C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000922

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SIPDIS

E.O. 12958: DECL: 04/17/2017
TAGS: PGOV PREL PHUM UP
SUBJECT: UKRAINE: CONSTITUTIONAL COURT BEGINS HEARINGS ON
PRESIDENTIAL DECREE

REF: A. KYIV 906

B. KYIV 871

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Classified By: DCM Sheila Gwaltney for reasons 1.4(a,b,d).


1. (SBU) Summary. The Constitutional Court began full court
hearings on April 17 into the constitutionality of
Yushchenko's April 2 decree dismissing the Rada and calling
new elections, while accusations of bribery, threats, and
political pressure swirled around the proceedings. Despite
earlier warnings by some judges that they might boycott
proceedings due to concerns about political pressure placed
on the court, all 18 judges attended the opening hearing, in
which they decided a few procedural issues and formally
designated most of the next two weeks for further hearings.
On the eve of the hearing April 16, Acting Head of the
Security Service (SBU) Nalyvaychenko, considered loyal to
President Yushchenko, held a press conference to state that
the SBU had evidence of $12 million worth of recent property
transfers to a close relative of reporting judge Susanna
Stanik and of tampering with the car of the close relative of
one of the judges who had complained of threats.
Yushchenko's Court representative Shapoval also alleged in
his opening court comment that the judges had violated court
procedure April 3 in assigning the case to Stanik. After a
three day absence from the streets, coalition supporters
returned, with an estimated 1,500 demonstrators surround the
court building, occasionally disrupting traffic.


2. (C) Comment: The SBU's claim of confirmation of rumored
efforts to bribe and intimidate the court in the run-up to
its most important case will likely further muddy the waters
surrounding the Court. Political leaders are positioning
themselves rhetorically: both President and Prime Minister in
the past few days have said that they would accept the
Court's ruling, although the PM told Russian ORT April 16
that he was confident the court would overturn the decree,
and that such a ruling could possibly lead the Rada to

impeach the President, among other outcomes. Opposition
leaders Tymoshenko, Kyrylenko, and Lutsenko held a joint
press conference late April 17 to say that concerns about the
process meant that they could not accept a decision against
Yushchenko's decree. Preliminary voting on the initial
procedural issues indicates that the Court may truly be split
9-9, as opposition leader Tymoshenko predicted to Ambassador
April 12 (ref A). If that split remains, renewed focus may
again shift to negotiations between Yushchenko and
Yanukovych, both of whom were traveling in western Europe
meeting European leaders April 17, Yushchenko in Brussels and
Yanukovych in Strasbourg. End summary and comment.

Court Starts Off on Contentious Foot
--------------


3. (SBU) Despite earlier threats of recusal by five judges
due to alleged political pressure, all 18 judges attended the
April 17 hearing of an appeal by 53 Regions MPs of
Yushchenko's April 2 decree dismissing the Rada and calling
for early elections. All interested parties were represented
in the Court, including the official Presidential and Rada
Court representatives, two MPs on behalf of the coalition,
and three lawyers on behalf of the CabMin, led by Deputy
Minister of the Cabinet of Ministers Lukash, Yanukovych's
lawyer in the 2004 Supreme Court case on the presidential
elections. Court Chairman Dombrovskiy warned that, because
of the large number of claims and questions in front of it,
the Court would not be able to rule quickly.


4. (SBU) Presidential representative Shapoval presented a
letter from Yushchenko expressing concern over allegations of
corruption on the part of Reporting Judge Stanik (details
below), as well as possible violations in court procedure
when the case was assigned by deputy Court Chair Pshenychniy,
rather than Court Chair Dombrovskiy, on April 3 to Stanik to
serve as reporting judge. (Note: The reporting judge is in
charge of gathering all necessary information, calling the
witnesses, and drafting the ruling. End Note)


5. (SBU) The Court's first decision was to schedule further
plenary sessions on April 18-19 and April 23-26 by a vote of
11-6. As part of this resolution, Reporting Judge Stanik
initially attempted to force a vote on draft rules of
procedure for examining the case without distributing the
text to the judges. After a number of judges protested,
Court Chair Dombrovskiy ordered copies be made and
distributed to the judges, who then criticized the content as
not clearly laying out the order and procedures for
proceeding with examination of the case, leading to testy
exchanges with Stanik.


