The Orange had to turn their backs to the Constitutional Court to face the presidential decree.
Photo: Dmitry Azarov
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The Orange Leave Ukraine's Court Without Options
The Ukrainian Constitutional Court held its first session in Kyiv on Monday to decide on the legality of the presidential decree to dissolve the parliament. Opposition, or the Orange forces, lashed out at the judges, asking the president to withdraw his appointees from the court to stay away from this politicized and "immoral" trial. Kommersant special correspondent Andrey Kolesnikov reports from Kyiv.
Supporters and opponents of the Supreme Rada gathered outside the Constitutional Court early Monday morning. The brightly orange Pora organization, which still stands guard to protect the presidential administration, had sent its best forces to the courthouse.
Yet, no one was going to fight to the bitter end, or until the Constitutional Court pronounced its verdict. The White and Blue were tentatively trying to start a conversation with Pora’s activists who were nonchalantly chanting Ukrainian songs.
“Let’s sing something we both know. Some real thing,” a White and Blue leader suggested to the Orange. “We need a song that would move everyone here – not only you.”
I thought the Orange would say something like “if you want to sing a moving song, go and sing it yourself”. I would say so myself. But the Orange seemed to have got interested in the offer and asked what kind of song that “unification” anthem could be.
“Katysha,” the White and Blue leader replied right away, referring to the popular wartime song. “Katyusha is the one.”
The Orange took some time to deliberate and came up with a compromise decision:
“Katyusha will do – but only in Ukrainian.”
“Why would be make a mess of a good song?!” the White and Blue man reproached the Orange. “No, you can’t take any Russian word from it.” He then waved his hand and went away from his friend in waiting – the two parties were to languish at the court’s gates till the evening.
All 18 judges entered the room of the Constitutional Court at 9.30 am. Once they took their seats and Court President Dombrovsky opened his speech, saying that “the judges are studying the decree of the Ukrainian President on its constitutionality”, Judge Shishkin interrupted him:
“I would like to doubt the legality of the presence of Supreme Rada deputies in this courtroom.”
He explained that the parliament had been dissolved, therefore its representatives cannot be presented in court legally.
Mr. Dombrovsky offered all parties in the trial to present their arguments. Among the speakers on Monday were those representing the president, the government, the election authority and the parliament.
Anatoly Selivanov who spoke on behalf of the parliament said the Rada is working, its powers are outlined in the Constitution, and the chamber cannot halt its activities before the Constitutional Court hands down a decision.
“Article 90 of the Ukrainian Constitution says that powers of the dissolved Rada expire when a newly elected Rada starts working,” noted another Rada deputy, Yaroslav Mendus.
It was clear after the first five minutes of the session that the parties were already considering the case as such rather than speaking on issues of procedure.
Vladimir Shapoval, representing Ukrainian President, was quite blunt in voicing his party’s stance:
“I agree that under Article 90 deputies retain their status until a new Rada starts working,” he said. “But the Supreme Rada does not exist any longer in terms of law, which means its representatives cannot speak in court on its behalf.”
Mr. Shapoval added, though, that he did not mind Mr. Selivanov’s presence in court as he had been confirmed as an official Rada representative in the Constitutional Court long before the trail. Mr. Shapoval went on to show how the president’s office was going to tackle the issue of Article 90 which clearly speaks in favor of the Rada.
In a reaction to his words, all judges started flicking through the pages of the constitution as if they were reading it for the first time. The Court President and Judge Susanna Stanik were the only people who did not open the constitution.
Ms. Stanik’s reluctance is easy to explain. Ukrainian Security Service’s chief Valentin Nalivaichenko had recently accused Ms. Stanik of fraud, saying her family had recently registered some expensive property including land and two apartments in Kyiv worth $12 million. Susanna Stanik denied all wrongdoing in a statement early Monday morning.
Mr. Selivanov from the Supreme Rada had an interesting comment to make:
“The decree of the Ukrainian president cannot be enforced at least because it does not specify which convocation of the parliament is to be disbanded.” Indeed, Viktor Yushchenko did not mention the number of the Rada, thinking it is obvious to everyone.
Some time after the start of the session, the position of the court was more or less clear. Several people, including Judge Shishkin, were inclined to uphold the presidential decree. Mr. Shishkin and four more judges were appointed by President Yushchenko’s quota for the Constitutional Court. But the majority, including Court Vice-President Pshenichny, seemed to be supporting the Rada and Prime Minister Yanukovich. Their questions and replies clearly demonstrated that.
Court President Dombrovsky finally suggested considering the case per se, giving the floor to the person who had been selected to study the case and report it to her colleagues. Susanna Stanik, who looked even paler than before, said regulations of the Constitutional Court provide for a judge’s rejection of office. She read out the article and explained that a judge may step down to clear themselves from any suspicion of impartiality in making a decision.
I thought we were going to lose one of the judges right now.
“Mr. Nalivaichenko summoned a news conference yesterday,” Judge Stanik began. “He presented absolutely false information about some land and apartments… Mr. Nalivaichenko, if you happen to know where I keep all of this, I’ll be happy to share it with you,” Ms. Stanik said looking in TV cameras. “Let’s go halves on that.”
