
corrupt practices?'' In a November IRI public opinion survey, 81
percent supported this idea while six percent opposed. In March 2012,
82 percent supported this idea while six percent opposed.
On November 17, Ukraine's Parliament adopted a Law on Parliamentary
Elections, which are scheduled for October 2012. The new law
establishes a mixed system by which half of the deputies will be
elected under a closed-list proportional system and the other half
selected through individual mandates in a majoritarian system. The
mixed electoral system is a return to the system last used in 2002 when
international observers reported significant fraud. The law also
establishes a five-percent threshold for any political party to be
represented through the proportional vote and does not allow electoral
blocs to compete in the election.
The Venice Commission strongly criticized the draft of the
Parliamentary Election Law; however, the commission's analysis was
mostly ignored. Its report was critical of the change to the mixed
election system. It had advocated for an open party list system. The
commission also expressed concern about unclear criteria and deadlines
for the designation of electoral districts; a lack of clarity on
appealing results of elections; and an absence of full disclosure on
sources and sums of election campaign funding.
According to recent IRI polling, it appears that six political
parties would pass the five-percent threshold; the Party of Regions
which is headed by the current Prime Minister Mykola Azarov; the
Fatherland Party headed by Yulia Tymoshenko (currently serving a seven-
year prison sentence) and run by Oleksandr Turchynov in her absence;
Front of Change, led by the former Speaker of Parliament, Arseniy
Yatseniuk; the Ukrainian Democratic Alliance for Reform led by Vitaliy
Klychko; the Communist Party led by Vasyl Symonenko; and the Freedom
Party headed by Oley Tyahnybok.
At the March Regions Political Party Congress, the Strong Ukraine
political party headed by the third runner up in the 2010 presidential
election, Serhiy Tigipko was folded into the Party of Regions. The base
of support for Strong Ukraine had been small and medium businessmen. It
is believed that the addition of Strong Ukraine will add several
percentage points to the Party of Regions' rating. The opposition is
seeking to coalesce before the elections. The Fatherland Party and the
Front of Change agreed to unite under a unified list. The Fatherland
Party and the Front of Change are currently in negotiations with the
Ukrainian Democratic Alliance for Reform to join a unified opposition
list.
Leading up to the 2012 elections, government officials have
intensified their pressure on multiple sectors of Ukrainian society
such as media, civil society organizations and the opposition.
The Media
One of the preeminent legacies of the Orange Revolution was a free
and vibrant media. Very soon after assuming the presidency in 2010, the
current government directly and indirectly pressured the media to limit
critical coverage and report more positively on the government. In
addition, one of the country's Deputy Prime Ministers is the owner of
the largest media conglomerate in Ukraine, Inter. The government has
tried to censor state TV companies. For example, recently the State
Television- and Radio-Company of Ukraine, in a move reminiscent of the
Soviet propaganda, sent letters to local state TV channels demanding
that they ``popularize'' the President's social initiatives. According
to a June 2011 Ukrainian Press Academy news report, 74 percent of the
seven leading television channels in Ukraine cover government
authorities, 20 percent cover the opposition, and six per cent other.
Coverage on the First National Channel was 94 percent on governmental
officials and four percent on the opposition and other. \3\ A few
months ago an independent television station in Kharkiv was closed
under suspicious circumstances. In April, the tax authorities, a body
increasingly used as a tool of government to exert pressure on the
media and other parts of society, began to target one of the remaining
independent channels, the TVi Channel.
---------------------------------------------------------------------------
\3\ Ukrainian Press Academy June 2011; http://
www.mediaosvita.com.ua/material/2919
---------------------------------------------------------------------------
Civil Society Organizations
The Ukrainian government has begun to more closely monitor and
regulate activities of non-governmental organizations, including those
of IRI. A Cabinet of Ministers decree signed on January 19, 2011 amends
the registration regulations in Ukraine, making it easier to deregister
international civil society organizations (CSO) and placing much higher
reporting requirements on sub-grantees. Officials from SBU, have also
started to intimidate and exert pressure directly on more independent
CSOs. Most recently, members of Parliament from the Party of Regions
have suggested legislation which would ban foreign funding of CSOs. The
national security doctrine of Ukraine adopted by the National Security
and Defense Council was updated in March 2011 to declare as a national
security threat ``any international or domestic organization which
provides financial or moral support to political parties or non-
governmental organizations whose goal it is to discredit the government
of Ukraine.'' This statement could be interpreted to apply to any
number of organizations working in Ukraine. Adding further to the sense
of encroachment by the government on civic association, the Parliament
passed and the President signed into law legislation which requires
every database which contains personal information to be registered
with the national government. Therefore, all CSOs would have to
disclose all information which falls under the database category with
the government.
