UKRAINE: CONSTITUTIONAL COURT TAKES UP

C O N F I D E N T I A L SECTION 01 OF 03 KYIV 000871 SIPDIS SIPDIS E.O. 12958: DECL: 04/11/2017 TAGS: PGOV PREL PINR UP SUBJECT: UKRAINE: CONSTITUTIONAL COURT TAKES UP YUSHCHENKO'S DECREE AMIDST POLITICAL MANEUVERING REF: KYIV 790 KYIV 00000871 001.2 OF 003 Classified By: Ambassador for reasons 1.4(a,b,d). ¶1. (SBU) Summary. As President Yushchenko and Prime Minister Yanukovych meet daily to try to reach a political compromise to end the crisis sparked by Yushchenko's April 2 decree to dismiss the Rada and call new elections and the coalition/Rada's refusal to accept the decree, attention has focused on the Constitutional Court (CC). The Court decided April 5 to accept the petition of 53 Regions' MPs to review the decree and assigned emergency status to the case, mandating a decision within 30 days. Embassy sources on the Court indicated privately that 8 of the 18 judges were prepared to rule against the decree, with 4 on the fence (10 are required for a decision),but also that the Court's legal department has issued an opinion that the President's decree has constitutional grounds to be considered legal. On April 10, five judges recused themselves from the case, issuing an open letter and holding a press conference to claim there was currently too much political pressure on the judges to allow the court to review such a case properly and offer a fair ruling. The court initially announced April 10 that hearings in the case would commence April 11, but Court Chair Dombrovskiy, returning from Easter vacation, postponed the opening until April 17 to allow more time to prepare for oral arguments. Nevertheless, both coalition and opposition held demonstrations April 11 outside the Constitutional Court building, focusing the public eye directly on the Court. ¶2. (C) Comment. For a variety of reasons--the lack of rulings in nine months, apparent poor case management, alleged threats against and efforts to buy judges, efforts by political forces to deny the court a quorum--the Court's credibility has been undermined in the eyes of many Ukrainians. Despite this, all the primary political forces in Ukraine--PM/Regions; President/Our Ukraine, and Tymoshenko--have lodged appeals to the Court on various aspects of post-political reform power arrangements. As imperfect a mechanism as it may be, the court has an important role to play to sort out various constitutional issues. However, the current politicized reality may suggest that a political compromise rather than a court decision could ultimately be a more effective path forward in resolving the ongoing crisis. End summary and comment. The Court Reviews a Case -------------- ¶3. (SBU) The Constitutional Court announced on April 10 that it had decided that the full Court would review President Yushchenko's decree disbanding the Rada. Since the Court gave the case urgent status, the Court must render a decision within 30 days. (Note: Since the Court accepted the appeal on April 5, there should be a decision by May 5, although many expect it sooner. End note.) Moreover, one CC judge told us privately that the Court would not consider any other issues, including Tymoshenko's imperative mandate petition, until this case was completed. ¶4. (C) The case has been assigned to Deputy Court Chairman Suzanna Stanik, who will serve as reporting judge. It will be her responsibility to collect all necessary documentation, talk to experts, and to write up the Court's final decision. Oral arguments are currently set to begin April 17. Court staffers told us privately April 11 that the court's legal department issued a legal opinion that the Presidential decree could be considered constitutional; this decree, which an Embassy staffer has seen, has been circulated among the court judges, ten of which must agree on a ruling for it to be issued. ¶5. (C) Bio note: Stanik is one of three remaining judges on the Court appointed by President Kuchma--she served as Kuchma's Justice Minister (1997-2001) and is alleged to be a close friend of Kuchma's wife. An NGO contact told us that a CC judge had told him that Judge Stanik had repeatedly left deliberations to call the Rada with updates, although we have no independent confirmation of this allegation. Five Judges Protest Political Pressure, threaten recusal -------------- -------------- ¶6. (SBU) Five CC judges, three of whom were appointed by Yushchenko, one by the Rada, and another by the Congress of Judges, held a press conference on April 10 to announce that they were refusing to participate in the hearings on the decree unless court working conditions improved, because there was currently too much political pressure on the Court for it to provide an honest assessment. Their statement, in KYIV 00000871 002.2 OF 003 part, stated: "Regretfully, some well-known statesmen and political figures are making premature statements that the decree is unconstitutional, whereas the constitution says only the Constitutional Court is authorized to check the constitutionality of the decree. In fact they order (specific) decisions ... and thus, interfere with the court's work." ¶7. (SBU) It is generally acknowledged that all major parties--Regions, Our Ukraine, and BYuT--have been trying to influence the Court in various ways. Acting SBU Head Nalyvaichenko had confirmed to Ambassador two months ago that their investigation found that CC judges had been pressured by Regions and BYuT. An informal straw poll of judges in early January indicated that 14 were ready to endorse the fundamental principle of judicial review and overturn the August 6, 2006 law banning the court from reviewing constitutional changes enacted December 8, 2004, yet by time a preliminary vote was taken in mid-February in the case, a minority of judges retained that position, amidst wide-spread rumors of judge-buying by the coalition (the case remains stalled on the court's docket). Yushchenko's decision to call CC judges into his office on March 27 similarly raised eyebrows. ¶8. (C) Comment: A second NGO activist told us that one judge (among the five who spoke out April 10) privately confided April 4 that judges were being physically threatened and that he was afraid for his life. The five recused judges all requested bodyguards; the SBU has since complied with the request. There have also been accusations that the SBU or private parties were bugging some of the judges' phones, although whether the report is true, and if so, at whose behest, was unclear. The first NGO contact also told us that Court Chairman Dombrovskiy had announced in a closed court session on April 4 that he was thinking of resigning, but that had caused such a stir among the other judges that he had promised not to step down. Even before the morning internal court deliberations had concluded, however, PM Yanukovych and Speaker Moroz publicly claimed that Dombrovskiy had resigned (reftel). Presidential Backup Plan: Deny a Quorum? -------------- ¶9. (C) Since only 12 judges are required for a quorum, the refusal of five judges to participate would not deny the court a quorum. However, coalition supporters started circulating rumors April 9 of a Presidential plan to dismiss the six judges on the Presidential quota in an effort to deny the court a quorum. The Presidential Secretariat disavowed the report, but presidential adviser Roman Bezsmertniy told Ambassador on April 11 that if Yushchenko believed that the Court would rule against him, Yushchenko may consider removing the six judges on the presidential quota from the Court. Combined with the two other judges threatening self-recusal (one appointed by the Rada, one by the Congress of Judges),that would reduce the Court to 10 sitting judges, below the quorum of 12, pushing resolution of the crisis back to a politically-negotiated settlement. (Note: the Constitutional Court lacked a quorum from November 2005 until August 2006 because the coalition parties--Regions, Socialists, and Communists--refused to swear in judges nominated by the Congress of Judges and the President, fearing the Court might reverse political reform contained in the December 8, 2004 amendments). Public Pressure on Court Too -------------- ¶10. (SBU) On April 11, People's Union Our Ukraine party leader Vyacheslav Kyrylenko led about 1500 supporters from European Square to the Constitutional Court to hold a rally entitled, "Honest Court, Honest Decision/Elections." Three hundred Regions supporters gathered around the Court to hold a counter demonstration. Police were reinforced to keep the peace if necessary, but Embassy observers indicated that there was no signs of violence or confrontation. (Note: The arrival of portable toilets outside the Court late April 11 suggests that the mushrooming tent camps which have sprouted by the Rada, the Maidan, and the Central Election Commission in the past week may expand to include the Court as well.) What Has the Court Been Doing? -------------- ¶11. (C) Although the Court has yet to issue a ruling since being seated in August 2006, it had begun to examine other important cases as well before everything was set aside to review the decree. Under Court procedures, panels of judges KYIV 00000871 003.2 OF 003 (6 out of 18) are assigned new cases to make recommendations to the full Court as to whether the case merits Court review. According to the Court website, panels were considering petitions regarding the August 2006 law banning the CC from reviewing the 2004 constitutional reforms (on which a preliminary vote was held in February),as well as reviewing the constitutional reforms in general. BYuT's petition regarding imperative mandate was still with the Court Secretariat and had not yet been passed to a panel. While a SIPDIS panel initially decided that the Court should not review the CabMin law, it will present that recommendation at a future full Court session, where the full Court could overrule the panel decision and choose to hear the case. One judge told us that not all of the delays were due to political interference; there was also a lot of bad case management. ¶12. (U) Visit Embassy Kyiv's classified website: www.state.sgov.gov/p/eur/kiev. Taylor