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07KYIV988, UKRAINE: COURT WRAPPING UP OPEN HEARINGS AS

April 25, 2007

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Reference ID Created Released Classification Origin
07KYIV988 2007-04-25 14:47 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO6741
PP RUEHDBU
DE RUEHKV #0988/01 1151447
ZNY CCCCC ZZH
P 251447Z APR 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 2114
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 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 propo
sed 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

Wikileaks

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