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II. POLITICAL BACKGROUND

The appearance of temniki followed two years of political scandals involving President Leonid Kuchma and coincided with a precipitous decline in the president's public approval rating as well as with his introduction of new measures to address ongoing battles with the opposition. In 1999 Kuchma won reelection for a second five-year term with more than 56 percent of the vote.3 Soon after the presidential elections, Kuchma initiated efforts to consolidate his power and exert executive control over the Verkhovna Rada, ostensibly to end the deadlocks between the presidency and the parliament that had plagued the passage of legislation. Kuchma complained that the Rada had wrecked his attempts to secure market reforms and was responsible for prolonging the country's eight-year economic stagnation.4 In January 2000, Kuchma initiated a controversial referendum on constitutional amendments designed to reduce the Rada's powers in favor of increased authority for the president.5 Although between 80 and 90 percent of the electorate supported all of Kuchma's proposed changes, with more than 80 percent voter turnout, the Rada failed to ratify amendments that would have significantly reduced its own weight.

Tensions between the executive and legislative branches continued, with the president's credibility coming under severe attack in November 2000, when Socialist Party of Ukraine leader Oleksandr Moroz revealed the existence of secret tape recordings of conversations involving Kuchma and top political and financial figures made by former presidential security guard Mykola Melnychenko. The tapes implicate Kuchma and other prominent officials in numerous scandals, including the kidnapping and murder of investigative journalist Heorhii Gongadze in September 2000.6 Gongadze had been investigating corruption and was a vocal critic of President Kuchma's January referendum and the government's efforts to restrict press freedoms. The Melnychenko tapes also record Kuchma's authorization of the sale of sophisticated military radar systems to Iraq in violation of a United Nations arms embargo.

The scandal, dubbed "Kuchmagate," and growing public concerns about corruption, worsening poverty, and unemployment inspired the development, in late 2000, of the "Ukraine without Kuchma" protest movement.7 In February and March 2001, students, pensioners, politicians, and others organized rallies throughout the country. Some of these demonstrations ended in violence and the arrest of hundreds of protesters. Sensing this growing antipathy and risk to his government, on March 6, 2001, President Kuchma demanded that all government officials "sever publicly any links to the opposition within the week or submit their resignations."8

In this period President Kuchma also began removing key reform-minded figures from the government. In January 2001, Kuchma dismissed Deputy Prime Minister and Minister for Energy Yulia Tymoshenko, after the Office of the Prosecutor General opened a criminal case against her on charges of fraud and embezzlement during her leadership of Unified Energy Systems of Ukraine from 1995-1997.9 She had served as deputy prime minister for just over a year, and became an outspoken critic of the president soon after her removal from office. Analysts believe that the criminal case and subsequent dismissal are linked to Tymoshenko's efforts to reform the energy sector. Her reforms began to jeopardize the interests of the nation's oil and gas oligarchs, many of whom are closely associated with Kuchma and who have enjoyed growing political and economic power during Kuchma's second term.10 The businessmen most adversely affected by Tymoshenko's reforms were those connected to the pro-presidential SDPU(u), which controls the majority of district energy distributors.11 Tymoshenko was arrested and jailed for six weeks before a district court ruled that the charges against her were unfounded. In April 2002, a district court closed all proceedings against Tymoshenko, but in August 2002 the newly appointed prosecutor general, Sviatoslav Piskun, initiated a new criminal case against her on the same charges and in September 2002 opened yet another case against her for illegally calling for the ousting of President Kuchma.

Three months after the dismissal of Tymoshenko, popular reformist Prime Minister Viktor Yushchenko also came under attack. Despite Yushchenko's success in carrying out reforms, important industrial and financial figures believed many of Yushchenko's policies interfered with lucrative business arrangements. Communist Party deputies formed an alliance with the SDPU(u) and other pro-Kuchma parties representing the interests of leaders of some of Ukraine's most powerful business conglomerates to oust the Yushchenko government in a vote of no confidence in April 2001.12 During his sixteenth-month tenure as prime minister, Western analysts credited Yushchenko with curbing inflation, meeting domestic and international debt commitments, paying pension arrears, and overseeing the first period of real economic growth in Ukraine in more than a decade.13 The Rada replaced Yushchenko with Kuchma's proposed candidate, Anatolii Kinakh.

