C O N F I D E N T I A L SECTION 01 OF 05 KYIV 001245

SIPDIS

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THIS CABLE HAS BEEN CHANCELLED - THE CORRECTED COPY IS
KYIV 1244
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SIPDIS

E.O. 12958: DECL: 05/24/2017
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: DAS KRAMER VISIT: POSSIBLE WAY FORWARD ON
NEW ELECTIONS ON THE ROCKS?


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reached another agreement, setting the election date for
September 30. Yanukovych told Yushchenko that Regions
officials would sign it and he would get Moroz and Symonenko
to sign it too. Yushchenko said that he understood that the
PM was in a difficult position and under a lot of pressure,
but that he had the ability to decide and resolve the
situation. Nevertheless, in Yushchenko's view, the PM keeps
backing away. During the meeting, Yushchenko stated to DAS
several times that he was committed to resolving the current
standoff in a democratic manner without resorting to force.


6. (C) Yushchenko said that he had needed to make decisions;
one had been to remove Piskun as Prosecutor General--he was a
politicized advocate for Regions, which controlled the entire
PGO. In Yushchenko's view, Piskun had remained engaged in
politics, in part because he had not yet resigned from his
Rada seat. (Note. The constitution says the President can
only fire the PGO with the Rada's consent, but Yushchenko
cited a contradictory constitutional article and law in
defense of his decision. In a late evening public address,
the PM refuted Yushchenko's claim, noting that Piskun's
letter of resignation from the Rada was officially registered
May 14. End note.) In addition, the CC was broken--Judge
Stanik was corrupt, other judges were influenced by Regions
and Medvedchuk and the Russians. As President, he had the
constitutional right to remove judges on his quota, which he
did. The CEC was also politicized. The President told DAS
Kramer that he had heard the criticism that he was trying to
usurp power; however, if he had wanted to usurp power, he
wouldn't do it through elections, but sometimes he had to
take steps to pressure the other side.


7. (C) If there is no progress in the next few days,

Yushchenko said the NSDC would become the only available
answer in a shrinking set of tools. He will hold an NSDC
meeting on May 29, then 171 opposition MPs will resign and
there won't be a constitutional Rada anymore. He knew that
they needed to intensify contact with the PM in order to
bridge the East-West divide and eventually they had to get to
a broad coalition. (Note: This is the first time that
Yushchenko has openly expressed a preference for a broad
coalition in any meeting with us. End Note.) He had talked
to Tymoshenko about this, but she and OU leader Kyrylenko
were now a complicating factor, concerned that political
intrigue was going on.


8. (SBU) On the evening of May 23, Yushchenko gave a brief
address to the nation, in which he promised elections would
happen without specifying when, and spent the bulk of his
time discussing the problems with the Constitutional Court
and the three judges he fired but who are still working. He
said the Court was "paralyzed and demoralized." He said that
the Court had not issued a single ruling in the first eight
months after it was seated and that it could have addressed
the issues of imperative mandate--when MPs switch
factions--last fall when the appeal was sent, contributing to
the current political crisis. He concluded that the Court
was losing its constitutional legitimacy and demanded that
the PGO investigate the CC, that the Supreme Court stop the
practice of using court rulings for political ends, and that
all political forces stop pressuring the CC.


9. (C) Comment. On the margins of the meeting with
Yushchenko, Deputy Presidential Secretariat Head Chaliy told
DAS Kramer that the PM was under pressure to back away from
compromise from five different sources: the radicals within
Regions; the Communists and the Socialists; Rada Speaker
Moroz; PM Chief of Staff Lyovochkin and Minister of Fuels and
Energy Boyko representing RosUkrEnergo (RUE); and the
Russians. Chaliy claimed that the document that the
Yanukovych team sent to him after the May 23
Yushchenko-Yanukovych meeting was different from what the
President and PM had agreed--and therefore, the document had
not yet been shown to the President.

