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May 25, 2007

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Reference ID Created Released Classification Origin
07KYIV1245 2007-05-25 03:25 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

DE RUEHKV #1245/01 1450325

C O N F I D E N T I A L SECTION 01 OF 05 KYIV 001245 
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KYIV 1244 
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E.O. 12958: DECL: 05/24/2017 
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KYIV 00001245  002.2 OF 005 
reached another agreement, setting the election date for 
September 30.  Yanukovych told Yushchenko that Regions 
officials would sign it and he would get Moroz and Symonenko 
to sign it too.  Yushchenko said that he understood that the 
PM was in a difficult position and under a lot of pressure, 
but that he had the ability to decide and resolve the 
situation.  Nevertheless, in Yushchenko's view, the PM keeps 
backing away.  During the meeting, Yushchenko stated to DAS 
several times that he was committed to resolving the current 
standoff in a democratic manner without resorting to force. 
6. (C) Yushchenko said that he had needed to make decisions; 
one had been to remove Piskun as Prosecutor General--he was a 
politicized advocate for Regions, which controlled the entire 
PGO.  In Yushchenko's view, Piskun had remained engaged in 
politics, in part because he had not yet resigned from his 
Rada seat.  (Note. The constitution says the President can 
only fire the PGO with the Rada's consent, but Yushchenko 
cited a contradictory constitutional article and law in 
defense of his decision.  In a late evening public address, 
the PM refuted Yushchenko's claim, noting that Piskun's 
letter of resignation from the Rada was officially registered 
May 14. End note.)  In addition, the CC was broken--Judge 
Stanik was corrupt, other judges were influenced by Regions 
and Medvedchuk and the Russians.  As President, he had the 
constitutional right to remove judges on his quota, which he 
did.  The CEC was also politicized.  The President told DAS 
Kramer that he had heard the criticism that he was trying to 
usurp power; however, if he had wanted to usurp power, he 
wouldn't do it through elections, but sometimes he had to 
take steps to pressure the other side. 
7. (C) If there is no progress in the next few days, 
Yushchenko said the NSDC would become the only available 
answer in a shrinking set of tools.  He will hold an NSDC 
meeting on May 29, then 171 opposition MPs will resign and 
there won't be a constitutional Rada anymore.  He knew that 
they needed to intensify contact with the PM in order to 
bridge the East-West divide and eventually they had to get to 
a broad coalition.  (Note: This is the first time that 
Yushchenko has openly expressed a preference for a broad 
coalition in any meeting with us.  End Note.)  He had talked 
to Tymoshenko about this, but she and OU leader Kyrylenko 
were now a complicating factor, concerned that political 
intrigue was going on. 
8. (SBU)  On the evening of May 23, Yushchenko gave a brief 
address to the nation, in which he promised elections would 
happen without specifying when, and spent the bulk of his 
time discussing the problems with the Constitutional Court 
and the three judges he fired but who are still working.  He 
said the Court was "paralyzed and demoralized."  He said that 
the Court had not issued a single ruling in the first eight 
months after it was seated and that it could have addressed 
the issues of imperative mandate--when MPs switch 
factions--last fall when the appeal was sent, contributing to 
the current political crisis.  He concluded that the Court 
was losing its constitutional legitimacy and demanded that 
the PGO investigate the CC, that the Supreme Court stop the 
practice of using court rulings for political ends, and that 
all political forces stop pressuring the CC. 
9. (C)  Comment.  On the margins of the meeting with 
Yushchenko, Deputy Presidential Secretariat Head Chaliy told 
DAS Kramer that the PM was under pressure to back away from 
compromise from five different sources: the radicals within 
Regions; the Communists and the Socialists; Rada Speaker 
Moroz; PM Chief of Staff Lyovochkin and Minister of Fuels and 
Energy Boyko representing RosUkrEnergo (RUE); and the 
Russians.  Chaliy claimed that the document that the 
Yanukovych team sent to him after the May 23 
Yushchenko-Yanukovych meeting was different from what the 
President and PM had agreed--and therefore, the document had 
not yet been shown to the President. 
Yanukovych Says He Wants A Deal Too 
10. (C) With no reference to his meeting with Yushchenko or 
any hint that they might have reached an agreement, 
Yanukovych laid out his vision for political compromise for 
DAS and Ambassador on May 23.  Two issues remain, he said; 
they need a legal basis for holding pre-term 
elections--without it, the coalition won't participate--and 
the Rada needs to adopt a package of legislation to ensure 
fair and transparent elections.  Only after these laws are 
adopted by the Rada will it be possible to turn to the issue 
of how to conduct pre-term elections.  After that, if enough 
opposition deputies resigned from their factions in the 
Rada--as Tymoshenko and Yushchenko
 have suggested--that would 
KYIV 00001245  003.2 OF 005 
leave the Rada without a quorum.  At that point the President 
would have the legal basis to issue a decree that would call 
pre-term elections based on a constitutional provision (the 
Rada must have at least 300 deputies); the PM indicated 
specifically that he would find this to be acceptable. The 
coalition could then make clear to their voters that they had 
not made a political deal to hold these elections; the 
constitution required that pre-term elections be held. 
