ARMENIA'S CONSTITUTIONAL COURT UPHOLDS

C O N F I D E N T I A L SECTION 01 OF 03 YEREVAN 000226

SIPDIS

SIPDIS

DEPARTMENT FOR EUR/CARC, NSC FOR MARIA GERMANO

E.O. 12958: DECL: 03/12/2018
TAGS: PGOV PHUM PREL KJUS KDEM AM
SUBJECT: ARMENIA'S CONSTITUTIONAL COURT UPHOLDS
PRESIDENTIAL ELECTION RESULT

REF: YEREVAN 199

YEREVAN 00000226 001.2 OF 003


Classified By: CDA JOSEPH PENNINGTON. REASON 1.4 (B/D)

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SUMMARY
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1. (SBU) In a March 8 decision, Armenia's Constitutional
Court found that while there were irregularities in the
conduct of the February 19 presidential election, they were
not sufficient to alter the outcome of the vote won by Prime
Minister Serzh Serzh Sargsian. The plaintiffs in the court
case, presidential candidates Levon Ter-Petrossian (LTP) and
Tigran Karapetyan, had cited multiple violations of election
administration as grounds for annulling the certification of
the election result by Armenia's Central Electoral
Commission. Due to the virtual media blackout imposed by
President Kocharian's March 1 emergency decree, it is
difficult to ascertain public opinion on the court decision.
But anecdotal evidence suggests widespread disappointment in
the ruling which, while not unexpected, only serves to
reinforce public skepticism about the independence of
Armenia's judiciary. END SUMMARY.

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BACKGROUND
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2. (SBU) Two presidential candidates -- ex-president Levon
Ter-Petrossian (LTP) and People Party leader Tigran
Karapetian -- appealed to Armenia's Constitutional Court to
annul the February 24 decision by the Central Election
Commission to certify Armenia's February 19 presidential
election result. (NOTE: While the party of third-place
finisher Artur Baghdassarian complained of serious problems
with the election, and reportedly thoroughly documented
abuses, the party chose not to become a plaintiff in the
case. This likely had to do with Baghdassarian unexpectedly
accepting the PM's offer to join a new coalition government
on February 29. END NOTE.) Karapetian's argument was fully
based on the February 20 OSCE/ODIHR preliminary report, and
no further evidence was put forth on his behalf.


3. (SBU) Legal representatives of the candidates, mainly
those representing LTP, contested that widespread violations,
including vote fraud, intimidation and violence, and
adulteration of election protocols were sufficient to alter
the outcome that saw Prime Minister Serzh Sargsian win 52.8
percent of the vote and avoid a second round. Counsel for
the plaintiffs specifically argued that the violations were
made with the assistance of state authorities. Mission staff
with legal backgrounds who attended some or all of the
deliberations observed that the plaintiffs presented strong
evidence to overturn the CEC certification, while respondents
(CEC representatives) appeared unprepared and unpersuasive in
their rebuttals, to the extent that some answers elicited
rolling of the eyes of the court's eight justices present.

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PLAINTIFFS' CASES
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4. (U) The main charges in the plaintiffs' cases follow. To
support their arguments, the plaintiffs submitted appeals,
complaints, protocols on election results, court decisions,
monitoring reports, and audio and video recordings.


A. VOTE FRAUD

- About 80,000 voters' names were included in voter lists
(VL) with the day and month of birth recorded as "00.00."
This, according to representatives of the plaintiffs, was
done intentionally, in order to keep track of those who were
out of the country or dead;

- Thousands of voters were included in the main and
additional VLs and voted multiple times;


B. CAMPAIGN VIOLATIONS

- Voters were prevented from participating in LTP rallies and
forced to participate at PM Sargsian's rallies;

- Campaign fund of PM Sargsian received money from
enterprises in which the state is a shareholder and others
with more than 30 percent held by foreign interests (such as

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ArmRozGazProm). Expenditures from the campaign fund exceed
the limits envisaged by law;

- Before and during the official campaign, President
Kocharian campaigned for PM Sargsian and against LTP;

- PM Sargsian continued to act as PM in violation of Armenian
law during the campaign;

- PM task force provided numerous services to voters on
behalf of the candidate (essentially buying votes through
patronage);

- Media coverage was extremely biased in favor of PM Sargsian
and against LTP and other opposition candidates;


C. VIOLATIONS OF ELECTION ADMINISTRATION

- Appeals and complaints to the CEC and Administrative courts
were formal and closed to the media. The CEC did not
consider over 60 appeals submitted to them, and made its
decision on the results without having examined the appeals.

- Opposition candidates' proxies had submitted appeals to
invalidate the results of 167 Provincial Election Commissions
(PECs); those appeals were ignored or the decisions to refuse
them were conducted without the presence of opposition
proxies.


