UKRAINE: COURT CASE MOVING ALONG SLOWLY, KYIV QUIET

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000975 SIPDIS SIPDIS E.O. 12958: DECL: 04/24/2017 TAGS: PGOV PREL PINR UP SUBJECT: UKRAINE: COURT CASE MOVING ALONG SLOWLY, KYIV QUIET KYIV 00000975 001.2 OF 002 Classified By: DCM for reasons 1.4(a,b,d). ¶1. (C) Summary. Major political forces in KYIV were relatively quiet on April 24 with all eyes still on the Constitutional Court where the Cabinet of Ministers representative Nimchenko continued to present the coalition's case. Echoing the presentation of Rada representatives, Nimchenko argued that President Yushchenko should be limited to a specific list of powers spelled out in the constitution and that he should have consulted the Court before issuing a decree dissolving the Rada. The other two CabMin reps, Lukash and Kondyk, announced that they would not participate in the proceedings although Lukash asked to submit a 40-page written brief outlining her arguments; the justices will consider this request at a later time. The Court also made a late-in-the-day decision to continue the hearing as long as needed to get the CEC representative's testimony completed the same day. PM Yanukovych and Our Ukraine MP Ruslan Knyazevych both suggested publicly that the Court may rule by Friday April 27, before the upcoming five-day weekend for the May 1 holiday; some observers suggest that the CC may go into closed door final deliberations as early as April 25. The Central Election Commission (CEC) remained inquorate by an expanding sick-out of five coalition-selected commissioners. Politicians traded rumors and accusations, including that Moroz might lose his Speaker's seat in a political compromise and that the Cabinet was spending down the government's reserve fund in order to not be able to pay for early Rada elections should the CC validate Yushchenko's decree. ¶2. (C) Comment: Although Nimchenko is a former Constitutional Court justice, his semi-offensive jokes and blustery style appeared to grate on some justices. The attempted drop-out by Lukash and Kondyk may be a coalition effort to conclude the Court's hearings as quickly as possible. The law on the CC mandates a ruling by May 5 (30 days after the case began),but as in the mid-2006 failure to form a Rada coalition by the deadline, there are no apparent consequences for failure to meet such time constraints. We understand that the President and PM met again on April 24, but there has been no press coverage of the meeting. End summary. Cabinet Says Presidential Powers Delineated ; -------------- ¶3. (SBU) Cabinet representative to the Constitutional Court Nimchenko--a former CC judge from 1996-2005--began his presentation late on April 23, in which he argued that Article 90 of the constitution provides an exhaustive list of conditions for the President to dissolve the Rada. Without citation of that article, he contended, Yushchenko's decree was unconstitutional. He also argued that since individual MPs had decided to join the coalition, they should be punished individually, but that the Rada as a whole had no collective responsibility. ¶4. (SBU) The Court questioned Nimchenko on April 24; Nimchenko took a position similar to that of Mendus and Selivanov and "abstained" from answering questions from two of the five judges who held the April 10 press conference. In one answer, Nimchenko said that Article 106, which lists the President's duties and powers, was also exhaustive; anything not spelled out there should be considered unconstitutional. Judge Kampo (Yushchenko's quota) accused Nimchenko of using terminology from civil law rather than constitutional law; Judge Stetsyuk (Rada quota) took Nimchenko to task for an inappropriate (note: probably anti-Semitic) joke referring to "Abraham and Sara." ¶5. (SBU) Nimchenko also argued that the will of the voters had not been distorted in the absence of falsification during voting. Judge Shyshkin (Yushchenko's quota) asked Nimchenko whether the CabMin was bound to follow the clause of the decree on financing the elections. Nimchenko claimed no because the law on the state budget, which had no allocation for elections this year, was superior to Constitutional Article 113, which states activities of the CabMin are guided by presidential decrees. Nimchenko engaged in a long debate with Judge Lylak (Yushchenko's quota) regarding what it meant to be the "guarantor" of the