CAMPAIGNS PREPARED FOR POST-ELECTION COURT BATTLES

C O N F I D E N T I A L KYIV 000064

SIPDIS

E.O. 12958: DECL: 01/31/2019
TAGS: PGOV PREL UP
SUBJECT: CAMPAIGNS PREPARED FOR POST-ELECTION COURT BATTLES

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

SUMMARY
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1. (C) Amendments to Ukraine's presidential election law in
August 2009 granted the Administrative Courts sole
jurisdiction to hear election related cases. However,
confusion over who currently heads the High Administrative
Court means that this court's role as the final arbiter of
election disputes is uncertain. Presidential front-runners
are prepared to turn to the courts to address fraud and the
use of administrative resources. The legal battles could be
drawn out and delay second round voting or the swearing in of
a new president. End Summary.


NEW ELECTION APPEAL PROCESS LAID OUT
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2. (U) Changes made in August 2009 to the law on
Presidential elections laid out a new appeals process for
election related cases. According to the amended law,
election-related appeals are now to be handled exclusively in
the Administrative Court system, rather than in Civil Courts.
The District Administrative Courts (DAC) are designated to
hear cases related to Precinct Election Commission and
District Election Commissions. The Kyiv Administrative Court
of Appeals (KACA) is designated as the primary court to hear
election cases related to the Central Election Commission,
but DAC and KACA rulings can be appealed to the High
Administrative Court (HAC). HAC decisions are final.
Ukraine's Supreme Court could also try to inject itself into
the process, because when the Rada changed the Presidential
Election law, it failed to remove all the references in the
law to the Supreme Court's former role in overseeing
elections. It was a Supreme Court decision in 2004 that led
to the unprecedented repeat of the second round of voting.


LEADERSHIP OF KEY COURT IN DISPUTE
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3. (U) Despite the HAC's key role as the final arbiter of
election related cases, the leadership of the court is in
dispute. The mandate of the court's chairman Oleksandr
Pasenyuk expired on December 22 without the appointment of a
new head. The Constitutional Court in 2007 struck down a law
enabling the National Council of Judges to appoint
Administrative Court judges. A new HAC chairman can not now
be appointed until the Rada passes a new law specifying where
appointment authority rests and the appointment procedure.
The Rada does not return from its winter break until January

19. The Law on the Judiciary states that Deputy Chairman
Mykola Sirosh should serve as Acting Chairman until a new
chair is appointed. Sirosh published a court order on
December 23 appointing himself acting chairman pending the
appointment of Pasenyuk's successor. Pasenyuk, with the
backing of the Council of Administrative court judges and
much Qthe HAC's staff, claims to be the HAC acting head
until he is replaced. The head of the OSCE ODHIR monitoring
effort, Ambassador Heidi Talgliavini, told the Ambassador
that the disarray at the HAC was one of the most potentially
serious threats to the integrity of this election.


4. (U) On January 12 Sirosh published an official
declaration and reported to the Ministry of Interior that the
official stamp of the court, without which court papers are
not considered legal, had been Qt and no rulings bearing
its stamp would be considered legally valid. The following
day, Pasenyuk contradicted Sirosh to the press gathered at
his office, saying that the stamp was not lost, but was
secure in his office safe and filed his own report with the
Interior Ministry claiming that the stamp is still valid.
Local press reports claim that Sirosh is close to PM
Tymoshenko and thQ Pasenyuk is aligned with Yanukovych.


CAMPAIGNS' LEGAL TEAMS READY FOR A FIGHT
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5. (C) Prime Minister Tymoshenko said on January 10 that she
may challenge the election results in the courts. In an
interview on nationwide television channel Kanal 5, she said
that "if we prove that falsifications have taken place we
will go to court." Tymoshenko specifically noted the recent
Central Election Commission (CEC) ruling that allows disabled
voters to vote at home without the need to present medical
certification of their limited mobility. She accused
opposition leader Yanukovych of plans to exploit home voting
to falsify election results in Crimea and the Donetsk region.
Tymoshenko claimed that Yanukovych is preparing for election
falsification effort larger than the manipulations in 2004
that ignited the Orange Revolution. Tymoshenko Bloc MP
Valeriy Pysarenko told us that the PM's campaign has three
legal teams to investigate election violations and prepare
for a long court battle following the vote.


6. (C) Yanukovych's legal team does not plan on initiating
court cases over election violations, and will only turn to
the courts to "defend their victory" according an Amcit legal
advisor to the Yanukovych campaign. She told us that her
legal team is gathering evidence of election violations by PM
Tymoshenko for use, if needed, in possible court cases, but
so far does not see any evidence of a "systematic effort by
any candidates to falsify the election." The Yanukovych
team's intention is that if Tymoshenko asks the courts to
overturn election results based on a small number of
"mistakes" made by Yanukovych campaign workers, that his
campaign will be able to document "ten violations made by the
Tymoshenko team for each one made by his." Regions MP Mykola
Azarov, however, told a press conference on January 13 that
Tymoshenko is using wide-spread administrative resources,
vote buying, and intimidation to try to falsify the election.
He said that Tymoshenko is determined to win by fraud, but
that Yanukovych's campaign would not allow the courts to
overturn the election results.


COURT APPEALS COULD DELAY SECOND ROUND, INAUGURATION
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7. (C) Although the KACA and HAC are the primary venues for
election related disputes, there is still room for other
courts in the appeals process. Candidates can turn to local
and regional civil courts for injunctions to prevent CEC or
other government action while their cases are heard in the
DACs, KACA, or HAC. Ukraine's lack of clear judicial rules
on jurisdiction opens the door to multiple courts issuing
simultaneous contradictory rulings. This scenario could
paralyze the CEC and District Electoral Commissions and
significantly delay the publication of election results or
the swearing in of the new President, according the
Yanukovych's Amcit legal advisor. (Note: DECs have five days
to certify their results, the CEC then has five days to
announce final results, and then the President-elect should
be sworn in within 30 days.) She said that although court
action might delay the process, she did not believe that the
courts would overturn election results.


COMMENT
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8. (C) The leadership confusion at the High Administrative
Court, in particular, will undermine the credibility of its
decisions should the election end up in the courts. This
could also open a legal pathway for challenging the HAC's
decisions. A messy court battle could leave the eventual
winner with a taint of illegitimacy, regardless of whether
the election is ultimately judged free and fair.
TEFFT