UKRAINE: POLITICAL COMPROMISE SOUGHT AS COURT

C O N F I D E N T I A L SECTION 01 OF 03 KYIV 000960

SIPDIS

SIPDIS

E.O. 12958: DECL: 04/10/2017
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: POLITICAL COMPROMISE SOUGHT AS COURT
HEARINGS DRAG ON


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


1. (C) Summary. As President Yushchenko and Prime Minister
Yanukovych appeared to inch closer to a political compromise,
proceedings in the Constitutional Court (CC) April 20-23
indicated that the hearings will probably continue right up
to the May 1 holiday. Following a lengthy closed-door April
20 meeting with Yanukovych, Yushchenko told the press that he
was prepared to suspend his April 2 decree disbanding the
Rada, provided that the Rada adopted several key laws and
amended others. However, he did not rule out early elections
taking place at some point in the future. Yanukovych's
comments on April 20 also indicated that he also sought a
compromise, although he was more vague on the terms of a
deal. The two leaders met again early on April 23 and were
set for a second, later meeting; no public details have
emerged. The Court heard final discussion of implied
presidential powers from Yushchenko's representatives April
20 before turning to representatives of the Speaker and the
Rada to make counter arguments, centered on Yushchenko having
overstepped constitutional bounds on his powers and the Rada
coalition having done nothing wrong in accepting individual
MPs into the majority. Competing rallies April 20 on the
Maidan and European Square were peaceful for the most part,
although there was an attempt by coalition supporters to
disrupt the opposition demonstration.


2. (C) Comment. Commentators continue to suggest that the
optimal scenario would involve agreement in political
negotiations before the Court rules. Both Yushchenko and
Yanukovych have been sending hopeful public signals about a
possible deal, but the devil is always in the details.
Although the Court held a session on Saturday April 21 to try
to keep proceedings moving, justices continue thorough
examination of presenters in detailed question and answers.
Once the open session oral arguments conclude, the justices
will commence deliberations behind closed doors. The refusal
of Rada representatives to answer questions from the five
judges who held a press conference on April 10 to decry
pressure on the Court drew a warning from the Court Chairman
and denunciations from several justices that the proceedings
were being politicized. The two sides have been drawing from
two very different approaches to constitutional law, with the
President's representative citing French and German theory
and precedent and the Rada representative drawing on the
Russian experience. End summary and comment.

Yushchenko and Yanukovych Looking for Political Resolution
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3. (SBU) President Yushchenko and PM Yanukovych held
multi-hour, closed door meetings on April 20 and 23 to try to
draw closer to a political deal. Yushchenko told a press
conference late April 20 that the political crisis should be
resolved through compromise and said that he was prepared to
suspend his decree if the compromise struck included: early
parliamentary elections at a future unspecified date; an
imperative mandate-like rule to prevent mass numbers of MPs
from switching factions; revision of the CabMin law and the
Rada election law; a law on the opposition; adoption of the
Universal into legislation; further amendment of the
constitution by a commission and approved by popular
referendum; and reform of law enforcement bodies, especially
the Prosecutor General's Office (PGO). Yushchenko also
voiced support for the resignation of the opposition MPs and
stressed that the CEC, currently facing a sick-out by
coalition-affiliated commissioners, needed to get back to
work.


4. (SBU) Speaking before coalition supporters on the Maidan
later April 20, Yanukovych called on political forces to sign
a peace agreement, saying. "let's do what I and President
Yushchenko agreed on today: next week, within a short time,
resolve all contradictions." Yanukovych added that everybody
awaited the CC decision, which is supposed to clarify
everything. (Note: The press reported that the two Viktors
resumed meeting the morning of April 23, and planned a second
session later in the day, but no details had been released by
COB. End note.)

Presidential Team Concludes Its Case
--------------


5. (SBU) Court justices finished questioning Presidential
representative to the CC Shapoval late on April 20. During
the mid-day break, Shapoval told the press that the CC debate
should not deviate from legal into political issues and
called on participants not to provoke others by asking
political questions. In the afternoon session, he refused to
answer two questions that he deemed political in nature. He
also criticized CabMin representative Lukash and her

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colleagues for making inappropriate predictions--that the
decree would be found unconstitutional--in the media about
the outcome of the hearings. Two other presidential
representatives then made short presentations echoing
Shapoval's arguments, although with far less clarity.

Rada Speaks Next: Yushchenko Overstepped Bounds
-------------- --


6. (SBU) At Reporting Judge Stanik's suggestion, the Court
agreed to hold a special Saturday session April 21 to keep
the process moving. Rada Speaker Moroz's representative,
Socialist MP Yaroslav Mendus, tried to submit a written brief
without an oral presentation, but the judges insisted on
questioning him. Mendus's main argument was that Yushchenko
had exceeded his powers laid out in Article 102, because only
the CC should interpret the extent of his powers. He then
made the political argument that the decree was
unconstitutional because it had led to confrontation within
society, damaged Ukraine's international reputation, and hurt
its economic prospects. According to Embassy staff present
at the hearing, Mendus, who is not a lawyer, appeared unable
to answer all of the questions, and in frustration, became
confused and angry. In addition, he refused to answer
questions from any of the five judges who held the April 10
press conference alleging pressure on the Court, leading
Court Chair Dombrovskiy to warn other participants not to
follow Mendus' example.