constitution, with Nimchenko disputing Judge Lylak citing numerous legal definitions indicating guarantor and protector should be considered synonymous. CabMin Reps try to Drop Out -------------- ¶6. (SBU) In an unexpected move, Nimchenko's two CabMin colleagues, Deputy Minister of the Cabinet of Minister Lukash and Kondyk, asked the Court late on April 24 to terminate KYIV 00000975 002.2 OF 002 their participation in the proceedings, citing "urgent necessity" with no further explanation. At the same time, Lukash submitted a 40-page brief on her position on the case, but did not want to stay to answer questions. (Note: Speaker rep Mendus had tried the same move April 21, only to be forced to submit to oral questioning by justices. End note.) The judges will consider whether Lukash can submit her written brief after the CEC rep makes her presentation, with one judge saying that the two CabMin reps had shown disrespect to the Court. It is unclear how long the proceedings will continue on April 24, but the judges decided to remain until the CEC representative, who began testimony when Nimchenko was done, had finished answering questions. Latest Opposition Rally Draws Small Crowd -------------- ¶7. (SBU) Our Ukraine announced a last-minute rally on European Square on the evening of April 23, which 3,000 people attended. Three OU MPs--Knyazevych, Nataliya Prokopovych, and Olha Herasimyuk--and People's Self-Defense member Taras Steskiv called on supporters to keep coming out in the streets to provide moral support to the President and to keep him strong. Knyazevych said OU supporters would rally again on April 27, the day he believed when the CC would rule. (Note: In a newspaper interview, Yanukovych also indicated that the CC might rule by the end of the week. End note.) Low-key Political Maneuvering on a Quiet Day -------------- ¶8. (SBU) The CEC entered its third week of "sick-outs," with another coalition-related commissioner joining the four previous commissioners still not reporting for work. The CEC said that it had received the requests from OU and BYuT to cancel their 2006 election lists--part of the opposition's plan to drop the Rada below quorum--but the CEC could not consider the matter without its own quorum. ¶9. (SBU) Speaker Moroz has proposed his own "status quo ante" solution to the political standoff: the simultaneous cancellation of the presidential decree and the Rada and CabMin resolutions adopted in response to the decree. He also proposed amending the election law, Rada rules of procedure, the CabMin law, and the Constitution. Moroz's proposal comes at a time when he has been excluded from the negotiations between Yushchenko and Yanukovych; renegade OU MP Holovatiy told the press on April 24 that he had heard that a potential deal between President and PM might involve removing Moroz from the Speaker's seat. ¶10. (SBU) BYuT deputy head Turchynov told the press April 24 that BYuT would not participate in any lame-duck Rada session, even if Yushchenko suspended the decree so the parliament could work on election-related legislation, because BYuT did not recognize the Rada as valid. Only after elections would BYuT come back to work. (Note: BYuT's position differs from what Yushchenko suggested to the press on April 20 -- that the Rada might return to work on election-related legislation as part of a compromise deal.) ¶11. (SBU) According to press reports, NSDC Secretary Haiduk publicly accused the Cabinet of Ministers of spending down the government's reserve funds since the April 2 decree so that, even if the Court ruled that the decree were constitutional, there would not be enough money to fund early elections. Economy Minister Kinakh responded via the press that the spending was all normal government responses to events like natural disasters, but confirmed that there was now less than the 340 million UAH needed to fund new elections. Included in the recent burst of spending was funding for the fortification of the barren Tuzla Island in the Kerch Strait, the subject of an attempted 2003 land grab by Russia, which built a causeway towards Tuzla. (Note: Since the December 2003 agreement between Kuchma and Putin, Tuzla has not elicited much attention, but it remains a symbol of the potential threat Russia could pose to Ukraine's territorial integrity and sovereignty. End note.) ¶12. (U) Visit Embassy Kyiv's classified website: www.state.sgov.gov/p/eur/kiev. Taylor