Marginalization of the Opposition
The government and its allies apply economic and/or political
pressure to coerce members of opposition parties to join the government
on local, regional, and national levels. Ukrainian authorities have
also targeted those who do not join the government or government-
aligned parties with criminal prosecution. As a result, many of the
most viable figures in the democratic Ukrainian opposition are
currently under investigation or imprisoned. In spite of numerous
European and U.S. government statements of concern about the
application of selective justice in Ukraine, the Ukrainian government
continues to prosecute and incarcerate the leading opposition figures.
As of today, the following opposition figures have been sentenced
to prison;
Yulia Tymoshenko--former Prime Minister, head of leading
opposition party, Fatherland, sentenced to seven years in prison. Her
health has significantly deteriorated in prison. Prison authorities
have refused to allow her to travel to Germany to seek treatment from
independent medical providers as suggested by German officials.
Yuriy Lutsenko--former Interior Minister, leader of
People's Self Defense Party sentenced to four years in prison.
Volodymyr Ivashchenko--former Acting Minister of Defense
sentenced to five years in prison.
Grigoriy Filipchuk--former Minister of Environmental
Protection sentenced to three years in prison.
In addition, Bohdan Danylyshyn, a former Minister of Economy in
Tymoshenko's government, received political asylum in the Czech
Republic in January 2011 after being accused of financial
mismanagement. Former Kharkiv oblast governor and Fatherland Party
member Arseny Avakov, who lost disputed mayoral elections in Kharkiv
city in the flawed 2010 local elections, is in the process of applying
for asylum in Italy after being charged with similar crimes.
The U.S. has issued statements highlighting these instances as
examples of selective prosecution.
In summary, there is a clear trend of prosecuting political
opposition leaders and activists.
IRI Work in Ukraine
Since 1994, IRI has actively supported the promotion of democracy
in Ukraine. To address the aforementioned challenges and respond to
Ukraine's rapidly deteriorating political environment, IRI is working
to strengthen political parties, foster mechanisms for good governance,
support the next generation of political activists, and develop a more
transparent electoral system.
In order to ensure Ukraine has vibrant, democratic parties which
reflect the needs of citizens, IRI trains parties on how to improve
their structures and organization, coalesce, and recruit new members.
Recently, IRI launched an innovative program to enhance communication
between political parties and local CSOs.
To encourage Ukraine's elected officials to be responsive to
citizens, IRI provides training to local elected officials on
communications, constituent service, management and other skills
necessary for effective and transparent governance.
One means to encourage government accountability is IRI's public
hearing program, which enables Ukrainian civil society, particularly in
Crimea, to bridge the gap between citizens and elected officials. By
selecting a local problem and addressing it through the mechanism of a
public hearing, citizens are able to participate in the decision-making
process.
To ensure democracy has a strong and stable future, IRI has been
supporting four youth-oriented CSOs, which established Youth Political
Leadership Schools in Ukraine to teach political activism, particularly
in Eastern Ukraine and Crimea. More than 920 students have graduated
from these schools and more than 70 percent of whom have entered into
some form of public service.
To assist in the development of Ukraine's electoral processes, IRI
has conducted international election observation missions, observing
every parliamentary and presidential election since Ukraine became
independent in 1991. IRI also participated in a joint expert assessment
team for the October 31, 2010 local elections.
In addition to observing elections, IRI has been assisting the
country with electoral reform. In July, prior to the October 31 local
elections, the Parliament adopted an election law which IRI and many
other international and domestic organizations criticized for falling
short of international democratic standards. Consequently, IRI and the
National Democratic Institute drafted a detailed election law analysis
in August, which pointed out certain undemocratic aspects of the law
and the non-transparent manner in which the law was adopted. As a
result, the President ordered Parliament to revise the election law.
However, even though the law was slightly amended, international and
domestic observers labeled the October 31, 2010 election as not meeting
international standards. In response to widespread international
criticism, Ukraine's President created a working group tasked with
developing recommendations for new elections laws. IRI was a member of
the working group until March, when it suspended its membership, after
IRI made the determination that it was not being allowed to
substantively contribute to the process.