Yanukovych Says He Wants A Deal Too
--------------


10. (C) With no reference to his meeting with Yushchenko or
any hint that they might have reached an agreement,
Yanukovych laid out his vision for political compromise for
DAS and Ambassador on May 23. Two issues remain, he said;
they need a legal basis for holding pre-term
elections--without it, the coalition won't participate--and
the Rada needs to adopt a package of legislation to ensure
fair and transparent elections. Only after these laws are
adopted by the Rada will it be possible to turn to the issue
of how to conduct pre-term elections. After that, if enough
opposition deputies resigned from their factions in the
Rada--as Tymoshenko and Yushchenko have suggested--that would

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leave the Rada without a quorum. At that point the President
would have the legal basis to issue a decree that would call
pre-term elections based on a constitutional provision (the
Rada must have at least 300 deputies); the PM indicated
specifically that he would find this to be acceptable. The
coalition could then make clear to their voters that they had
not made a political deal to hold these elections; the
constitution required that pre-term elections be held.


11. (C) With regard to coalition calls for a constitutional
amendment as part of the deal--a process that would take
months--Yanukovych said that this was "an issue for
discussion and compromise," indicating that it was not a hard
and fast demand. Yanukovych suggested that the Rada should
return to work next week, with the opposition deputies in
their seats. (Note. Yushchenko told the press prior to the
meeting with the PM that opposition deputies were prepared to
go back to work next week as well. End note.) Yanukovych
stated clearly that the government will not require a
Constitutional Court decision on the President's decrees to
resolve the crisis. The President had made a mistake in
taking on the CC--and his decisions regarding this court
could have implications for the judiciary across the board.


12. (C) The coalition view, Yanukovych argued, has always
been that they do not need pre-term elections to resolve the
political crisis; however, Yushchenko had chosen the more
radical approach. Yanukovych noted that the President had
many "radicals" around him who swung from one extreme to the
other without ever finding middle ground. However, he
repeated several times that he was confident that Ukraine
would emerge stronger from this crisis. Yanukovych ended the
meeting by repeating a statement that he posted on his
website earlier in this crisis--the President's team has the
cards right now. He can play them, but this is the dangerous
way, outside of the law, that could lead to the division of
Ukraine and civil war; and Yushchenko would be responsible.

Tymoshenko Doesn't Trust the PM
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13. (C) A tense Tymoshenko confirmed late May 23 to DAS and
Ambassador that the deal on the table was much the one that
Yanukovych had described, although she was surprised that
Yanukovych was on board with it. She said that the election
would be September 30, but the date would not be announced
immediately. Instead, the Rada faction leaders will announce
it, so that it appears to be a Rada decision, which will
protect Yanukovych's ratings (since he will not look like he
conceded or failed.) She said that BYuT was ready to vote
for the small package of legislation and to resign from the
Rada to bring it below quorum, triggering its dissolution.


14. (C) Tymoshenko also evinced surprise that Yanukovych had
said that a CC ruling was not necessary. She said that she
and Yushchenko had long been saying that the CC was not the
proper arbiter of this conflict, but it was the first time
she had heard of Yanukovych saying this. She remained
"guardedly optimistic," she said, cautioning that
Yanukovych's words and deeds often did not match. She also
thought that while Regions would be campaigning, they would
work in parallel to try to prevent or obstruct the elections,
possibly through the Constitutional Court or finding a way to
claim Yushchenko had violated the agreement and then backing
out of the election. She also said that the only safeguard
for the elections is for the President to stand firm and they
will be pushing him to do so the whole way to the ballot box.
The more forceful Yushchenko is, she argued, the more
compromising Yanukovych becomes.


15. (C) Tymoshenko maintained the position that if
Yanukovych and the coalition backed away from the new deal,
tough measures should be used. When asked to define "tough
measures," she said that the NSDC should take control of the
process and take the following three steps, adding that this
should all be done by May 26 if progress did not continue.
First, it should appoint new members to the CEC who will
facilitate the election process. Then it should appoint a new
acting Prosecutor General; if the PGO and CEC were on board
with elections, the Yanukovych government could keep working
without problem. Finally, the NSDC would subordinate all
armed forces and units in the country to the President so
that they could not be dragged into the conflict. (Note.
Tymoshenko's most trusted deputy, Oleksandr Turchynov, was
named First Deputy Secretary of the NSDC earlier May 23,
which would presumably give her the ability to push the NSDC
in that direction. End note.)