D. OTHER

- Armenian citizens abroad were disenfranchised, since no
polling was conducted abroad.

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CEC'S RESPONSE
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5. (U) Respondents addressed the plaintiffs' accusations with
the following arguments:

- The Election Code (EC) does not provide for out-of-country
voting, hence there was no violation of law in that regard;

- Activities of individuals and parties prior to the official
campaign period are not regulated by the EC, even if they
bear features of campaigning;

- The complaints related to prevention of voters from
participating at LTP rallies were readdressed to the
Prosecutor's office, since the CEC is not an investigatory
body;

- The PM's fulfillment of his duties (through the task force)
required by his post should not be considered as rendering
services to voters.

- As for the DOB "00.00," when the GOAM issued passports to
citizens based on birth certificates where only the year of
birth was indicated, it was decided to indicate "00.00" for
the date and month of birth. 73,730 citizens have such DOB
data.

- Allotments of enterprises that had no right to allot money
to a campaign fund are already transferred to the state
budget.

- 135 PECs were recounted, 62 of them based on appeals by
LTP's proxies, 11 based on appeals of Tigran Karapetyan.
Only one recount showed significant distortion of results,
which resulted in launching a criminal case. 24 PECs were
not recounted due to lack of time. (Note: There was no limit
on the number of hours officials could work during the
recount period, but we know of no instance when officials
extended their working hours in order to complete their
workload. End Note). LTP had 5052 proxies registered and
only 6.3% of those submitted appeals or complaints.

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VERDICT
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6. (SBU) Not unexpectedly (reftel),the court's verdict was
to leave the CEC certification of election results in place.
In its finding, the court stressed that the applicants did
not appeal first to the Administrative Court despite their
lack of confidence in it, and hence failed to exhaust their

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remedies. The OSCE/ODIHR report, stressed in Karapetian's
arguments to the court, was found to lack evidentiary nature.
The court further ruled that the report should be considered
holistically, since it stated that the election was conducted
"mostly in line" with international standards. Of over 500
documents filed by LTP's attorneys, only 94 were found to
have evidentiary value for the case at hand.


7. (SBU) Regarding the requests for such recounts which were
denied as "baseless," no judicial or administrative check has
yet been brought to bear on them. The court found no
qualitative difference in the disparity between PEC and CEC
protocols that would have influenced the final results.
However, the court referred an undisclosed number of election
violations claims that seemed credible to the
Prosecutor-General's office for further investigation.
Transcripts of the case are not available.


8. (U) In responding to claims of media bias, the Court also
found that the National Commission on Television and Radio
was not fulfilling its responsibilities and had adopted a
"formalistic" approach. But this violation was insufficient
to compromise free speech, and the court found that
presidential candidates were able to have their voices reach
voters.

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PUBLIC REACTION: SKEPTICISM OF JUDICIAL INDEPENDENCE
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9. (C) It is difficult to determine genuine public reaction
to the verdict, given the stringent media restrictions
imposed by the March 1 state of emergency slated to expire
March 20. Anecdotal evidence suggests, however, that average
citizens in the street did not expect a different result. A
number of local merchants whom Poloff spoke with after the
verdict on March 9 dismissed the ruling out of hand, alleging
it had been cooked in advance. A political observer also
told Poloff on March 11 that unfortunately "this is how
things work" in Armenia. Other acquaintances expressed
incredulity that the Embassy could even fathom an alternative
outcome.


10. (C) A member of the ODIHR Election Observation Mission
who attended the hearings observed to PolChief that the
demeanor of the Constitutional Court judges appeared to
change over the course of the four-day hearings. While at
the outset they appeared active and engaged, and asked
probing, thoughtful questions, by Friday and Saturday (when
summations were given and the ruling issued),interactions
had become perfunctory and subdued. Body language was
transformed. The observer's perception, and that of the
observer's staff, was that someone had "gotten to" the
justices prior to the deliberations. This seems consistent
with the account provided by one of the Constitutional Court
justices (reftel) that President Kocharian had been
pressuring the justices to ratify the CEC results.

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COMMENT
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11. (C) While unsurprising, the decision of the
Constitutional Court provides an official -- though tainted
-- imprimatur to the disputed election result. It certainly
will not change those voters' minds who believe the vote was
stolen, or reassure Armenian citizens about the independence
of even their highest court. But it does constitute, at
least for now, the last legal recourse which was available to
LTP to contest the result. As long as the state of emergency
remains in effect, the post-election crackdown on LTP
supporters continues, and preparations for a transfer of
power on April 9 take place, it remains to be seen what cards
LTP can play. END COMMENT.
PENNINGTON