Next Steps
Let me once again reiterate the importance of the upcoming
parliamentary elections. Elections are critical for Ukraine's continued
integration into Euro-Atlantic structures. Failure to conduct elections
which meet international standards will cause Ukraine to be further
isolated from the West.
We encourage the United States Congress to continue to make it
clear to the Ukrainian government that free and fair elections will
determine the course of the future relationship between our two
countries. In anticipation of the possibility of excessive fraud in the
parliamentary elections, we call on the Ukrainian authorities to
support international election observation missions to Ukraine and to
allow district and regional election commissioners to conduct their
work independent of pressure and intimidation from central authorities.
In summary, I want to convey the extreme importance of the
parliamentary elections in Ukraine. The way in which elections are
conducted are every bit as important as the outcome. I thank the
Chairman and his staff for their focus and attention on Ukraine, and
thank you again for the opportunity to appear here today.
Stephen Nix joined IRI in October 2000, as Regional Director. In that
position, he oversees programs in Belarus, Georgia, Kyrgyz Republic,
Moldavia, Russia and Ukraine. Nix joined IRI after serving for two
years as Senior Democracy Specialist at the U.S. Agency for
International Development.
Nix resided in Kyiv, Ukraine, for more than three years. During that
time, he worked as legal counsel for IFES and served as outside legal
counsel for the Committee on Legal Reform in the Ukrainian Parliament.
He also assisted in the drafting of crucial reform legislation in
Ukraine, including the constitution of Ukraine, the presidential and
parliamentary election laws, and the law on the constitutional court of
Ukraine.
Prepared Statement of Katie Fox, Deputy Regional Director, Eurasia,
National Democratic Institute for International Affairs
Mr. Chairman and Distinguished Members of the Commission:
Thank you for this opportunity to comment on next October's
Ukrainian parliamentary elections. NDI applauds the Commission's
decision to hold this hearing at this juncture. Although election day
is several months off, important decisions are being made now.
Ukraine's Constitutional Court recently invalidated portions of the
parliamentary election law. Territorial and precinct election
commissions will soon be chosen. Opora, the major domestic nonpartisan
election monitoring group, is beginning to issue reports, and the
parties with which NDI and IRI work are drawing up their plans for
protecting electoral integrity.
Moreover, it is established international practice to evaluate all
parts of the election cycle as well as the broader political context
that affects the character and quality of elections, as called for in
both the Declaration of Principles for International Election
Observation and the Declaration of Global Principles for Non-Partisan
Election Observation and Monitoring by Citizens' Organizations, which
are supported by the UN Secretariat, OSCE-ODIHR, NDI and other key
international organizations. The Global Principles, which were launched
on April 3 in a ceremony at the UN, are also endorsed by 165 citizen
election monitoring organizations in 65 countries
In fact, the Ukrainian government and its critics agree that this
election should be viewed in a broader political context. The
government asserts that it is preparing to hold a fully democratic
election, one that will demonstrate its ability to balance strong
centralized governance with democratic values sufficient to justify
European Union membership.
Unfortunately, this notion of balance remains wishful thinking,
despite the efforts of some well-intentioned people in the current
government. In the electoral arena, there was a promising start with a
democratic election in 2010 when President Yanukovych came to power.
Since then the only nationwide elections under Ukraine's current
administration, local elections in fall 2010, were flawed in the view
of credible domestic and international observers, including NDI. That
tainted performance undermined confidence among the opposition that
this government would uphold international and domestic standards for
fair elections. Long and opaque deliberations over a new parliamentary
election law fueled further mistrust in the electoral process. And, in
a troubling development, international observers were not allowed to
monitor critical aspects of the vote count in the March local election
in the Kyiv suburb of Obukhiv.
The last two years have also seen a general deterioration of
political pluralism in Ukraine. The ruling party has gradually taken
control over most institutions of government. In addition to the new
parliamentary election law, the last two years have seen the jailing of
the most popular opposition politician, former Prime Minister Yulia
Tymoshenko; constitutional changes to strengthen the presidency
relative to parliament; and greatly expanded control by the Party of
Regions over local governments as well as law enforcement and
regulatory authorities. Ukraine's courts, including the Constitutional
Court, have rebuffed challenges to all of these changes. In Freedom
House's Freedom in the World index, Ukraine dropped from ``free'' to
``partly free'' under the current government.
