TYMOSHENKO CHALLENGES RESULTS OF ELECTION IN COURT

C O N F I D E N T I A L SECTION 01 OF 03 KYIV 000240

SIPDIS

E.O. 12958: DECL: 02/16/2020
TAGS: PGOV PREL UP
SUBJECT: TYMOSHENKO CHALLENGES RESULTS OF ELECTION IN COURT

REF: KYIV 235

Classified By: Ambassador John F. Tefft for reasons 1.4 (b/d).

Summary
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1. (C) PM Tymoshenko announced February 13 that she would
challenge in court as fraudulent the results of the February
7 second round of the Presidential election. Her chances to
overturn the results are poor. Rather, the court filing,
which Tymoshenko made in person February 16, appears
primarily political: an effort to de-legitimize Yanukovych.
The Central Election Commission (CEC) certified Yanukovych as
winner on February 14. OSCE/ODIHR's observation mission to
Ukraine maintains that Tymoshenko's cases lack evidence. The
Rada voted on February 16 to hold the inauguration on
February 25. The High Administrative court is expected to
rule on the Tymoshenko campaign's allegations of fraud
February 18. Tymoshenko's prospects for appealing a negative
decision are not promising. The head of Yanukovych's
election campaign told the Ambassador he does not expect
Party of Regions to be able to take down the Tymoshenko-led
coalition until after Yanukovych's inauguration, when
Yanukovych will have more leverage. End Summary.

The Braided Lady Refuses to Sing
--------------


2. (C) Although we heard from various sources close to PM
Yuliya Tymoshenko that she would concede the election after
the Central Election Commission (CEC) announced its final
results (reftel),Tymoshenko appeared on television on the
evening of February 13, prior to the CEC's February 14
certification, to announce that she planned to challenge the
February 7 presidential runoff results in court. During her
speech she said that Party of Regions (Regions) candidate
Viktor Yanukovych would "never be the legitimately elected
President of Ukraine." Tymoshenko also claimed that she had
clear proof that Regions had falsified between three to eight
percent of the vote in the Crimean region and that more than
one million votes "may have been falsified using various
techniques" throughout Ukraine. Most troubling was her
declaration that "individual OSCE observers" have expressed
their willingness to appear in court with video footage and
assessments that there was systematic fraud.

Tymoshenko Campaign "Stonewalling" ODIHR
--------------


3. (C) OSCE/ODIHR officials called Tymoshenko's statements
of OSCE's support for her case "unfortunate" and baseless as
far as they know. Ambassador Heidi Tagliavini, head of the
OSCE/ODIHR election monitoring mission, tried three times to
talk to Deputy PM Hrihoriy Nemirya on the phone after
Tymoshenko's statement, but he was "too busy" to take her
calls, ODIHR's senior legal analyst told us. Tymoshenko's
campaign has ignored requests by ODIHR, including a letter
from Ambassador Tagliavini, to see the evidence Tymoshenko
and her legal team have been alluding to in their public
statements. ODIHR officials tell us they have been
completely "stonewalled" by Tymoshenko's team since they
characterized the election on February 8 as fundamentally
meeting international standards.

Legal Argument "Clever" But Insufficient
--------------


4. (C) ODIHR's legal analyst conceded that Tymoshenko's
legal argument is "clever," but added that in his opinion
there is insufficient evidence for her to win her challenge
at the High Administrative Court (HAC). Tymoshenko went in
person to file the case on February 16. Thus far
Tymoshenko's legal team has filed 46 challenges in the Kyiv
Administrative Court of Appeals, citing the CEC's failure to
consider complaints filed by Tymoshenko's "Batkivshchyna"
(Motherland) party that certain District Election Commissions
(DECs) refused to recount votes at some polling stations
where Batkivshchyna allegedly witnessed fraud. According to
ODIHR, the courts ruled in previous cases prior to the
February 7 runoff that the CEC does not have the right "not
to act," and thus these challenges make legal sense because
Tymoshenko's team is not challenging the overall results of
the election but rather the legality of the CEC's failure to
rule on fraud cases prior to its certification of the
election results.


5. (C) Tymoshenko's complaint at the HAC will consolidate
these 46 complaints into one and ask the HAC to rule on the
presence of fraud in these cases in the place of the CEC.
Tymoshenko's team hopes that the HAC will decide to throw out
the results in these cases, but ODIHR officials tell us that

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they do not believe this will work. The HAC has two days
from the filing of the complaint to make a decision, which
would be February 18 (since the complaint was filed on
February 16). The Presidential Election Law renders HAC
decisions "unappealable." Tymoshenko's final step, ODIHR
tells us, would be to make an argument that because voters
were treated differently by certain DECs, constitutional
rights were violated and thus the process of the election is
unconstitutional and should be considered by the
Constitutional Court of Ukraine (CCU). This argument would
be very difficult to make successfully, ODIHR officials add.
Tymoshenko may struggle to get an appeal heard in the
Constitutional Court given CCU Chairman Stryzhak's public
statement on February 15 that there are no legal grounds to
challenge the validity of the election results in any court.