In the months following these changes, the Rada and the president fought over the passage of a new election law. Controversy would mar the March 2002 parliamentary elections throughout, with reports of illegal interference by public authorities, abuse of administrative resources, instances of violence, and intimidation of reporters and media outlets.14 Despite manipulation by the authorities, the pro-presidential bloc "For a United Ukraine" garnered 11.8 percent of the votes gained on party ballots, which account for half of the parliament's seats. Two opposition parties proved to be more popular in the party balloting; the "Our Ukraine" coalition led by Viktor Yushchenko won 23.57 percent, while the Communist Party of Ukraine secured 20 percent. Only three other parties surpassed the 6 percent minimum for winning seats: the Yulia Tymoshenko Bloc (7.26 percent), the Socialist Party of Ukraine (6.87 percent) and the SDPU(u) (6.27 percent).15 In the final composition of the Verkhovna Rada, however, "For a United Ukraine" held the greatest total number of seats, having won heavily in the election of individual pro-presidential candidates in local constituencies voting, which accounts for the other half of the parliament's seats.16

Thus, the opposition parties' popular electoral success did not translate into a strong position in parliament. In May 2002 the "For a United Ukraine" bloc and the SDPU(u) cooperated to secure the Rada chairman and deputy chairman positions. Two key appointments came soon thereafter: Kuchma named SDPU(u) Chairman Viktor Medvedchuk as head of the Presidential Administration in June 2002 and one month later won parliamentary approval of his candidate for prosecutor general, Sviatoslav Piskun. Beginning in this period, pro-presidential parties began to persuade many independent deputies and deputies from other parties and factions to join their ranks.17 A pro-presidential majority is important for Kuchma in order to facilitate passage of his proposed legislation and to stave off impeachment.18

Although Kuchma managed to consolidate his position in parliament and in key executive agencies, during the summer his popularity continued to suffer in the face of ongoing scandals and unresolved social and economic issues. According to a September 2002 poll, just 5.9 percent of Ukrainians expressed complete support for Kuchma and nearly 72 percent supported his resignation.19 In September and October 2002, opposition parties-the Communist Party of Ukraine, the Socialist Party of Ukraine, the Yulia Tymoshenko Bloc and "Our Ukraine"-staged anti-Kuchma protests around the country.20 The largest of these "Rise Up Ukraine" protests, held on September 16 in the capital, Kyiv, drew more than 20,000 participants.

The Ukrainian government went to great lengths to frustrate the opposition's actions by banning the protests from Kyiv's center and demanding that they be held in a stadium on the distant edge of the city.21 Schedules for Kyiv-bound buses and commuter trains were changed inexplicably for September 16, and traffic police denied cars and buses with non-Kyiv license plates entrance to the capital. As a result, thousands of people did not enter the city that day, irrespective of whether they intended to participate in the demonstrations. In the days prior to the demonstration, the police harassed students and members of opposition parties. The government also initiated an aggressive media campaign designed to dissuade people from participating and to obscure the scale of the protests and demands of the protesters.22 In addition, for no clear reason, currency exchange offices in many areas of the capital were closed in the days before and on the day of the Kyiv demonstration. The morning after the protest, police violently broke up the demonstrators' tent camp and arrested several dozen participants.

In the months following the demonstrations, opposition and pro-presidential forces in the Rada jockeyed for position and neither was able to form a stable majority. In response to parliamentary impasses, in November Kuchma dismissed Kinakh and appointed Donetsk Governor Viktor Yanukovych as prime minister, who was able to organize a majority in the Rada by mid-December.23 The impact of the Kuchmagate scandal on the president intensified in October 2002, after United States experts authenticated the Melnychenko tapes and the U.S. government took steps to isolate Kuchma over his approval of the Iraqi arms deal.24 Soon thereafter, Kyiv Appeals Court Judge Yurii Vasylenko opened a criminal investigation against Kuchma in connection with these and other charges, but in December the Supreme Court rescinded the orders for an investigation. In February 2003, the Supreme Council of Justice recommended that the Verkhovna Rada dismiss Vasylenko on charges that in initiating the criminal case against Kuchma, the judge violated the constitution.25

3 Central Election Commission of Ukraine, "Unified All-State Single-Mandate Election Constituency: Elections Result," November 14, 1999 [online], http://195.230.157.53/pls/vp1/webproc0e (retrieved November 19, 2002).

