CONSTITUTIONAL COURT DECLARES OCTOBER 25

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000816

SIPDIS

E.O. 12958: DECL: 05/13/2019
TAGS: PGOV PREL UP
SUBJECT: CONSTITUTIONAL COURT DECLARES OCTOBER 25
PRESIDENTIAL ELECTION DATE UNCONSTITUTIONAL

REF: KYIV 581

Classified By: Acting DCM Colin Cleary for reasons 1.4(b,d)

Summary
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1. (C) On May 13 the Constitutional Court (CC) declared that
the October 25 presidential election date set by the Rada was
unconstitutional. The court ruling did not set a specific
alternative date for the election -- the Presidential
Secretariat continues to argue for a January 17, 2010
contest. Under the Constitution only the Rada may set a
presidential election date. Rada contacts indicated that
they had not settled on next steps, but that they may make
another attempt to set the election before January. End
Summary.

Constitutional Court Slaps Down October 25 Election Date
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2. (SBU) In a May 13 ruling, the Constitutional Court
announced that the October 25 presidential election date was
unconstitutional. The Rada had set the election date in an
April 1 resolution that garnered 401 votes (out of 450) --
President Yushchenko opposed the Rada resolution and brought
the matter before the court. In announcing the decision, CC
Chairman Andriy Strizhak did not explicitly announce on what
date the election should be held. Rather, the decision
reiterated constitutional articles 104 and 103 that govern
presidential elections, ruling that the president's five-year
term begins when he takes the oath of office, and the
election should be held on the last Sunday of the last month
of the fifth year of the president's term. As a part of the
decision, the court also ruled unconstitutional the Law on
Presidential Elections, which sets the presidential election
date on October 25.


3. (C) Presidential Secretariat representatives contended
that, because Yushchenko was sworn in on January 25, 2005,
the next election date should be January 17, 2010. Legal and
Constitutional Analyst Ihor Kuliushko told us that, while
"sloppily written," the constitution clearly spelled out the
legal basis for a January 2010 election, and any court
decision that would allow the election to proceed in October
would be a political decision. Kuliushko was careful to
distinguish between "early" presidential elections and
regularly scheduled elections, noting that early elections
could be held any time if Yushchenko resigned or was removed
from office.

Door Left Open to Further Political Wrangling
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4. (SBU) Ivan Dombrovskiy, the CC's reporting judge, noted
that the court did not compel the Rada to set a specific
presidential election date. He said that the Rada could
choose a presidential date other than January 17, 2010 based
on a number of different arguments and, so long as its
decision was not again referred to the court, it would stand.
PM Tymoshenko noted that the President "received another
couple months of work" from the court, but that she could not
comment on what date the election would be held because "the
Rada must set the date."


5. (C) Coalition contacts had varied reactions to the ruling,
as the coalition had not yet decided how it would proceed and
was currently pre-occupied with Party of Region's blockade of
the Rada over its demand that Interior Minister Lutsenko be
removed from his position (septel). BYuT MP Oleh Lyashko
told us that a January 2010 election would be "too late." He
said that, while they were still in the initial stages of
formulating a strategy, BYuT would likely push for a Rada
vote to again set an election date prior to January 17, 2010,
possibly in November.


6. (C) BYuT MP Serhiy Mishchenko told us that BYuT would have
to be sensitive to the court's decision in plotting its next
steps as they would not want to be seen as "ignoring" the
decision completely. He speculated that BYuT could decide to
push for a December 27, 2009 election date as a legal
argument could be made that 2009 is the fifth year of the
President's term, and December 27 would be the last Sunday of
the last month of 2009.


7. (C) BYuT MP Valeriy Pysarenko said BYuT would be likely to
just set the date for January 17, as there was little legal
basis for any other date after the court's decision.
Pro-coalition OU-PSD MP Mykola Katerynchuk said that, while
he preferred to just set the date for January 17 and move on,
the Rada would be likely to try another date. Afterall, he

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said, there are "a lot of Sundays" between October 25 and
January 17.

Comment
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8. (C) The court's ruling was not unexpected and represents a
victory for Yushchenko. Most analysts, and many MPs who
voted for the resolution, agreed that the October 25 election
date was based on a dubious legal foundation. The decision
does leave room for further maneuvering in the Rada, however,
by not explicitly ruling what the election date should be.
Tymoshenko believes an earlier election date would be to her
advantage, so we could see another BYuT attempt to schedule
the presidential elections prior to January 2010.


TAYLOR