Unlike 2004, Exit Polls, PVT & CEC Results Agree
-------------- ---


6. (SBU) Unlike in 2004, when exit polls indicated that
Viktor Yushchenko had won the second round while the official
results declared Yanukovych the winner, the results of every
published exit poll, local NGO OPORA's parallel vote
tabulation (PVT) and the official certified results from the
CEC all indicate that Yanukovych won. The results of the
various exit polls, the PVT and those certified by the CEC
are as follows:

Democratic Initiatives Foundation (partially funded by NED)
-- Yanukovych 48.7%
-- Tymoshenko 45.5%
-- Against All 5.5%

Inter Television (Two Polls)
SOCIS (Ukrainian Independent Polling Organization)
-- Yanukovych 49.5%
-- Tymoshenko 44.5%
-- Against All 6.0%

Ukrainian Sociology Service (USS) and FOM-Ukraine
-- Yanukovych 49.7%
-- Tymoshenko 44.6%
-- Against All 5.6%

ICTV Poll (Run by British Polling Firm GfK)
-- Yanukovych 49.8%
-- Tymoshenko 45.2%
-- Against All 5.0%

"Shuster Live" Political Talk Show
-- Yanukovych 48.7%
-- Tymoshenko 45.6%
-- Against All 5.7%

"National Exit Poll" ( Run by KIIS, and Razumkov Center)
-- Yanukovych 48.4%
-- Tymoshenko 45.7%
-- Against All 5.7%

OPORA PVT
-- Yanukovych 49.6%
-- Tymoshenko 45.9%
-- Against All 4.5%

Official CEC Certified Results
-- Yanukovych 48.95%
-- Tymoshenko 45.47%
-- Against All 4.36%

The unanimous results of these independent polls further
weaken arguments by Tymoshenko's team that Yanukovych's
campaign used systematic fraud in order to win the runoff
election.

Rada Approves February 25 Inauguration Date
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7. (U) Tymoshenko's public statements and court challenges
did not deter Parliament (Rada) from voting on February 16
to hold Yanukovych's inauguration on February 25. 238 MPs
from Regions (172),Our Ukraine - Peoples Self Defense (15),
Communists (27),Bloc Lytvyn (20),Bloc Yuliya Tymoshenko
(1),and nonaligned (3) approved the date.

Senior Tymoshenko Advisor Pessimistic
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8. (C) Deputy Justice Minister (and a Tymoshenko campaign
legal advisor) Yevhen Kornyichuk told us February 15 that
Tymoshenko's chances to overturn the election result were
next to none. He had just left a Cabinet of Ministers
meeting with her and described her as in the "most depressed

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state" he had ever seen. She had not yet come to grips with
her defeat. Tymoshenko had been silent until February 13, he
said, because she had no "Plan B." Tymoshenko's lawyers were
divided about proceeding with the court cases but she
insisted on going forward fundamentally for political
reasons. She wants to delegitimize Yanukovych's victory and
be able to claim to her base that she was not defeated. She
is, he said, hung up on 2004 analogies -- which do not apply.



9. (C) Korniychuk said that the Supreme Court had made clear
it would not take an appeal. He also highlighted that the
Constitutional Court Chairman had also said he did not see
grounds to hear an appeal if Tymoshenko loses. Korniychuk
recommended that Tymoshenko not be too strident in the event
the court rules against her; there is a chance, he said, that
she will berate the court as a fraud and in Regions' pocket.
He noted that the legal challenges may be fully concluded as
early as February 18. He predicted that, if by some miracle
the court voids the election and there is a third round,
popular outrage would ensure that Tymoshenko would lose - and
by more than in the second round.

Coalition Talks
--------------


10. (C) Ambassador met February 16 with Mykola Azarov, head
of Yanukovych's campaign. Azarov was "as confident as one
can be in Ukraine" that Yanukovych's inauguration would take
place on February 25. He said it was far more difficult for
Regions to form a new coalition than it was to fight
Tymoshenko's fraud allegations. Regions would do everything
it could to form a new coalition and avoid early
parliamentary elections. He predicted that there would be no
new coalition until after the inauguration, when Yanukovych
would be in a stronger position to negotiate. He expects a
new coalition to form within a week of the inauguration.


11. (C) Azarov complained how difficult it was to negotiate
with the amorphous Our Ukraine - People's Self Defense
(OU-PSD) bloc. Yanukovych's condition to coalition partners
was that the coalition remain for two years. If they can't
agree to that, Yanukovych would have to opt for early
parliamentary elections. This would be unfortunate, Azarov
said, since another four months in campaign mode could bring
the economy to full collapse. As for the Prime Minister in a
new coalition, Azarov did not assert, as he had previously,
that it would be he. Rather, he suggested that the
Ambassador "ask Yanukovych," implying that his chances had
slipped.

Comment
--------------


12. (C) If the High Administrative Court rules according to
the election law, it could dispose of the Tymoshenko
campaign's allegations of electoral fraud for good as early
as February 18. There is thus a reasonable chance that
Yanukovych's inauguration will take place on February 25 as
scheduled. Tymoshenko appears intent on hanging on to her
post for as long as she can. Regions, as Azarov noted,
continues to have its work cut out in trying to get OU-PSD to
defect and thus take down the Tymoshenko-led coalition. If
this effort fails, the prospect of divided (Yanukovych vs.
Tymoshenko) government and/or early parliamentary elections
looms.
TEFFT