At the same time, Ukraine still benefits from strong democratic
voices and alternative points of view. In the election law debate, for
example, opposition parties marshaled media and public attention, and
were able to negotiate significant changes to the law. The presence of
viable opposition sets Ukraine apart from most of its ex-Soviet
neighbors.
The international community can use both words and deeds to guard
against the erosion of democratic rights in Ukraine. The primary driver
of positive change, however, will be the Ukrainians themselves. And,
there should be no mistaking Ukrainians' desires. A common refrain
among certain commentators is that Ukrainians are either apathetic
about political life or ready to sacrifice democratic institutions and
principles for a `strong hand' in governance.
Neither is true, and both do disservice to Ukrainians' aspirations.
While citizens express disappointment with their political leaders,
they do care about the direction of their country, as evidenced by the
growing numbers participating in peaceful protests. Recent increases in
demonstrations and in the ``protest mood'' have been documented by
pollsters and by civil society, including an NDI partner, the Center
for Society Research.
The all too common wisdom that Ukrainians will sacrifice democracy
for progress on bread and butter issues is also false. Ukrainian civic
groups have successfully married the two concerns in an advocacy
campaign on freedom of assembly. Thousands of Ukrainians have signed
petitions that call upon the government to allow freedom of assembly as
a means of protecting their economic rights. Polling supported by NDI
along with Lake Research Associates prior to the petition campaign
showed that Ukrainians are well aware of threats to democracy and
individual civil liberties, notably political influence over the
judiciary.
As the election approaches, Ukrainian civil society will become
more active, particularly in monitoring and reporting on threats to
electoral integrity.
Five key issues are most important to restoring some measure of
credibility to the Ukraine's electoral process.
1. Government impartiality in the administration of the
elections. This means no misuse of governmental resources and
authority in support of a candidate or party, including abuse
of the taxing or licensing and regulatory powers of government,
or governmental pressure on courts involved in such things as
candidate registration.
2. A campaign environment in which candidates, campaign
activists and observers can operate free of harassment and
intimidation.
3. Transparent and equitable formation of territorial and
precinct election commissions.
4. Respect for, and adherence to the legal framework for
elections, and for the compromise that was negotiated between
government and opposition when the law was ultimately passed.
5. A post-election environment free from pressure or incentives
to induce deputies to switch allegiances. This was a major
problem following the 2002 parliamentary elections, the last
time Ukraine used a single mandate system. The opposition party
won the greatest number of seats but because of post-election
defections, the pro-governmental bloc eventually formed a
parliamentary majority.
Observers from Opora have been monitoring in every oblast since
early April. In July, the group will deploy additional observers to the
225 electoral districts. On election day it will field up to 3,500
observers. With NDI's technical support, Opora will be able to draw
accurate conclusions about the fairness of the election nationwide,
based on its observation in a statistically representative sample of
polling places.
Opora will report on electoral processes and incidents not only in
monthly press conferences, but as they happen. It will employ
sophisticated data visualization techniques to display maps of
electoral violations online. It will circulate reports using email and
social networks as well as traditional methods. These efforts will
enable Ukrainian citizens and international groups to react immediately
to electoral events.
Opora will also work with other groups to post verified reports
from ordinary citizens, using the ``crowdsourcing'' techniques that
played an important role in recent Russian elections. In all of these
efforts, the organization will also cooperate with the OSCE, and other
nonpartisan domestic and international election monitoring groups.
In addition to Opora, NDI hopes to support a monitoring effort by
the European Network of Election Monitoring Organizations (ENEMO), a
network of the leading nonpartisan monitoring groups from the former
Soviet Union and Central and Eastern Europe. Its members, who have
observed previous Ukrainian polls, are well versed in the country's
electoral process.
Opora, ENEMO and other monitors can give Ukrainians the crucial
information they need to demand from their government clean elections
as part of a genuine, long-term commitment to democracy. We hope that
all of those here who care about Ukraine will help to amplify the
findings of these credible monitoring efforts.
Again, thank you, Mr. Chairman and Members of the Commission for
holding this hearing and for the opportunity to speak today. For those
who are interested, I have put copies of Opora's reporting schedule on
the table in the hearing room.
