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07KYIV929, UKRAINE: CONSTITUTIONAL COURT PROCEEDINGS RESUME

April 18, 2007

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Reference ID Created Released Classification Origin
07KYIV929 2007-04-18 14:49 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO9506
PP RUEHDBU
DE RUEHKV #0929/01 1081449
ZNY CCCCC ZZH
P 181449Z APR 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 2036
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE
RHMFISS/HQ USEUCOM VAIHINGEN GE//ECJ5//

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000929 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: DECL: 04/18/2017 
TAGS: PGOV PREL UP
SUBJECT: UKRAINE: CONSTITUTIONAL COURT PROCEEDINGS RESUME 
AMID OPPOSITION PROTESTS 
 
REF: KYIV 922 
 
Classified By: Ambassador for reasons 1.4(a,b,d). 
 
1. (SBU) Summary.  Constitutional Court deliberations of the 
constitutionality of President Yushchenko's April 2 decree 
dismissing the Rada and calling new elections resumed April 
18 after a brief delay caused by opposition efforts to impede 
access to the court.  Opposition leaders Tymoshenko, 
Kyrylenko, and Lutsenko signaled their strategy in a late 
April 17 press conference, expressing doubts about a fair 
outcome and appealing to Yushchenko to dismiss all six judges 
on the Presidential quota.  Early April 18, they sent MPs and 
thousands of protesters to form a human wall to block access 
to the Court in hopes of preventing the hearing, an effort 
which eventually failed, though it led to some unseemly 
shoving between MPs, judges, and government officials.  Once 
a quorum of judges formed, the court resumed deliberations, 
with Regions MPs Yuriy Miroshnychenko concluding his 
presentation on behalf of the coalition, which had begun on 
April 17.  The focus of the day's hearing was the 
presentation of presidential representative to the Court 
Volodymyr Shapoval defending the decree.  Shapoval argued 
that CC precedents from 1997, 2000, and 2003 endorsed 
Presidential powers acting as the guarantor of the 
Constitution; this supported the contention that the 
President could employ implied powers as the guarantor of the 
Constitution to dissolve the Rada.  President Yushchenko and 
Prime Minister Yanukovych once again suggested publicly that 
a political compromise was still possible prior to a court 
ruling.  For his part, Prosecutor General Medvedko announced 
he had opened a criminal case targeting claims spread in the 
media and SBU Chief Nalyvaychenko of bribes to Judge Stanik, 
as well as against opposition MPs for obstructing access to 
the Court, before checking himself into a hospital, 
complaining of heart problems. 
 
2. (C) Comment.  The opposition's street action around the 
Court April 18 takes attention off the April 17 story line of 
alleged bribery and intimidation they had cited as reasons to 
worry about the objectivity of a court ruling (reftel) and 
gives the coalition grounds to claim that the opposition is 
attempting to obstruct the judicial process.  The country's 
leading journalist Yuliya Mostova told an embassy roundtable 
April 18 that if there had still been any doubt as to how the 
Court might rule, BYuT's antics--which forced at least two 
judges to scale a fence to gain access to the 
courthouse--probably removed it.  The physical space around 
the Court is very tight for such large crowds and led to the 
first instances of shoving, albeit between politicians rather 
than protesters; there will be concerns what successive days 
might bring if both sides turn out in larger numbers. 
Regions has vowed to send its entire Rada MP contingent to 
the Court April 19 to ensure access.  End Summary and Comment. 
 
Opposition Claims the Court Lacks Credibility... 
--------------------------------------------- --- 
 
3. (SBU) On the evening of April 17, opposition leaders 
Tymoshenko, Lutsenko, and Kyrylenko gave a joint press 
conference to express concern about the CC's ability to rule 
objectively on Yushchenko's decree given allegations of 
bribery of Reporting Judge Stanik and procedural violations 
in the assigning of the case (reftel).  They charged that the 
Court's tainted reputation might render its ruling 
unacceptable to society.  They issued a request to Yushchenko 
to withdraw the six judges on the presidential quota, so as 
not to allow their presence to "sanctify the political 
circus" at the Court.  (Note: According to the Law on the 
Constitutional Court, the President cannot unilaterally 
withdraw a judge.  Only the Court itself or the Rada has the 
right to remove a judge, depending on the reason as listed in 
Law. End note.) 
 
