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07KYIV871, UKRAINE: CONSTITUTIONAL COURT TAKES UP

April 12, 2007

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Reference ID Created Released Classification Origin
07KYIV871 2007-04-12 07:39 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO2329
PP RUEHDBU
DE RUEHKV #0871/01 1020739
ZNY CCCCC ZZH
P 120739Z APR 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 1923
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE
RUEHLMC/MILLENNIUM CHALLENGE CORP

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 
(specif
ic) 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

Wikileaks

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