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6. (SBU) Stanik then presented the essence of the case, and
the Court ruled on three motions from the coalition MPs. The
three motions, which touched on introducing additional
documentation from the Rada and Presidential Secretariat,
addressed a key underlying issue--whether the Rada is
currently empowered to act. In the debate on whether to
allow introduction of two Rada resolutions condemning the
decree, several judges argued that the decree should be
considered a normative act in force until the Court acted and
that, therefore, the Rada could not provide documents adopted
after the April 2 dissolution. In the end, the motion was
rejected in a 9-9 vote, highlighting the current divide on
the Court.

Accusations of Bribery, Threats, Procedural Violations
-------------- --------------


7. (SBU) Judge Stanik stands at the center of a controversy
about alleged bribery and case assignments. Initial
accusations that Stanik's family having received two
multi-million dollar apartments in Kyiv came from OU MP
Knyazevych. Acting SBU Chief Nalyvaychenko caused a bigger
stir on the eve of the Court hearing April 16 by announcing
at a press conference that the SBU had evidence that an
elderly, unemployed close relative of Stanik, identified in
the press as her mother, had received ownership of 12 million
dollars worth of property in Kyiv, Lviv, and Yalta, including
real estate and cars.


8. (SBU) The Prosecutor General's office claimed in reply
April 17 that there was no basis for the accusation against
Stanik. Speaker Moroz and Lukash condemned Nalyvaychenko's
press conference as supposed proof that the Presidential
Secretariat was pressuring judges. Yanukovych was quoted at

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a meeting at the Council of Europe in Strasbourg April 17
that the law-enforcement system in Ukraine was broken when
the SBU and PGO openly dispute whether evidence existed.
Stanik strongly denied the accusations in her opening
comments, stating: "if Nalyvaychenko is so sure I received
something, I will share it with him."


9. (C) A second debate arose April 17 over whether the
decision to name Stanik as the reporting judge followed Court
rules. Shapoval maintained that Deputy Court Chairman
Pshenychniy acted improperly April 3 in assigning the case to
Stanik, since Chair Dombrovskiy should have made the
decision. Pshenychniy--who, along with Stanik, was put on
the court by President Kuchma--claimed that he assigned the
case along with two other documents on April 5 when
Dombrovskiy was on Easter vacation. However, embassy staff
have seen the internal court document bearing Pshenychniy's
signature; it is dated April 3, when Dombrovskiy was in
court. (Note: Embassy was shown the document in strict
confidence, so no acknowledgment that the USG has seen this
internal document should be made. End note.)


10. (SBU) Nalyvaychenko also stated at his April 16 press
conference that the SBU, following up on the expressed
concerns of the five judges who had complained of political
pressure against them and the court, had turned up solid
evidence that unnamed people in Lviv had tampered with the
car of a close relative on one of the five judges; he judged
the action to be related to the alleged threats against the
judges, whose public appeal April 10 made clear they were
sympathetic to Yushchenko's position (ref B).

If the Court Rules, Will it be Respected?
--------------


11. (SBU) Both Yushchenko and Yanukovych have said they will
abide by the Court's decision. However, opposition leaders
Tymoshenko, Lutsenko, and Kyrylenko held a joint press
conference late April 17, citing the reports of bribery and
threats, and announced they would not accept a CC ruling that
overturned Yushchenko's decree. In an April 16 interview
with Russian television channel ORT, Yanukovych said that if
the Court agreed that Yushchenko's actions were
unconstitutional, there would be negative implications for
the President, including possibly impeachment. Since
impeachment requires the eventual support of 338 MPs and
there is a gap in implementing legislation, such comments are
more likely designed to put pressure on Yushchenko to suspend
or withdraw the decree or perhaps to be more flexible in
negotiations with the PM.


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