11.  (C) With regard to coalition calls for a constitutional 
amendment as part of the deal--a process that would take 
months--Yanukovych said that this was "an issue for 
discussion and compromise," indicating that it was not a hard 
and fast demand.  Yanukovych suggested that the Rada should 
return to work next week, with the opposition deputies in 
their seats.  (Note. Yushchenko told the press prior to the 
meeting with the PM that opposition deputies were prepared to 
go back to work next week as well.  End note.)  Yanukovych 
stated clearly that the government will not require a 
Constitutional Court decision on the President's decrees to 
resolve the crisis.  The President had made a mistake in 
taking on the CC--and his decisions regarding this court 
could have implications for the judiciary across the board. 
12.  (C) The coalition view, Yanukovych argued, has always 
been that they do not need pre-term elections to resolve the 
political crisis; however, Yushchenko had chosen the more 
radical approach.  Yanukovych noted that the President had 
many "radicals" around him who swung from one extreme to the 
other without ever finding middle ground.  However, he 
repeated several times that he was confident that Ukraine 
would emerge stronger from this crisis.  Yanukovych ended the 
meeting by repeating a statement that he posted on his 
website earlier in this crisis--the President's team has the 
cards right now.  He can play them, but this is the dangerous 
way, outside of the law, that could lead to the division of 
Ukraine and civil war; and Yushchenko would be responsible. 
Tymoshenko Doesn't Trust the PM 
13.  (C) A tense Tymoshenko confirmed late May 23 to DAS and 
Ambassador that the deal on the table was much the one that 
Yanukovych had described, although she was surprised that 
Yanukovych was on board with it.  She said that the election 
would be September 30, but the date would not be announced 
immediately.  Instead, the Rada faction leaders will announce 
it, so that it appears to be a Rada decision, which will 
protect Yanukovych's ratings (since he will not look like he 
conceded or failed.)  She said that BYuT was ready to vote 
for the small package of legislation and to resign from the 
Rada to bring it below quorum, triggering its dissolution. 
14.  (C) Tymoshenko also evinced surprise that Yanukovych had 
said that a CC ruling was not necessary.  She said that she 
and Yushchenko had long been saying that the CC was not the 
proper arbiter of this conflict, but it was the first time 
she had heard of Yanukovych saying this.  She remained 
"guardedly optimistic," she said, cautioning that 
Yanukovych's words and deeds often did not match.  She also 
thought that while Regions would be campaigning, they would 
work in parallel to try to prevent or obstruct the elections, 
possibly through the Constitutional Court or finding a way to 
claim Yushchenko had violated the agreement and then backing 
out of the election.  She also said that the only safeguard 
for the elections is for the President to stand firm and they 
will be pushing him to do so the whole way to the ballot box. 
 The more forceful Yushchenko is, she argued, the more 
compromising Yanukovych becomes. 
15.  (C) Tymoshenko maintained the position that if 
Yanukovych and the coalition backed away from the new deal, 
tough measures should be used.  When asked to define "tough 
measures," she said that the NSDC should take control of the 
process and take the following three steps, adding that this 
should all be done by May 26 if progress did not continue. 
First, it should appoint new members to the CEC who will 
facilitate the election process. Then it should appoint a new 
acting Prosecutor General; if the PGO and CEC were on board 
with elections, the Yanukovych government could keep working 
without problem.  Finally, the NSDC would subordinate all 
armed forces and units in the country to the President so 
that they could not be dragged into the conflict.  (Note. 
Tymoshenko's most trusted deputy, Oleksandr Turchynov, was 
named First Deputy Secretary of the NSDC earlier May 23, 
which would presumably give her the ability to push the NSDC 
in that direction.  End note.) 
