UKRAINE: YUSHCHENKO PUSHING, REGIONS NOT BACKING

C O N F I D E N T I A L SECTION 01 OF 03 KYIV 001036

SIPDIS

SIPDIS

E.O. 12958: DECL: 05/03/2017
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: YUSHCHENKO PUSHING, REGIONS NOT BACKING
DOWN

KYIV 00001036 001.2 OF 003


Classified By: Ambassador for reasons 1.4(a,b,d).


1. (C) Summary. During what normally would have been a
quiet, five-day holiday weekend, the presidential and
Rada/government teams were hard at work upping the ante in
the current political crisis, with neither side appearing
ready yet to relinquish hardball tactics and return to
negotiations. President Yushchenko went on the offensive,
giving a strong speech to a crowd of 20,000 on April 28 and
then firing Constitutional Court Judges Pshenychniy and
Stanik--both appointed by former President Kuchma--on April
30 and May 1, respectively, for allegedly violating their
oath of office. Presidential Secretariat Deputy Head
Vasyunyk told Ambassador on May 3 that they had needed to
take action--sitting around had repeatedly lost Yushchenko
ground in the past. In response, the coalition amped up its
rhetoric; Prime Minister Yanukovych, Speaker Moroz, and
Communist Leader Symonenko issued a May 2 statement charging
that Yushchenko's latest actions could lead to tanks in the
streets and civil war in Ukraine; a BYuT back-bencher fired
back that if the Government continued to provoke the
President, then he might have to use force against the Rada.
PM adviser Gryshchenko told Ambassador that they were even
considering cutting funding to the Presidential Secretariat.
The Rada also passed a resolution on April 30 calling for
concurrent presidential and parliamentary elections by the
end of the year.


2. (C) Comment. Unfortunately, Yushchenko and Yanukovych have
still not resumed talks since Yushchenko issued the second
decree on April 26, although Ambassador continues to talk to
all sides and encourage them to restart the process to find a
political compromise. Vasyunyk underscored to Ambassador
that the President's side strongly mistrusted the PM's team;
Gryshchenko's comments suggest the feeling is mutual. There
are, however, small signs that negotiations are
continuing--Yanukovych has said publicly that elections are
possible based on political compromise, whereas earlier he
had demanded a CC decision. In addition, the Central
Election Commission (CEC) went back to work after an extended
sick-out by coalition-affiliated commissioners, issuing a
series of resolutions to prepare for June 24 Rada elections.
One positive note in the crisis is that both sides have
turned to Brussels and Strasbourg for validation rather than
to Moscow. Although they may not be playing in a fully
democratic manner, both sides at least seem to understand
that the external perception of democracy and European values
remains important as they seek to prevail in the power
struggle. End summary and comment.

Yushchenko Rallies the Crowd...
--------------


3. (SBU) On April 28, Yushchenko addressed an opposition
crowd of about 20,000 on European Square, reiterating his
promise of preterm elections, although he did name a date.
(Embassy Note: This was Yushchenko's first appearance at a
demonstration in downtown Kyiv since the November 2005
gathering of Orange leaders on the Maidan to mark the
one-year anniversary of the beginning of the Orange
Revolution. End Note.) The President was on message and
relatively brief, arguing that elections were critical to
overcome "political corruption" in the country and blaming
the Rada for precipitating the current crisis. The crowd
braved a rain shower and listened closely, breaking in
several times with chants of "Yu-shen-ko." Interestingly,
Yushchenko acknowledged that the results of new elections
were likely to return the same political forces to the Rada,
with the possible exception of the Socialists. He ended his
speech with an appeal--literally begging the opposition
leaders to forgive each other's past sins and remain united.

...Then Cleans the Court of two Kuchma appointees
-------------- --------------


4. (SBU) On April 30 and May 1--government
holidays--Yushchenko issued decrees firing two of the three
Constitutional Court judges appointed by former President
Kuchma for violating their oath of office. He first
dismissed Deputy Court Chairman Pshenychniy for violating
court procedures and therefore his oath of office; the
President's team alleges Pshenychniy assigned the case
regarding the April 2 presidential decree to ally Judge
Stanik on April 3, when Chairman Dombrovskiy was in the Court
and should have been the one to make such a decision. (Note:
We were shown the paperwork with Pshenychniy's signature and
the date. End note.) The next day, Yushchenko dismissed
Stanik, whom the Security Service of Ukraine (SBU) has
implicated in corruption--close family members having
recently received $12 million in real estate and cars.

KYIV 00001036 002.2 OF 003


Regions MP Kiselov publicly urged the two judges to keep
working and ignore the decrees; the coalition has already
appealed the decree firing Pshenychniy to the CC for a
ruling. Stanik has been vocal in her criticism of
Yushchenko's move, but Pshenychniy has been quiet.


5. (C) Comment. Yushchenko based the dismissals on
constitutional articles 106 (amended in 2004) and 126, which
state that the President can fire the six judges appointed on
the presidential quota for a variety of causes, including
violating oath of office. The Law on the CC, passed prior to
constitutional changes coming into effect, is somewhat
contradictory; it gives the Rada the right to dismiss CC
judges for violating the oath of office without mention of
the President's role. Should the Court take up the
President's right to fire CC judges, his team would appear to
have a solid legal argument, backed by extensive precedent,
that says the constitution carries more weight than a law.
On May 3, the members of the Constitutional Court remained
behind closed doors and were not talking to the press. It is
unclear at this point whether Pshenychniy and/or Stanik have
followed the decree and stayed away from the CC or whether
they heeded the Rada's call to remain at their posts and are
taking part in the deliberations (our presumption is that
they are not). End comment.


