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07KYIV975, UKRAINE: COURT CASE MOVING ALONG SLOWLY, KYIV QUIET

April 24, 2007

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Reference ID Created Released Classification Origin
07KYIV975 2007-04-24 15:23 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO5372
PP RUEHDBU
DE RUEHKV #0975/01 1141523
ZNY CCCCC ZZH
P 241523Z APR 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 2098
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 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

Wikileaks

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