4 In contrast to all other countries of the former Soviet Union, Ukraine did not report single year of growth between 1992 and 1999. GDP declined some 53 percent from 1989 to 1998. Privatization and deregulation proceeded very slowly. Anders Aslund, "Problems with Economic Transformation in Ukraine," paper presented at the Fifth Dubrovnik Conference on Transition Economies, June 23-25, 1999 [online], http://www.ceip.org/files/publications/webnote10.asp (retrieved December 20, 2002).

5 The amendments would have given the president increased powers to dissolve parliament; lowered the number of parliamentary deputies from 450 to 300; removed deputies' immunity to criminal prosecution; and created a second parliamentary chamber. The president would have had the authority to appoint members of the second chamber, which is intended to represent the interests of Ukraine's provinces. Ukrainian human rights groups and the Parliamentary Assembly of the Council of Europe deemed Kuchma's proposal a threat to the rule of law and certain to disrupt the balance of powers enshrined in the constitution. International Helsinki Federation for Human Rights, "Ukraine Referendum Threatens Rule of Law: Process Resembles that in Belarus," March 15, 2000 [online], http://www.ihf-hr.org/appeals/000315.htm (retrieved December 11, 2002), and Council of Europe Parliamentary Assembly Resolution 1451 (2000), "Reform of the Institutions of Ukraine," April 4, 2000 (10th sitting) [online], http://assembly.coe.int/Documents/AdoptedText/ta00/EREC1451.htm (retrieved September 14, 2002).

6 For a full transcript of the tapes see Ukrainskaia pravda [Ukrainian Truth], http://www.pravda.com.ua/archive/?1109-tapes-new. Note on transliterations: the Library of Congress system has been used throughout, with the Ukrainian `g' being transliterated according to its phonetic equivalent `h,' except in cases of direct translation from Russian language documents. The original Ukrainian spelling for proper names has been used throughout, except in cases of direct translation from Russian language documents.

7 Ukraine's GDP per capita for 2000 was U.S.$690. The World Bank Group, "Ukraine Data Profile," April 2002 [online], http://devdata.worldbank.org/external/CPProfile.asp?SelectedCountry=UKR&CCODE=UKR&CNAME=Ukraine&PTYPE=CP (retrieved December 18, 2002). Official unemployment in 2001 stood at 4.3 percent, but the International Labor Organization recorded an actual rate of 23.8 percent, which includes disguised unemployment described as "administrative leave." International Labor Organization, "Ukraine: A Land of Economic Instability," July 2001 [online], http://www.ilo.org/public/english/protection/ses/info/database/ukraine.htm (retrieved December 20, 2002). In Transparency International's Corruption Perception Index, Ukraine ranked 87 out of 90 countries, tied with Azerbaijan and less corrupt than only Yugoslavia and Nigeria. Transparency International, "2000 Corruption Perceptions Index," n.d. [online], http://www.gwdg.de/~uwvw/ (retrieved December 20, 2002).

8 "Constitutional Watch: Ukraine," East European Constitutional Review, vol. 10, no. 1 (Winter 2001) [online], http://www.law.nyu.edu/eecr/vol10num1/constitutionwatch/ukraine.html (retrieved November 18, 2002).

9 The case against Tymoshenko was not the first involving United Energy Systems of Ukraine (UESU). In 1997, Kuchma ousted his former protégé, Prime Minister Pavlo Lazarenko, whose fortunes are linked to UESU. The prosecutor general initiated criminal proceedings against Lazarenko on charges of embezzlement and providing illegal political concessions to UESU. In the 1998 parliamentary elections, much of the widespread violence was believed to be associated with the ongoing rivalry between Lazarenko and Kuchma, including five bomb explosions in the headquarters of Lazarenko's opposition newspaper, Vseukrainskie Vedomosti [All-Ukrainian Gazette]. "Constitutional Watch: Ukraine," East European Constitutional Review, vol. 7, no.2 (Spring 1998) [online],
http://www.law.nyu.edu/eecr/vol7num2/constitutionwatch/ukraine.html (retrieved December 20, 2002). Lazarenko fled to the United States in 1999 and is currently in custody in the United States awaiting trial on money laundering and other charges. "Lazarenko's Attorney to Defend his Deputy Immunity in Ukrainian Court," May 21, 2002, Kyiv Post [online], http://www.kyivpost.com/nation/10743/ (retrieved December 20, 2002).