Katie Fox is deputy director of the Eurasia department at NDI. Prior to
joining the Institute more than 15 years ago, Ms. Fox was legislative
director for a large labor union. A lawyer by training, Ms. Fox also
served as an aide to two U.S. senators and a congressman. In her
current role, Ms. Fox oversees NDI election monitoring, civic
organizing and political party development programs in the former
Soviet Union, with a focus on Ukraine, Russia, Belarus and Moldova. She
has monitored elections in Bosnia, Georgia, Kyrgyzstan, Russia and
Ukraine, and served on an NDI pre-election delegation to Ukraine in
2007. Ms. Fox was stationed in NDI's Ukraine office in 1995-1998, and
again in 1999 and 2004.
Prepared Statement of Gavin Weise, Deputy Regional Director, Europe and
Asia, International Foundation for Electoral Systems (IFES)
Good afternoon ladies and gentlemen, members and staff of the
Helsinki Commission. My name is Gavin Weise, I am the Deputy Director
for Europe & Asia at the International Foundation for Electoral
Systems, also known as IFES.
IFES is a global leader in democracy promotion. We advance good
governance and democratic rights by providing technical assistance to
election officials, empowering the under-represented to participate in
the political process and applying field-based research. Since 1987,
IFES has worked in 135 countries, from developing to mature
democracies.
IFES has been active in Ukraine over the past two decades. IFES has
provided support to nascent electoral institutions following Ukraine's
independence; offered legislative assistance to fundamental laws;
gauged citizens' sentiment and attitudes through annual public opinion
research; and worked with a diverse range of civil society groups and
experts to improve the quality and transparency of elections in the
country. Currently we are actively promoting debate and analyses of
electoral laws and other election issues among civil society experts;
building the capacity of civic organizations to play a meaningful role
in electoral and political processes and reform; supporting the Central
Election Commission in its efforts to prepare for the 2012 elections;
and will embark on longer-term institutional reforms.
Before moving to my remarks, I want to first pause and sincerely
thank the Helsinki Commission for inviting IFES to speak today, but
more so for simply holding this event. Over the past two years, really
since Ukraine's last presidential election in 2010, organizations such
as IFES, and those of my colleagues here today, have followed events
closely in the country with an eye toward this October's parliamentary
elections. While Ukraine had a record of relatively competitive,
considerably free and fair, and competently run elections for several
years up through the 2010 presidential election, the local elections in
the fall of that year gave us all cause for serious concern. The
conduct of those elections, subsequent deterioration of rights and
freedoms as documented by a number of organizations, the much-
publicized and seemingly selective political persecution of former
government and current opposition figures, and recent developments with
regards to the upcoming October election, have only heightened those
concerns.
Since I am joined by my colleagues of the two political party
institutes, I will focus my remarks on IFES' core competencies, namely
the legal framework and administration of elections. In doing so, I
will touch upon a number of persisting or new weaknesses in the
electoral legislation, draw your attention to some recent developments
in preparation for October's elections, and finally and perhaps most
importantly, highlight what additional issues may surface in the coming
months based on IFES' experience, observations and work in the country.
First of all, in regards to the current electoral legislation and
the context under which it has come about, I would begin with the 2010
local elections, which were widely regarded as the most problematic
elections in the recent history of Ukraine. For an account of the 2010
local elections and some of the issues encountered, you may refer to
the U.S. Embassy in Ukraine's own statement of November 3, 2010. This
preliminary statement cited concerns over insufficient training of
election officials, ballot lottery, commission membership and
complicated registration procedures, among others. It also stressed
weaknesses in the recently passed local election law which changed the
rules of the game late in the process and, in the opinion of most
experts, to the detriment of the opposition parties and several
prominent independent candidates. In that statement the embassy also
indicated a willingness to provide assistance to future electoral
reforms in Ukraine.
On the heels of these elections, President Yanukovich announced his
intent to embark on comprehensive electoral reform. Reform is of course
a natural, ongoing process when a government, legislature or interest
group seeks to improve and amend an institution or practice. Our own
country shows no shortage of controversial topics that many would like
to change in one way or another: campaign finance, redistricting and
the electoral college, just to name a few. And while this commitment to
legal reform was welcome in Ukraine, many stakeholders were surprised,
and indeed dismayed, by the government's choice to begin with the
parliamentary election law, a law that was regarded by many as being
the least flawed of Ukraine's four primary election laws.