Plyushch: Closer, but Need to Save Face
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16. (C) NSDC Secretary Plyushch, who attended the May 23
Yushchenko-Yanukovych meeting, told DAS Kramer on May 24 that
the two Viktors had eventually agreed on a September 30 date
for elections after Yanukovych had initially tried to avoid
agreeing on a date, suggesting that they leave it up to
faction leaders to decide. After Yanukovych departed KYIV to
attend an evening soccer match in Donetsk, followed by a May
24 CIS PM meeting in Yalta, the process of agreeing on the
meeting's minutes ran into difficulty. DPM Azarov had tried
to include 20 issues as preconditions for Regions' agreeing
on September 30 elections; Plyushch claimed that nine of the
issues had not even been discussed at previous working group
meetings. There was no guarantee that the process of adding
new demands and conditions would not continue. Perhaps the
biggest hurdle was Regions' demand to amend the Constitution
before elections. In practice, that meant waiting at least
six months, since there needed to be an initial Rada vote on
changes, a Constitutional Court review, then action by 300
MPs in the next Rada session. But there were no longer 300
MPs participating in the Rada. Kramer mentioned that
Yanukovych had indicated to him on May 23 that Constitutional
amendments were not a mandatory element in the package.


17. (C) Plyushch felt the process was closer to resolution;
it was encouraging that both Moroz and Yanukovych indicated
May 23 that the resignation of 190 BYuT and OU MPs could form
the basis for the Rada's dissolution. But there remained an
issue of saving face for all sides. One major problem was
that throughout the 52 days since Yushchenko's first decree,
Yanukovych consistently had said one thing but did another.
Yushchenko had said on May 4, after Yanukovych had agreed to
new elections, that there were no winners or losers in this
process. But it was clear that some political forces were
ready/willing to contest elections, and others not. The
President had the right to call new elections, as well as
dismiss judges on his quota. The Ukrainian people had the
right to vote - or not. Political parties had the right to
campaign and propose their vision to the electorate, but not
to set terms and conditions for an early election date, a
presidential prerogative.

Monkey Business at the Constitutional Court, PGO
-------------- ---


18. (C) The Court continued its work this week, beginning
with the May 21 announcement from Acting Chairman Pshenychniy
that the Court had voted to throw out the case on the April 2
presidential decree and would turn to the April 26 decree.
Stepan Havrysh, one of Yushchenko's nominees to replace the
judges Yushchenko fired April 30-May 1, told the press that
he expected the Court will find the second decree
unconstitutional. Also on May 21, one Yushchenko appointee,
Judge Lylak, submitted his resignation to the President. He
has not commented publicly, but Presidential Secretariat Head
Baloha told the press that Lylak had decided to step down in
protest of Pshenychniy's takeover of the Court. A second
Yushchenko appointee, Judge Shyshkyn, has been "sick" and
told us that he would not be going to work, also because of
Pshenychniy's promotion and the general lack of
professionalism in the Court.


19. (C) On May 23 Tymoshenko told us that five judges were
now "ill" and no longer attending sessions. Pshenychniy said
on May 24 that only 10 judges had come to the session he
called. A group of coalition MPs, along with two busloads of
police, formed a barrier around the Court on May 24 to keep
the presidential side from preventing the three fired judges
from entering the building.


20. (C) Also on May 24, Plyushch announced that Yushchenko
had fired Prosecutor General Piskun, whom the President had
strongly criticized two days ago for not actively
investigating the CC and the CEC. After refusing to leave
his office in the morning, Piskun left and then returned with
a group of coalition MPs. After not being allowed back into
the office, approximately 10 Berkut elite policemen appeared
and tried to break the door down, according to press reports.
Other reports suggested Presidential Secret Service
personnel had earlier deployed to the PGO building. (Note.
This is the first time we have seen security personnel coming
to the aid of one side or the other in the political crisis.
End note.) Reportedly at least one security officer was
slightly wounded in this minor clash.


21. (C) Reacting strongly to the events at the PGO,
Yushchenko called an emergency meeting of the power
ministers, and then held a televised press conference the
evening of May 24, condemning the interjection of force into
the ongoing political situation. He singled out Interior

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Minister Tsushko as responsible for the order, calling on the
PGO to prosecute Tsushko for taking this step. Yushchenko
also called on all law enforcement and security agencies, as
well as soldiers and officers, to refuse any orders to use
force since this would be illegal. He said that those who
gave the orders to use force, as well as those who chose to
follow those orders, would have committed a crime.


22. (U) DAS Kramer did not have an opportunity to clear this
cable.


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