10 Tymoshenko's reforms were designed to increase transparency in the energy sector. They curbed the widespread practice of gas and electricity purchases being paid through the barter of goods instead of cash payments. Askold Krushelnycky, "Ukraine: Political Tensions On the Rise," RFE/RL Newsline, February 15, 2002 [online],
http://www.rferl.org/nca/features/2001/02/15022001112844.asp (retrieved December 12, 2002).

11 Taras Kuzio, "Russian President Gives Ukrainian Counterpart a Helping Hand Against the Opposition," RFE/RL Newsline, August 15, 2002 [online], http://www.rferl.org/newsline/2002/08/150802.asp (retrieved December 11, 2002). The SDPU(u) is one of several pro-presidential political parties formed in recent years by major industrial-financial groups seeking to advance group and political interests. These groups have also purchased numerous media outlets.

12 "Constitutional Watch. Ukraine," East European Constitutional Review, vol. 10, nos. 2/3 (Spring/Summer 2001) [online], http://www.law.nyu.edu/eecr/vol10num2_3/constitutionwatch/ukraine.htr (retrieved November 18, 2002), and "Hopes Depart, Worries Return," The Economist, May 3, 2001 [online],
http://www.economist.com/displayStory.cfm?Story_ID=613466 (retrieved September 4, 2002).

13 "Hopes Depart, Worries Return." After a nearly decade of negative growth rates, Ukraine recorded 5.8 percent real GDP growth in 2000. World Bank, "Ukraine at a Glance," September 23, 2002 [online],
http://www.worldbank.org/data/countrydata/aag/ukr_aag.pdf (retrieved December 11, 2002).

14 For a full analysis of the elections see Organization for Security and Cooperation in Europe (OSCE), "Ukraine: Parliamentary Elections 31 March 2002: Final Report," May 27, 2002 [online],
http://www.osce.org/odihr/documents/reports/election_reports/ua/ua_pe_march2002_efr.php3 (retrieved September 12, 2002).

15 Central Election Commission of Ukraine, "Elections of the People's Deputies of Ukraine: Elections 31 March 2002," [online], http://195.230.157.53/pls/vd2002/webproc0v (retrieved February 6, 2003).

16 The parliamentary seats were distributed accordingly: "For a United Ukraine," 182 seats, "Our Ukraine," 117 seats, Communist Party of Ukraine, 66 seats, Socialist Party of Ukraine, 24 seats, and the Yulia Tymoshenko Bloc, 22 seats, and 39 unaffiliated seats. "Stumbling Along," The Economist, April 4, 2002 [online],
http://www.economist.com/displayStory.cfm?Story_ID=1073582 (retrieved September 4, 2002). See also Taras Kuzio, "Loser Takes All: Ukrainian President Co-opts Parliament," RFE/RL Newsline, vol. 6, no. 100, Part I, May 30, 2002 [online], http://www.rferl.org/newsline/2002/05/300502.asp (retrieved September 9, 2002). The "For A United Ukraine" bloc consisted of five parties: Labor Ukraine, the Regions Party, the People's Democratic Party, the Agrarian Party, and the Party of Industrialists and Entrepreneurs and was led by then-Head of the Presidential Administration Volodymyr Lytvyn.

17 Between the March elections and December 2002, the "Our Ukraine" faction lost eighteen deputes, reducing its number of seats from 120 to 102. Peter Byrne, "Majority Rules," Kyiv Post, December 19, 2002 [online], http://kpnews.com/nation/12499/ (retrieved January 1, 2003).