“I’ve been speaking about rejection of office,” she went on. “So that you know – I’m not stepping down in any case.”
She finished reading her speech with Rada deputies applauding at the background. The report, however, did not contain any legal evaluation of the presidential decree.
The judges looked perplexed by this scanty speech. One of them wondered if Susanna Stanik had sent the decree for expert examination at a special agency, which usually done with all documents in cases pending at the Constitutional Court.
“I believe that everyone here is smart enough without that,” she retorted. “No, I haven’t sent it.”
Meanwhile, her colleagues sounded indignant that instead of presenting the legal position of the Constitutional Court, Ms. Stanik merely suggested a schedule for studying the case.
Finally, the court president brought the issue to a vote where 11 judges supported Susanne Stanik’s report.
The first vote was obviously a trial one. Alignment of forces in the Constitutional Court was becoming clear. The Supreme Rada and Viktor Yanukovich need no more than ten votes to win at the Constitutional Court. Earlier estimates said they had no more than eight supporters among the judges. Yesterday’s first vote showed that there are already eleven of them.
At the same time, the Monday session showed that the sentiment of judges can swing in any direction. The case is still far from moving to the verdict even though the president’s opponents in the court clearly outnumber his supporters.
The White and Blue and Pora activists who rallied outside looked exhausted after the session finished. They were standing silently in two lines facing each other. Two Pora guys were the only to diligently wave their yellow flags.
Meanwhile, TV screens in Kyiv’s Independence Square (Maidan Nezalezhnosti in Ukrainian) were showing Prime Minister Viktor Yanukovich speaking live at an PACE session.
“The president’s decree is not a law – it’s a by-law,” Mr. Yanukovich noted with a caution. “But if the Constitutional Court decides to call it legal, we will comply with the president’s decision…”
Mr. Yanukovich was clearly aware of the alignment of forces in the Constitutional Court.
Independence Square was packed with the White and Blue blocking Hreshchatyk Street, hanging on every word of their leader. I heard two people saying with bewilderment “why the prime minister would excuse himself in front of god-knows-who-they-are in Strasbourg”. Those two sounded determined to go to Strasbourg and pitch a tent or two there just to teach the Europeans a lesson.
Soon Ukraine’s prime minister disappeared from the screens to give way to People’s Artist Gryzlov who shouted to the square in a somewhat ultimatum way:
“Everybody dance now!”
The square did not stir.
Later than night, Yulia Timoshenko, leader of the Yulia Timoshenko Bloc, Vyacheslav Kirilenko, leader of Our Ukraine, and Yury Lutsenko, leader of People’s Self-Defense, summoned a news conference at the Unian news agency. Yulia Timoshenko reiterated that power in Ukraine had been usurped, and there was no hope for impartiality for any authority in the country, even the Constitutional Court. The line-up of the court confirmed her in the thought that it had been shaped on the party basis. “Socialists hold two seats, Communists have one, the Party of Regions has three and there are three more people appointed by Ukraine’s ex-President Leonid Kuchma,” she noted.
“In this situation, the court cannot possibly pass any legal decision,” Yulia Timoshenko insisted. “We would like to appeal to Ukrainian President with a demand to recall all judges from his quota so that he does not cover this farce with their participation in this trial.”
At this point, I saw a man stand up from the journalist’s bench. It was Mikhail Brodsky, a personality well-known in Ukraine by his financial and political ambitions and the past which is still to be subject to different comments from prosecutors. He was Orange in Independence Square two and a half years ago, standing next to the people who sat at the conference pretending they did not know him.
“Slava,” the man said, addressing to Mr. Kirilenko, “why are you sitting next to Yulia [Timoshenko] who is leading the country to the abyss?! Yes, Yulia Vladimirovna [Timoshenko] once told me that she would give me a bottle of cognac if she did not manage to buy judges in the Constitutional Court.”
Ms. Timoshenko gave a soft smile.
“She was asking me for money for that,” Mr. Brodsky said.
Ms. Timoshenko’s smile got firmer.
“Put a stop to it, Yulia Vladimirovna, or I’ll stop you for good and tell everything about it,” Mr. Brodsky shrieked. “This will be a very shameful story!.. Yura, why are you sitting next to her!..” he was now appealing to Mr. Lutsenko.
Both Vyacheslav Kirilenko and Yury Lutsenko were still flanking Yulia Timoshenko and seemed to pay no attention to Mikhail Brodsky, which looked way too factitious.
Yury Lutsenko said he did not know what the decision of the Constitutional Court would be. But he is sure it will not be moral.
I got a feeling that participants of this news conference – but surely not Mr. Brodsky – were very close to doing a lot of harm to their own reputations. What if the court will pass a decision in their favor? The judges can hardly afford it now that someone spoke about their morality.
A journalist asked Yulia Timoshenko how she would react if the court decided to rule the presidential decree unconstitutional.
“Adequately,” she responded.
I’m not really sure of that now.
News agencies reported late Monday night that Ukrainian President decided to finish his foreign trip and go back to Kyiv.
Andrey Kolesnikov, Kyiv
All the Article in Russian as of Apr. 18, 2007
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