A reluctance of many stakeholders within the opposition, civil
society and international organizations to participate in the
government's working group on election reform was increased by the fact
that the government made many key decisions, including a change in the
electoral system, even before the working group's first meeting. Out of
this process a new draft parliamentary election law was put forward.
IFES, together with assessments of the Council of Europe's Venice
Commission and OSCE/ODIHR, has drawn attention to both positive and
negative provisions in the law through its formal assessment of the
law, and subsequent analysis. This analysis is available on our website
and copies are also available here today. Of note, the final version of
the law prepared by the parliament's temporary special committee was
not broadly discussed with experts and adopted in the first and final
reading during one day with a number of changes from the drafts
analyzed by international organizations. IFES later prepared its
comments on the final law after its adoption which it circulated widely
among stakeholders and the diplomatic community.
And it is of course this law which will regulate these elections in
October.
Now, I would like to make a general comment regarding the electoral
system, itself. Since the beginning of the reform process, the
government of Ukraine let it be known that the electoral system would
be a parallel electoral system, whereby half the deputies would be
elected through proportional representation according to a nationwide
vote, and half would be elected in winner-take-all electoral
constituencies (not unlike our elections for the House of
Representatives).
Inherently there is nothing wrong or right in such a system.
However, I would like to draw your attention to the last time such a
system was in place, exactly 10 years ago, during Ukraine's 2002
parliamentary elections. Those elections were held at a time of a
government waning in popularity; yet eventually produced somewhat
surprising results to the benefit of the pro-government political
force, to the point of it successfully retaining significant control of
the legislature. More specifically, in 2002, Nasha Ukraina received
23.57 percent of the popular vote in the nationwide constituency, and
won 25 percent of the seats in the legislature, while pro-governmental
pro-Kuchma ``Zayedu'' received 11.77 percent of the vote in the
nationwide constituency, yet won 22.4 percent of the seats. How did
this happen? The pro-Kuchma ``Zayedu'' bloc did extraordinarily well in
single-member districts. Academics have since shown how in districts
where the lion's share of the popular vote was clearly for one
political party, the single member candidate vote in the same territory
was rather oddly, not. A commonly held assertion among experts and
academics was that in some cases use and control of administrative
resource in certain territorial regions helped ensure a victory for
pro-governmental candidates where the pro-governmental party did not
enjoy a plurality of support.
What is important to note, is that today in Ukraine, we have a
similar scenario unfolding: a parallel electoral system is now firmly
in place. A number of polls, including IFES' own from two weeks ago,
shows the leading party in Ukraine, the governing Party of Regions, is
in decline with support from only about 20 percent of the electorate.
Meanwhile, the major oppositional parties cumulative support totals are
polling now higher than the Party of Regions. So in a sense, we have a
similar ``mix'' heading into the 2012 polls as we had in 2002; a
governing force waning in popular support, about to compete in an
election where half of the seats will be determined in single-member
districts. In addition, the government holds considerable power at the
local territorial level, clearly helped by the outcomes of those
controversial local elections two years ago. Of course, we are not in
2002 but 2012 and can conclude nothing at this time. However, the
parallel is striking and must not be dismissed.
A more technical issue we are now confronted with concerns the
boundaries of those new single member-electoral districts. Just how
many districts each administrative region of Ukraine would have was
determined on April 28, 2012, and the borders of the districts were
released made widely public on May 5. It is difficult to assess the
Central Election Commission's performance in creating the boundaries
for these constituencies because the law included only three sub-
articles to regulate this process. Efforts to develop a supplementary
law on territorial organization of elections seem to have evaporated.
Although there had been an earlier legislative intent, and indeed its
creation was referenced in the early draft of the law, it simply did
not happen. On a positive note, the Central Election Commission seems
to have adhered to the 12 percent limit on the variation of voting
population as prescribed by law, meaning the districts are to be
relatively equal in population and thus the votes of citizens
relatively equal. The Central Election Commission has allocated these
districts to Ukraine's regions proportionally to the number of voters
registered there. We understand that attempts were recently made to
challenge the new boundaries through the court system, but that the
cases were dismissed on the ground that the plaintiff's allegations,
even if proven to be true, would not amount to a contravention of the
law. In other words, it is proving difficult to challenge the legality
of an act, when said act has little in the way to regulate it.