18 Taras Kuzio, "Presidential Tactics," Ukrainskaia pravda, September 7, 2002 [online], http://www.pravda.com/ua/en/?2096-1-new (retrieved September 9, 2002). Since 1998, opposition parties have made numerous unsuccessful attempts to force a parliamentary vote on impeaching President Kuchma. For example, in 1998, opposition parties successfully brought the motion for impeachment into the agenda, but ultimately no vote was held. "Constitutional Watch: Ukraine," East European Constitutional Review, vol. 7, no.1 (Winter 1998) [online], http://www.law.nyu.edu/eecr/vol7num1/constitutionwatch/ukraine.html (retrieved December 31, 2002). In June 2002, the Yulia Tymoshenko Bloc proposed a motion for impeachment, but the item did not receive sufficient votes to be tabled in debates. "Constitutional Watch: Ukraine," East European Constitutional Review, vol. 11, no. 3 (Summer 2002) [online], http://www.law.nyu.edu/eecr/vol11num3/constitutionwatch/ukraine.html (retrieved December 31, 2002). A proposal was again made in September 2002. "Parliament Reluctant to Impeach Kuchma," Forum [online], http://eng.for-ua.com/news/2002/09/12/193738.html (retrieved December 31, 2002).

19 Anatoliy Hrystenko, "Mental Fatigue," Dzerkalo tyzhnia [The Weekly Mirror], no. 37(412) (September 28, 2002) [online], http://www.mirror-weekly.com/ie/show/412/36249/ (retrieved November 22, 2002).

20 Even after his dismissal from the post of prime minister, Yushchenko and his Our Ukraine faction remained only moderately oppositional to Kuchma and sought compromise solutions for forming a parliamentary majority. However, his relationship to other opposition parties became much less ambiguous in late 2002, beginning with the September protests and culminating in Kuchma's December legislative victories (see note 23) after which Yushchenko called for new elections and a nationwide strike. Peter Byrne, "Majority Rules."

21 On the day of the protests, demonstrators ignored the court order.

22 For details on the government's actions related to the protests, see Taras Kuzio, "Ukraine Returns to Soviet-Era Tactics to Subdue Opposition," RFE/RL (Un)Civil Societies, vol. 3, no. 38 (September 18, 2002) [online], http://www.rferl.org/ucs/2002/09/38-180902.html (retrieved September 18, 2002), and Evgenia Mussuri, "Government Employs Religion, Media in Effort to Foil Rallies," Kyiv Post, September 19, 2002 [online], http://www.kpnews.com/main/11852 (retrieved September 20, 2002).

23 Yanukovych is a member of the Ukraine's Regions Party, a party created by the Donetsk industrial-financial group. On December 19, 2002 Serhii Tyhipko of Labor Ukraine, a party created by the Dnipropetrovsk industrial-financial group, was elected as the National Bank chairman in a secret vote by the pro-presidential parties in the Rada. In a similarly secret vote two days earlier, the same deputies voted to redistribute all Rada committee chairmanships to pro-presidential factions. With these appointments and changes, pro-presidential oligarchic parties have gained control over the main state institutions: the Presidential Administration (Kyiv's SDPU(u)), the parliament (Donetsk's Ukraine's Regions), and the National Bank (Dnipropetrovsk's Labor Ukraine). Peter Byrne, "Majority Rules," and Taras Kuzio, "Ukrainian President Orchestrates Oligarchic Takeover," RFE/RL Newsline, vol. 6, no. 233, Part II, December 13, 2002.

24 The United States suspended US $54 million in aid under the Freedom Support Act. These funds were to be directed to the central government authorities in assisting in administrative and legal reform and represented 35 percent of total FSA support allocated for Ukraine in the 2002 fiscal year. U.S. Department of State, "U.S. Suspends Some Aid to Ukraine over Kolchuga Sale to Iraq: Excerpt from September 24 State Department Press Briefing," September 25, 2002 [online], http://usinfo.state.gov/regional/nea/iraq/text/0925usukr.htm (retrieved February 6, 2003).

25 Vasylenko claims that the recommendation for his removal is unfounded insofar as the constitution does not prohibit the initiation of criminal investigation against the Ukrainian president. "Judge Vasylenko Regards As Political Reprisals of Recommendation of Supreme Council of Justice on his Dismissal," Ukrainian News Agency, February 6, 2003 [online], http://www.ukranews.com/cgi-bin/openarticle.pl?lang=eng&id=313278 (retrieved February 6,2003).

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