6. (C) Deputy Head of the Presidential Secretariat Vasyunyk
justified the dismissals to Ambassador May 3, arguing that
the presidential team had needed to take action. Yushchenko
had sat around for nine months after agreeing to Yanukovych's
return as PM, only to be steamrolled repeatedly as the PM's
team broke every deal that the two sides had reached. In
Vasyunyk's view, the President believed that he needed to
take the offensive--there was no trust left for the PM's
team.

Coalition Bumps up Rhetoric...
--------------


7. (SBU) On May 2, the leaders of the coalition, PM
Yanukovych, Speaker Moroz, and Communist Party leader
Symonenko released a joint appeal to PACE, the EU, and all
Ambassadors in Kyiv to help mediate the situation. They
accused Yushchenko of trying to paralyze the CC and legal
organs and having usurped power from the other branches of
government. They declared: "his next step could be a decree
ordering tanks onto the streets... Current actions by the
President of Ukraine are dangerous for the State and people.
Ukraine is in danger of legal chaos and civil war."
Privately, PM adviser Gryshchenko told the Ambassador that
the coalition was considering no longer recognizing
Yushchenko as President and cutting funding to the
Presidential Secretariat. (Note: the Cabinet cut funding to
the Foreign Ministry in January for several weeks as part of
the effort to force out former FM Tarasyuk. End note.)


8. (C) Young Regions MP firebrand Miroshnychenko also raised
the rhetorical stakes by proclaiming that the coalition would
guard the Rada from any attempt to seize it, alleging
Yushchenko might resort to force. Miroshnychenko confirmed
to us privately that there were MPs in the Rada around the
clock now, although he declined to say how many; their task
was to monitor the situation and be on the scene should
anything change. BYuT backbencher MP Syvulskiy did not help
calm the waters by commenting on Fifth Channel May 2, in an
interview primarily making the case for new elections, that:
the "use of force is not ruled out if the Rada keeps
provoking (Yushchenko). That means that measures will have
to be taken to make the Rada ... halt its activity."

...But Doesn't Rule Out Elections
--------------


9. (SBU) At the same time, Yanukovych said at an April 28
press conference that he was "ready for elections, if they
were the result of a political agreement rather than by any
requirement of the constitution." Although he encouraged
Yushchenko to wait for a CC decision, this was the first time
he did not make a Court ruling a precondition for new
elections. He also accused the SBU of "working like the KGB
in Soviet times," and asked the President to meet with him
soon. (Note. Vasyunyk told us they were considering a
meeting, but nothing had been scheduled. End note.)
Yanukovych echoed this more conciliatory position on
elections at a May 3 CabMin meeting, where he said that if
there was a consensus opinion that early elections were the
only solution to the crisis, they would begin preparations
for early elections. He cautioned that work was needed on a
number of related laws, a position Yushchenko has also
stressed.

KYIV 00001036 003.2 OF 003




10. (C) Comment. The Rada also passed a non-binding
resolution on April 30 calling for concurrent parliamentary
and presidential elections before the end of the year--a
threat Regions has been throwing around with increasing
regularity for the past month. Interestingly, only 234 of
254 MPs registered in the hall supported the resolution
(reporters estimate less than 100 MPs were physically
present). Regions MP Chornovil criticized it publicly,
matching the private criticism from Regions MP and financier
Akhmetov, bringing into question how unified Regions is on
this position, or whether it is intended as negotiating
pressure against Yushchenko.

CEC Goes Back to Work
--------------


11. (C) The CEC regained a quorum on May 2, when Communist
commissioner Raykovskiy (protect - not generally known in
public) returned to work after a long "sick-out", allowing
the CEC to immediately issue a number of resolutions
pertaining to early Rada elections. The CEC asked the
Cabinet to allocate funds for a voter registry; they also
approved forms for party lists and for nominations to sit on
regional and local polling commissions, the bodies which run
the voting and count the votes. A USAID NGO partner told us
that the CEC had been working on the decrees for the past few
weeks, but the open use of the June 24 election date
suggested a level of comfort at the CEC that early elections
might actually go forward. The contact also suggested
Raykovskiy's return may indicate that the Communists are
hedging their bets, since they might get more seats in a new
election.


12. (C) CEC Chairman Davydovych also announced May 2 that he
was extending the deadline to midnight May 3 for the three
parties in the coalition to submit their nominees to sit on
the territorial election commissions (TECs). Parties
represented in the current Rada have the right to submit
nominees first, but if they choose not to do so, seats could
be filled by other political parties or CEC designates. As
of COB May 3, the coalition had not submitted nominations,
but the NGO partner told us that Regions could ignore
Davydovych's timeline for now without serious repercussions.
Given the importance of Regions' participation to give the
elections validity, the CEC could either appoint Regions
people to TECs without formal nominations, or they could
appoint temporary members at the CEC's discretion with the
understanding that Regions would be allowed to replace them
later.


13. (SBU) The CEC also canceled BYuT's 2006 voter list as the
bloc had requested. The CEC did not, however, cancel Our
Ukraine's party list because Kinakh's Party of Industrialists
and Entrepreneurs, one of six in the bloc in 2006, objected.
This had stymied, at least for now, the opposition's gambit
to deny the Rada a quorum. The plan had been for both BYuT
and OU to resign, so that there were fewer than 300 Rada
members, and to cancel their party lists, so that the CEC
could not refill vacated seats.


14. (U) Visit Embassy Kyiv's classified website:
www.state.sgov.gov/p/eur/kiev.
Taylor