4. (SBU) Tymoshenko and Lutsenko both argued that the only 
way to resolve the political crisis was to let the people 
decide, to hold elections.  The trio differed, however, over 
whether they would recognize a CC ruling.  Tymoshenko stated 
that she would not.  In contrast, Lutsenko and Kyrylenko were 
more nuanced and did not say that they would not accept a 
ruling; their intent was to warn society about the "possible 
non-objectivity" of the Court.  (Note: Late on April 18, 
Tymoshenko and Our Ukraine (OU) leader Kyrylenko attempted to 
provide additional grounds for the Rada's dismissal by 
announcing BYuT and OU MPs would submit letters of 
resignation to Yushchenko, though we believe such gestures 
are symbolic absent a required Rada vote to accept the 
resignations.  Leading journalist Yuliya Mostova told us that 
BYuT and OU may hold a joint Congress April 19 aimed at 
forming a joint electoral list.  End note.) 
 
KYIV 00000929  002 OF 002 
 
 
 
...Then Tries to Block Court Proceedings 
---------------------------------------- 
 
5. (SBU) Early on April 18, OU, BYuT, and Lutsenko's People's 
Self-Defense movement brought a large crowd of protesters to 
surround the Court and attem
pt to block access.  On previous 
days, an estimated 500-1000 coalition supporters had picketed 
the court; embassy observers, the police, and the media 
estimated over 10,000 demonstrators, mostly representing BYuT 
and OU, stood shoulder to shoulder in the courtyard and 
street in front of the Court.  The opposition demonstrators 
were louder and pushier than previous protesters; the human 
wall succeeded in preventing a quorum of judges for several 
hours and blocked entrance of en Embassy observer for an 
additional hour. 
 
6. (SBU) The most aggressive behavior involved MPs.  Channel 
5 showed video of BYuT MP Volynets attempting to block access 
of controversial Reporting Judge Stanik, who slapped him. 
BYuT and Regions MPs then scuffled by the main entrance until 
police pushed through the crowds and restored order. 
According to other press reports, two other BYuT MPs blocked 
CabMin representative Lukash, prompting her to climb a fence 
to gain access to a back door.  OU's press service claimed 
that four of its MPs had been injured by police action in 
front of the court, but we only observed police taking normal 
measures in escorting judges through the crowd. 
 
7. (SBU) As has been the case with most recent protests, 
nearly all demonstrators for various forces seemed there for 
the money, based on conversations in the crowd.  One 
out-of-town group carrying Socialist flags told an Embassy 
staffer they preferred to see Kyiv's sites and asked for 
directions to the Pechersk Lavra monastery. 
 
Court Resumes: Precedents on Presidential powers 
--------------------------------------------- --- 
 
8. (SBU) The Court finally reached a quorum (12 judges) at 
1130; 16 judges were present by the end of the morning 
session.  Regions MP Miroshnychenko finished presenting the 
coalition MP's appeal of Yushchenko's decree.  The day's 
primary focus was the oral arguments of Yushchenko's Court 
representative Shapoval in defense of the decree.  Since many 
of the justices do not have extensive experience in 
Constitutional law, Shapoval started with a background on 
constitutional law and presidential prerogatives.  He cited 
court precedents from 1997, April 2000, and December 2003 in 
which the Court had upheld the President to be the guarantor 
of the Constitution in ways which defined presidential powers 
more broadly than the specific language authorizing 
presidential action in certain articles.  Shapoval argued 
that the decree to dissolve the Rada for reasons other than 
the three conditions laid out in Article 90 was therefore 
justified by the President's implied powers as the guarantor 
of the Constitution. 
 
Talk of Compromise Continues, amidst PGO accusations 
--------------------------------------------- ------- 
 
9. (SBU) President Yushchenko, in Cardiff, Wales late April 
17 to make a (successful) final pitch for Ukraine and Poland 
to host the 2012 European Football Championships, told 
journalists that he was willing to suspend his decree if 
there were political agreement for the Rada to pass a list of 
legislation enabling early elections to take place in June. 
At the weekly Cabinet meeting on April 18, PM Yanukovych also 
indicated that a political compromise was possible, even 
desirable, before the Court made a ruling on the decree. 
 
10. (SBU) In contrast, Prosecutor General Medvedko muddied 
the waters April 18 before checking himself into the 
hospital, complaining of high blood pressure and heart 
problems.  Medvedko held a press conference to announce that 
he had opened a criminal case targeting the spread of rumors 
in the media and at SBU Chief Nalyvaychenko's press 
conference about alleged bribes of Judge Stanik that the PGO 
had determined were baseless.  He also said they would 
investigate opposition MPs, for attempting to obstruct access 
to the Court.  In Medvedko's absence, the Acting PGO will be 
Viktor Psonka, a former Donetsk prosecutor and father of 
Regions MP Artem Psonka. 
 
11. (U) Visit Embassy Kyiv's classified website: 
www.state.sgov.gov/p/eur/kiev. 
Taylor

Wikileaks

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