As IFES cautioned in several of its reports, leaving the law vague
and devoid of several basic international norms of districting has
yielded little in the way of predictability for contestants or guidance
for election commissioners, potentially leaving the commission open to
criticism as a consequence. Here we should also point out that between
the initial draft of the new law and the final version, one of the only
provisions in the draft law related to districts--that districts must
be contiguous--was inexplicably removed. As the districts have now been
unveiled, we not surprised to see that there are districts which are
noncontiguous. Unless the desire is to keep, in the same election
district, a community of interest, such as an ethnic minority, or an
established territorial unit (e.g. city, township, etc.) together,
that, too, happens to be non-contiguous, by international standards
there is no justifiable reason for doing this. In addition, there were
no public or expert consultations, or certainly no expert input known
to the public. How the districts were drawn in terms of political
intentions, if they were indeed drawn for these reasons, will require
some degree of political insight. A number of local groups have begun
this analysis. Indeed, there is no doubt this expertise exists in
Ukraine, and such information will certainly come to light. IFES,
together with civil society partners, is itself working on a
comprehensive technical analysis of the new districts which it hopes to
release in the next week.
Another set of issues to watch relates to the formation of district
and polling station election commissions, which are essentially the
chief electoral bodies for their respective areas. This will take place
by August 24, and September 26, respectively. Election commissioners in
Ukraine, at each level of election administration, are chosen purely on
a partisan basis. In other words: all commissioners are nominated by a
political entity. Because of the number of registered parties in
Ukraine, and the numbers expected to compete for these elections,
places on these commissions will be at a premium.
Political factions already in the current parliament are guaranteed
one place on each commission. With regards to the composition of the
remainder of the commissions, there are a number of concerns. Instead
of drawing lots from the entities competing in a district for the
remainder of seats on the commission, on April 19 the Central Election
Commission adopted a procedure whereby a single lottery will determine
the ranking of political parties, which will then be used to fill each
of the 225 district commissions around the country. This practice is
contrary to an earlier IFES recommendation, as we believed separate
lotteries for each district race should have been held. Each contestant
to each electoral contest should have equal chance to gain the open
positions on the presiding electoral commission. Should a party
unfortunately draw near the bottom of the list in the lottery, they may
lose any chance of getting even one of the 225 district commissions
anywhere in the country. Drawing near the top gives them a high
probability of membership or increased membership in every commission.
Also, the timeframe for submission of the candidates for membership
in the commissions is very tight--three days. If there are any mistakes
in the submission, the nominating party or candidate is informed and
must file a corrected submission the very next day or an application is
rejected. However, the manner in which parties and candidates are
informed of such decisions is not clearly defined by the law. If a
political entity misses the slim deadline because they did not learn
until later that there was an issue with their submission, this is
potentially an unfair practice. Should it be systemic, it could result
in significant underrepresentation of certain parties and candidates on
the commissions.
In terms of electoral administration, I should start by saying the
Central Election Commission of Ukraine has an unenviable task. Training
up to half a million election commissioners in a matter of a few weeks
would be a difficult charge for any country. While organizations like
IFES are willing partners of the election commission and will
contribute some technical advice in planning, design and execution of
training programs, overall, the burden of responsibility falls on the
commission, itself.. The Central Election Commission will also face a
significant challenge in educating voters on changed voting procedures.
Again, IFES and other members of the international community can be of
assistance here, but ultimate responsibility will rest with the
election commission.
Another challenge is that the commission will be overburdened with
tasks in the upcoming months--it has to register candidates in each of
the 225 single-member districts and the national party lists for the
national district, accredit thousands of local and international
nonpartisan observers, and thousands more candidates, party proxies and
observers. Recently the election commission responded to this challenge
through draft amendments to the parliamentary law, seeking to transfer
some of its obligations to the district election commissions. However,
experts do not believe this will prove successful. Understandably,
there is resistance to further amending the legal framework so soon
before an election.
Beyond mere logistical challenges, we must remember that in Ukraine
election commissions are de facto not independent from political
influence as they are formed by the political entities whose interests
they represent on the commission. Such a concern has been raised by
international organizations that observed previous elections, such as
the OSCE/ODIHR. This issue is of crucial importance as commissions in
Ukraine have a legal function to adjudicate certain types of election
challenges and disputes; essentially deciding for or against a
political entity's interests is arguably better served with a certain
degree of neutrality.
