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07KYIV922, UKRAINE: CONSTITUTIONAL COURT BEGINS HEARINGS ON

April 17, 2007

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Reference ID Created Released Classification Origin
07KYIV922 2007-04-17 15:52 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO8268
PP RUEHDBU
DE RUEHKV #0922/01 1071552
ZNY CCCCC ZZH
P 171552Z APR 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 2022
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE
RUEHLMC/MILLENNIUM CHALLENGE CORP WASHDC

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000922 
 
SIPDIS 
 
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 
 
KYIV 00000922  001.2 OF 002 
 
 
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. 
 
 
KYIV 00000922  002.2 OF 002 
 
 
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 
 
SIPDIS 
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

Wikileaks

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