Plyushch: Closer, but Need to Save Face 
KYIV 00001245  004.2 OF 005 
16. (C) NSDC Secretary Plyushch, who attended the May 23 
Yushchenko-Yanukovych meeting, told DAS Kramer on May 24 that 
the two Viktors had eventually agreed on a September 30 date 
for elections after Yanukovych had initially tried to avoid 
agreeing on a date, suggesting that they leave it up to 
faction leaders to decide.  After Yanukovych departed Kyiv to 
attend an evening soccer match in Donetsk, followed by a May 
24 CIS PM meeting in Yalta, the process of agreeing on the 
meeting's minutes ran into difficulty.  DPM Azarov had tried 
to include 20 issues as preconditions for Regions' agreeing 
on September 30 elections; Plyushch claimed that nine of the 
issues had not even been discussed at previous working group 
meetings.  There was no guarantee that the process of adding 
new demands and conditions would not continue.  Perhaps the 
biggest hurdle was Regions' demand to amend the Constitution 
before elections.  In practice, that meant waiting at least 
six months, since there needed to be an initial Rada vote on 
changes, a Constitutional Court review, then action by 300 
MPs in the next Rada session.  But there were no longer 300 
MPs participating in the Rada.  Kramer mentioned that 
Yanukovych had indicated to him on May 23 that Constitutional 
amendments were not a mandatory element in the package. 
17. (C) Plyushch felt the process was closer to resolution; 
it was encouraging that both Moroz and Yanukovych indicated 
May 23 that the resignation of 190 BYuT and OU MPs could form 
the basis for the Rada's dissolution.  But there remained an 
issue of saving face for all sides.  One major problem was 
that throughout the 52 days since Yushchenko's first decree, 
Yanukovych consistently had said one thing but did another. 
Yushchenko had said on May 4, after Yanukovych had agreed to 
new elections, that there were no winners or losers in this 
process.  But it was clear that some political forces were 
ready/willing to contest elections, and others not.  The 
President had the ri
ght to call new elections, as well as 
dismiss judges on his quota.  The Ukrainian people had the 
right to vote - or not.  Political parties had the right to 
campaign and propose their vision to the electorate, but not 
to set terms and conditions for an early election date, a 
presidential prerogative. 
Monkey Business at the Constitutional Court, PGO 
--------------------------------------------- --- 
18. (C) The Court continued its work this week, beginning 
with the May 21 announcement from Acting Chairman Pshenychniy 
that the Court had voted to throw out the case on the April 2 
presidential decree and would turn to the April 26 decree. 
Stepan Havrysh, one of Yushchenko's nominees to replace the 
judges Yushchenko fired April 30-May 1, told the press that 
he expected the Court will find the second decree 
unconstitutional.  Also on May 21, one Yushchenko appointee, 
Judge Lylak, submitted his resignation to the President.  He 
has not commented publicly, but Presidential Secretariat Head 
Baloha told the press that Lylak had decided to step down in 
protest of Pshenychniy's takeover of the Court.  A second 
Yushchenko appointee, Judge Shyshkyn, has been "sick" and 
told us that he would not be going to work, also because of 
Pshenychniy's promotion and the general lack of 
professionalism in the Court. 
19. (C) On May 23 Tymoshenko told us that five judges were 
now "ill" and no longer attending sessions.  Pshenychniy said 
on May 24 that only 10 judges had come to the session he 
called.  A group of coalition MPs, along with two busloads of 
police, formed a barrier around the Court on May 24 to keep 
the presidential side from preventing the three fired judges 
from entering the building. 
20. (C) Also on May 24, Plyushch announced that Yushchenko 
had fired Prosecutor General Piskun, whom the President had 
strongly criticized two days ago for not actively 
investigating the CC and the CEC.  After refusing to leave 
his office in the morning, Piskun left and then returned with 
a group of coalition MPs.  After not being allowed back into 
the office, approximately 10 Berkut elite policemen appeared 
and tried to break the door down, according to press reports. 
 Other reports suggested Presidential Secret Service 
personnel had earlier deployed to the PGO building. (Note. 
This is the first time we have seen security personnel coming 
to the aid of one side or the other in the political crisis. 
End note.)  Reportedly at least one security officer was 
slightly wounded in this minor clash. 
21. (C)  Reacting strongly to the events at the PGO, 
Yushchenko called an emergency meeting of the power 
ministers, and then held a televised press conference the 
evening of May 24, condemning the interjection of force into 
the ongoing political situation.  He singled out Interior 
KYIV 00001245  005.2 OF 005 
Minister Tsushko as responsible for the order, calling on the 
PGO to prosecute Tsushko for taking this step.  Yushchenko 
also called on all law enforcement and security agencies, as 
well as soldiers and officers, to refuse any orders to use 
force since this would be illegal.  He said that those who 
gave the orders to use force, as well as those who chose to 
follow those orders, would have committed a crime. 
22. (U) DAS Kramer did not have an opportunity to clear this 
23. (U) Visit Embassy Kyiv's classified website: 




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