Finally, I would point to a few additional issues to be cognizant
of in the upcoming campaign and election. First, is the possibility
that voters will be able to use the option in Ukraine of voting in
their current temporary location to strategically change their polling
place. This was a potential problem that IFES highlighted in its
analysis of the draft law and should be closely monitored. In this
regard it is worth noting that the system of voting in place, of
temporary stay, bears a similarity to the absentee ballot system that
was a major source of fraud during the 2004 Presidential elections.
Second, concerns the commonly recognized phenomenon that all major
political entities receive financial and other support from Ukraine's
wealthiest benefactors--a factor in perpetuating the corruption that is
one of the hallmarks of political life in Ukraine. However, the legal
framework does little to regulate or bring transparency to such
relationships. The new parliamentary election law requires only the
most basic level of disclosure and leaves ample room for campaign costs
to be hidden as third party expenditures or services in-kind.
Furthermore, discrepancies between the election law and the law on
political parties make it easy for candidates to conceal both the
sources of their funding and the full extent of their spending by
funneling it through political parties.
Third, Election Day, itself, may well be complicated by unwieldy
procedures that ought to be clarified by the Central Election
Commission in advance of the election; and of course, the ever present
possibilities of abuse of state resources, vote buying schemes and
other illegal practices that can thrive with impunity under a weak
system of law enforcement.
Let me conclude by stating what the international community,
including the United States, could do to support consolidation of
democracy in Ukraine through a transparent, competitive and credible
election this October.
First, do not take your eye off ball now. It is understandable that
organizations such as IFES, NDI, IRI and others who are deeply invested
in electoral and political reform perhaps put greater priority on these
developments in countries like Ukraine, and for a longer period of
time. But now we are less than six months from Election Day. Over the
next few months important developments will take place that will surely
tell us just how transparent, credible and evenly contested these
elections might be. Today's testimony has given you only highlights of
some concerns; many others will be seen in the upcoming weeks and
months, and I urge you all to stay focused on these concerns.
To this end, it is of course vital for the U.S. and the larger
international community to support nonpartisan observation efforts. We
must pay close attention to and respond to electoral administration
needs and help non-partisan human rights organizations, NGOs and media
outlets have meaningful access to needed resources--especially through
statements from entities such as your own, that continue to show that
the U.S. is supportive of a democratic, free and fair election in
Ukraine.
Second, I urge you to not take your eye off the ball later. Ukraine
fatigue in the West has correlated positively with the government's
recidivism with respect to human rights, obvious aggressions towards
political rivals and efforts to solidify the hold on power. For our
part, IFES has and will continue to advocate for improved democratic
electoral legislation and practices, and compliance with international
standards and best practices, but with an understanding of nuances and
particularities of the country. We hope that the U.S. will continue to
value and advocate for the continued role of international
organizations like IFES, the Venice Commission and others to their
Ukrainian counterparts.
Despite issues or concerns raised today, I would say that we
certainly do not know what the outcome of these elections will be. But
however the conduct--and whatever the outcome--it will be necessary to
continue to engage Ukraine. Performance in the elections will determine
in large part just how that engagement may take shape.
Thank you for the opportunity to testify today and I am happy to
answer any questions you may have.
Gavin Weise currently serves as Deputy Director for Europe and Asia,
managing all Europe and Former Soviet Union programs. For the past
decade, Weise has worked on Ukrainian issues at a number of
international development organizations, implementing programs in
democracy, rule of law and community development. His election
experience includes support to election management bodies, civic and
voter education, and training and advisory assistance to NGOs, courts,
election commissions and political representatives. Weise co-authored
IFES' review of Ukraine's draft Parliamentary Election Law in September
of last year.
This is an official publication of the
Commission on Security and
Cooperation in Europe.
< < <
This publication is intended to document
developments and trends in participating
States of the Organization for Security
and Cooperation in Europe (OSCE).
< < <
All Commission publications may be freely
reproduced, in any form, with appropriate
credit. The Commission encourages
the widest possible dissemination
of its publications.
< < <
http://www.csce.gov @HelsinkiComm
The Commission's Web site provides
access to the latest press releases
and reports, as well as hearings and
briefings. Using the Commission's electronic
subscription service, readers are able
to receive press releases, articles,
and other materials by topic or countries
of particular interest.
Please subscribe today.