7. (C) The Rada's representative to the Court Selivanov
followed with a stronger legal justification against the
constitutionality of the decree in his 90-minute opening
statement, echoing the position that the President had
overreached his powers in applying Article 102 as a reason to
dissolve the Rada. He cited Article 19, which says all
bodies shall act within the framework of the constitution,
and disputed that Yushchenko had carried out the required
consultations with Rada leadership before issuing the April 2
decree. He argued that there was no proof of an unlawful act
by the Rada--MPs decided to join the majority as individuals,
not a collective, and moreover, "majority" and "coalition"
were two distinct entities that people were improperly using
interchangeably. Under questioning, however, he contradicted
himself by admitting that an MP represents the interests of
the political force that sent him to the Rada.


8. (C) Comment: One of the key theoretical debates at the
center of the Court hearings has been whether the
constitution should be implemented strictly based on the
text, as in the Soviet/Russian normative legal tradition in
which most participants were trained, or more broadly and
comprehensively, as is common in western legal practice, both
those descended from the Roman tradition (French and German)
or common law (UK, U.S.). In particular, Shapoval, one of
the country's leading constitutional law experts and a former
court justice (1996-2006) has drawn from French and German
thought in explaining the rationale, a theoretical approach
which appears to have bored or confused a number of the
judges. In contrast, Rada representative Selivanov advocated
the normative approach to law--"strict construction"--more
familiar to those schooled in the Soviet legal system and
drew on Russian precedent April 21, pointedly stating that it
was "more appropriate" for the Ukrainian context than western
examples. End comment.

Accusations of Politicization Exchanged
--------------


9. (SBU) Selivanov answered questions from the judges on the
morning of April 23, although he, like Mendus, refused to
answer the five judges who had protested pressure on the
Court on April 10, saying that they had already made up their
minds. Selivanov's approach elicited more agreement from a
wider range of judges than Shapoval's. Judge Kampo, one of
the five judges who had complained of pressure on April 10,
made a statement just before lunch on April 23 that the
hearing had become too political, proposing a draft decision
on terminating the proceedings entirely. Dombrovskiy said
that this document would be discussed at the CC's closed
deliberation session that will commence once open plenary
sessions end.

Opposition Rallies Supporters; Provocation Attempted
-------------- --------------


10. (SBU) The coalition and opposition held dueling rallies
on the Maidan and nearby European Square late April 20,
flipping the colors from similar March 31 rallies.
Yanukovych spoke before 7500-8000 coalition supporters in the
driving rain, emphasizing that a political compromise was
desirable, before turning the stage over to a series of rap

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and pop performers. The subsequent opposition rally on April
20 drew roughly twice as many to European Square, a mixture
of paid flag wavers and after-work later arrivals.
Tymoshenko spoke for 30 minutes, followed by OU leader
Kyrylenko and People's Self-Defense leader Lutsenko. Main
themes included general criticism of the CabMin's recent
decision to restore all of the generous "retirement"
privileges give to ex-President Kuchma when he left office,
as part of a wider rollback of the gains of the Orange
Revolution. (Note: The Tymoshenko government had canceled
these benefits when it came to power in February 2005).


11. (SBU) Tymoshenko did a better job of engaging the crowd
than during the March 31 rally; her citation of Kuchma's
restored benefits drew heartfelt cries of: "shame, shame"
from the crowd. She expressed doubts that the CC could issue
an objective ruling because nine judges had political
loyalties to Kuchma and the ruling coalition, suggesting that
the people should be the final arbiter (ie, through new
elections). She also issued a warning to Yushchenko not to
cut a deal that excluded new elections. Lutsenko asked the
crowd to show that they "were behind the President," leading
an extended chant of "Yush-chen-ko," a staple of Orange
Revolution rallies which had been absent for at least the
past year, as disenchantment with Yushchenko grew.


12. (SBU) Towards the end of Tymoshenko's speech, small
groups of youths walking from the direction of the Maidan
tried to create a provocation, carrying rough-quality
stenciled banners which, once unfurled in the crowd on
European Square, read: "Yuliya to power--Yushchenko betrays"
(which rhymes in Ukrainian). Opposition supporters reacted
quickly but calmly, pulling down the banners as they were
unfurled, collecting some in the center of the square and
burning the rest on the edge in an impromptu bonfire
surrounded by smiling police. The provocateurs, who numbered
about 50 and looked to be university age, quickly melted into
the crowd and departed without incident. Police immediately
tightened up checks at chokepoints that had been set up
between the two demonstrations to slow the passage back and
forth, asking people moving freely in both directions to put
away any party-related colors as they headed "across lines."


13. (SBU) Comment: While provocations were widely predicted
in 2004 and on March 31, the attempt to stir up animosity
between Yushchenko and Tymoshenko supporters is the first
organized provocation we have witnessed. One Embassy
observer saw a group of ten youths march with arms full of
the banners; another saw a separate group "liberated" from
their banners as they entered European Square, and a third
watched a pair unfurl their banner in the middle of the
crowd, but meekly surrender the wooden poles when a
middle-aged couple wearing PORA! bandannas silently took it
from their hands and tossed it over a security barrier. We
estimate there were 50 identical banners confiscated in all.


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