UKRAINE: COURT WRAPPING UP OPEN HEARINGS AS

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000988

SIPDIS

SIPDIS

E.O. 12958: DECL: 04/25/2017
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: COURT WRAPPING UP OPEN HEARINGS AS
POLITICAL NEGOTIATIONS EXPAND


KYIV 00000988 001.2 OF 002


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


1. (SBU) Summary. The Constitutional Court moved into the
closed deliberation phase late on April 25, amid rumors that
a judgment was expected by the end of Friday April 27
(although others predict a later decision after the May 1-9
holidays). Court deliberations April 24 had concluded late
in the evening with brief testimony by a representative from
the Central Election Commission (CEC); the CEC considered
President Yushchenko had the constitutional right to dissolve
the Rada, but the CEC could not comply with the May 27 date
for new elections as proposed in the decree for technical
reasons. The concluding open session April 25 allowed
justices to question CabMin rep Nimchenko on issues raised by
a written brief submitted by CabMin rep Lukash. Then the
petitioner and all interested parties gave their closing
arguments. Meanwhile, previous political consultations
between President Yushchenko and PM Yanukovych expanded April
25 into broader working group talks between opposition and
coalition representatives on a political way forward.


2. (C) Comment. A majority of judges appear to favor wrapping
up the proceedings as quickly as possible, with a five day
May Day holiday weekend looming, although other observers
speculate that a decision would come after the long weekend.
Judge Pshenychniy, one of the three Kuchma appointees on the
Court, pointedly commented: "there are ten professional
judges on this Court" who did not necessarily need to have
sat through the open hearings in order to render a decision,
implying that a majority appear ready to rule against
Yushchenko's decree. Judges appointed on Yushchenko's quota
have tried to raise the issue of disrespect of the court by
the repeated refusal of Rada and CabMin representatives to
answer their questions, but their concerns have been
discounted, at least in open session discussions. Whether
their ruling comes before or after the political compromise
remains to be seen. By cutting the number of witnesses
making presentations, the coalition appears to be pushing for
a fast end to the case; a ruling in their favor could boost
their negotiating power in the search for political
compromise. End summary and comment.

CEC Keeps Statement Brief
--------------


3. (SBU) The CEC testimony on the evening of April 24 was
short and focused on the two points of Yushchenko's decree
related to new elections. According to CEC representative
Stavniychuk, the CEC believed the President had the
constitutional right to call preterm elections. However, the
CEC could not organize an election by May 27 because the
campaign should already be underway, there was no financing
and only two parties had registered to participate. Her
personal opinion, which she made clear was not shared by the
entire CEC, was that the current crisis was an internal
parliamentary problem and the conditions for dissolving the
Rada should be spelled out concretely in the constitution.
Stavniychuk also stated that, if there were new elections, a
new election law should be prepared. The transitional
provision of the 2004 constitutional amendments that governed
a full party-list system had expired, she noted; the CEC and
a group of MPs were working on new electoral code that would
return the Rada to some hybrid form of elections. (Note.
Prior to the March 2006 elections, half the Rada was elected
on party lists and half in single-mandate districts. The
recent PACE resolution on Ukraine also highlighted the need
for a move towards more connection between MPs and specific
constituencies of voters. End note.) Stavniychuk also
complained that constant court decisions (from lower courts)
were precluding the CEC from doing its job.

Validity of Decree Questioned
--------------


4. (SBU) In the April 25 Court session, with most of the Rada
and CabMin representatives absent, discussion focused on
Judge Dzhun's question whether or not the decree should be
considered valid based on how it had been promulgated--the
Court can only consider a valid document, so the case would
be thrown out if the document was not valid. Rada rep
Selivanov started off arguing that the decree was not
promulgated properly since the Ministry of Justice had not
registered Yushchenko's April 2 decree, and neither the
Cabinet nor the Rada's papers had published it. However,
after a short break, Selivanov retracted his position and
said the decree is valid, because presidential decrees are
not published in those two publications. CabMin rep
Nimchenko agreed that the Presidential Journal (Presydentskiy
Visnyk),which published the decree--can officially
promulgate presidential decrees.

KYIV 00000988 002.2 OF 002




5. (C) Note: Judge Dzhun, identified as being affiliated with
the Party of Regions, has taken a number of interesting
positions in his questions and comments. He had proposed to
postpone the CEC testimony until April 25, despite clear
efforts by coalition-appointed judges and reps to speed up
the process. Dzhun had earlier publicly supported a
Yushchenko-quota judge's comments that the Rada's
representatives to the Court were showing disrespect to the
Court by refusing to answer questions. End Note.


6. (SBU) Nimchenko continued to refuse to answer questions
from the judges who held the April 10 press conference
alleging pressure on the Court. Judge Lylak was offended and
proposed to go into closed session to discuss the disrespect.
Some of the judges who voted against Lylak's proposal
claimed presenters were not obligated to answer all
questions. Judge Pshenychniy (Kuchma appointee) said that
the Court had 10 professional judges and had not needed to
have the open hearings they had been conducting--the Court
could have reached the same conclusions based on a review of
written positions. His comment appeared to imply that a
majority of judges had already concluded that Yushchenko's
decree was not constitutional. He also reminded the Court
that it had until May 5 to make a decision.

New Roundtable: Coalition and Opposition Meet
--------------


7. (SBU) In the aftermath of a series of meetings between
Yushchenko and Yanukovych, a much wider range of
representatives of the coalition and opposition sat down
together early on April 25 for the first time since the
crisis began to work on a political compromise. Participants
in the closed-door meeting included: OU leader Kyrylenko;
BYuT deputy leader Turchynov; former Rada Speaker Plyushch;
former Finance Minister Pynzenyk (BYuT); Communist leader
Symonenko; deputy Rada Speaker and Communist deputy leader
Martynyuk; Regions faction leader Bohtyreva; DPM/Finance
Minister Azarov; Cabinet Minister Tolstukhov; and Socialist
MP Matvienkov. Details were not forthcoming, although one
unnamed participant told the press they were discussing the
possibility of early Rada elections. After the initial
session ended, Bohtyreva told the press that the group would
reconvene late in the afternoon of April 25, noting that
talks could continue for some time. She also declined to
comment on rumors that she might replace Moroz as Speaker;
she promised an answer on April 26. (Note: Speaker Moroz is
on a two-day trip to Lithuania).


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