ELECTION BATTLE SHIFTS TO THE COURTS AND ELECTION

C O N F I D E N T I A L KYIV 002034

SIPDIS

E.O. 12958: DECL: 10/15/2018
TAGS: PGOV PREL UP
SUBJECT: ELECTION BATTLE SHIFTS TO THE COURTS AND ELECTION
COMMISSION

Classified By: Deputy Chief of Mission James Pettit for reasons 1.4(b,d
).

SUMMARY
--------------


1. (C) On October 10, a Kyiv District Administrative Court
suspended President Yushchenko's decree dissolving the Rada
and ordered the Central Election Commission (CEC) to halt
election preparations. In response, Yushchenko appealed the
decision to the Administrative Court of Appeals, fired the
administrative judge who suspended his decree, and issued a
decree disbanding the District Administrative Court. The
Appeals court is expected to rule on October 17. MPs from
Tymoshenko's faction blocked the lobby of the Central
Election Commission in response to Yushchenko's actions. To
add to the political theater, the President dispatched the
elite Alpha Force to guard the Commission building and
Appeals Courts. The CEC is abiding by the initial court
order and is not actively preparing for elections. CEC
contacts say that a December 7 election date now appears
unlikely. End Summary

THE COURTS WEIGH IN AND YUSHCHENKO STRIKES BACK
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2. (SBU) A Kyiv District Administrative Court agreed on
October 10 to review charges by PM Tymoshenko's BYuT faction
that the timing of Yushchenko's October 8 decree dissolving
the Rada was improper. The Court's action had the effect of
suspending Yushchenko's order -- and election preparations --
for the duration of the review. The Court did not consider
the overall constitutionality of the decree itself.
Yushchenko struck back at the ruling on two fronts. First,
he appealed the suspension of his decree to the Kyiv
Administrative Court of Appeals. The Court was set to
convene on October 14, but, citing undue political pressure,
it postponed the hearing until October 17. Second,
Yushchenko fired the judge at the Kyiv District
Administrative Court who agreed to review BYuT's claim and
disbanded the Kyiv District Administrative Court itself.
Analysts note that the dissolution of the court may have been
unconstitutional since both the Prime Minister and the
chairman of the High Administrative Court need to sign such a
decree but have not done so.

THE SBU ARRIVES
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3. (U) Yushchenko dispatched the Presidential Guard Service
and Security Service of Ukraine (SBU) Alpha troops to protect
the Kyiv Administrative Court of Appeals and the Central
Election Commission (CEC). SBU Acting Chairman Nalyvaichenko
said that Presidential guard service and SBU troops were
needed because groups of BYuT MPs threatened and abused
judges at the Appeals court, were blocking the office of the
chairman of the High Administrative Court, and were impeding
the work of the Central Election Commission. TV cameras
captured a scuffle outside the CEC on October 14 as BYuT MPs
tried to bypass SBU troops blocking the entrance. Both sides
are crying foul and blaming the other for the scuffle.

CEC: BUSINESS AS USUAL, BUT DECEMBER 7 ELECTION UNLIKELY
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4. (C) CEC Deputy Chairman Andrii Magera told us October 15
that the scuffle at the CEC did not impede the commission's
ability to work. In fact, it took place in the building
lobby: the commission is on the sixth floor. Magera
dismissed the incident as "political theater" staged for the
television cameras and for public consumption. A Directorate
of State Protection guard (the directorate is under the
presidential secretariat) with a regular duty station at the
CEC told us that the incident was "not a big deal" and "was
over by lunch."


5. (C) Magera said that there is little chance that elections
will be held on December 7. On the legal front, the
commission was abiding by the District Administrative Court
ruling suspending Yushchenko's decree and prohibiting the CEC
from preparing for elections. Magera said that a majority of
the commissioners did not want to risk ignoring a court
decision, so they would wait for the Appellate court decision
on October 17. Magera also stressed that the CEC would have
needed to start preparations by October 11 "at the latest" to
prepare sufficiently secure ballots and other procedures to
ensure a free and fair election on December 7. If they
received funding and a green light on October 17, December 14
is the earliest an election could be held. He said that the
CEC would be prepared to carry out an open and transparent
election, but that Tymoshenko, Yushchenko and other political

leaders needed to form political consensus on a date or the
election "will stay tied up in the courts."

COMMENT
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6. (C) The Ukrainian public seems to be taking the incidents
at the Court and the CEC in stride. It is, after all, a
rerun of events preceding the 2007 Rada elections. A court
ruling favorable to BYuT would likely only delay the
elections, as Yushchenko could re-issue his decree in
accordance with the date set by the court. Continuing legal
maneuvering casts doubt that the election will take place on
December 7.

TAYLOR