Authoritarian Learning and the Politicization of Justice: The Tymoshenko Case in Context

Abstract

On October 11, 2011, former Ukrainian Prime Minister Yuliya Tymoshenko was convicted on abuse of office charges by Kyiv’s Pechersk District Court. The sentence included 7 years in prison, a 3 year ban on political activities, and a 1,516,365,234 UHA fine (about 190 mln USD). The international reaction has been unanimously negative. In a rare display of consensus, Russia, the EU, the US, individual European countries, and international organizations (OSCE, NATO, Council of Europe) have called the verdict an example of politically-motivated selective prosecution and have sharply criticized the Ukrainian judiciary for allowing the politicization of the criminal justice process. Despite the international outcry, Tymoshenko has lost all appeals in Ukraine and is currently serving out her sentence at a prison colony near Kharkiv.

What is the significance of the Tymoshenko case for Ukrainian political development? More broadly, what does this prosecution tell us about the dynamics of hybrid regimes? In this paper, I argue that the Tymoshenko case exemplifies a trend towards the politicization of justice, which is, in turn, a manifestation of authoritarian learning. Although the Ukrainian judiciary has long suffered from pressure and interference from incumbent politicians (see Popova, 2012; Trochev, 2010), the politicization of justice appears to have increased significantly since Viktor Yanukovych won the presidency in 2010. The criminal investigation of Tymoshenko’s role in the 2009 gas crisis was triggered by a parliamentarian from Yanukovych’s party and sustained by officials from the Yanukovych administration. Before the case even entered the courts, the Yanukovych administration seems to have influenced the selection of judges who would hear the allegations against Tymoshenko both at the first-instance level and on appeal. Finally, the Tymoshenko prosecution is only the most visible example of the Yanukovych administration’s use of criminal justice as a tool of achieving political goals. Judicial practice indicates that the number of abuse of office/corruption prosecutions against national politicians has spiked up suddenly and dramatically in the 2010-2012 period. Thus, we can talk not only of the politicization of the case against Tymoshenko, but the increasing politicization of the Ukrainian criminal justice process.

Keywords: law and politics, judicial independence, Ukraine, post-Soviet