Supreme Court overrules CEC (12/12/04)

Supreme Court overrules CEC

by Stephen Bandera
Special to the Ukrainian Weekly

KYIV - The Supreme Court of Ukraine on December 3 overturned the Central Election Commission's decision to designate Viktor Yanukovych the winner of the presidential election in Ukraine.

The court ordered a repeat of a run-off vote election between Prime Minister Yanukovych and opposition leader Mr. Yushchenko to be held on December 26.

The decision came after five days of proceedings initiated by the Yushchenko's campaign team on November 29.

The proceedings were broadcast live on television and watched closely by Yushchenko supporters who were in their 12th day of protesting what they considered to be a fraudulent victory for Mr. Yanukovych. The Supreme Court essentially agreed with their claim.

The 21-judge panel emerged after seven hours of deliberation and presiding Justice Anatolii Yarema read the decision that satisfied four of the five points in the complaint filed by Mr. Yushchenko's legal team.

The court denied the Yushchenko team's appeal to name their candidate the winner of the presidential elections.

The highest court of the land did conclude that electoral fraud was systemic in nature - not isolated to a few incidents as suggested by the Yanukovych team.

Mr. Yushchenko's representatives challenged the results of the election in eight of the country's 27 regions.

The results in Donetsk, Luhansk, Zaporizhia, Kharkiv, Dnipropetrovsk and Mykolaiv oblasts, the Autonomous Republic of Crimea and Sevastopol were placed under question. According to the CEC results, Mr. Yanukovych defeated Mr. Yushchenko in these eight regions.

The Supreme Court did not admit into evidence recordings of telephone conversations alleged to have taken place between the head of the CEC, Serhii Kivalov, and members of the Yanukovych campaign team about falsifying the results of the November 21 poll.

Mr. Yushchenko's legal team put forward evidence that the main method of falsification was the manipulation of voter lists, whereby names were added under the pretense of correcting the lists while old names and "dead souls" remained.

Further proof of falsification, according to Mr. Yushchenko's lawyers, was the incredibly high voter turnout in 400 polling stations in the eastern regions of the country, where 100 percent and even 127 percent of eligible voters cast ballots on election day.

In Mr. Yanukovych's native Donetsk Oblast, over a quarter million more Ukrainians supposedly voted on November 21 than did in the first round of presidential elections three weeks earlier.

The complainant's lawyers said that absentee voter certificates were another source of fraud, and that observers recorded instances where the same person voted multiple times; in one instance the same person voted 15 times at one polling station, according to Mr. Yushchenko's lawyers.

Lawyers for Mr. Yanukovych and members of the Central Election Commission also participated in the hearings.

In an obvious attempt to stall the proceedings, the Yanukovych campaign team submitted a motion on the second day of proceedings to call the 35 heads of Territorial Election Commissions (TECs) from Donetsk and Luhansk as witnesses before the court.

The Supreme Court denied the motion. On several occasions during the proceedings, judges asked one of Mr. Yanukovych's lawyers if she was purposefully trying to stall the court's work.

The Yanukovych team also countered with a motion to cancel election results in 10 western and central Ukrainian regions and to dismiss Mr. Yushchenko's chief counsel.

On December 1, members of the CEC began to take the stand. On November 27, more than 300 MPs in Ukraine's 450 seat parliament passed a vote of no-confidence in the CEC.

Three members of the 15-person CEC refused to sign the official results, and two additional members later recalled their signatures.

CEC member Andriy Magera, testified that he refused to sign the protocol on the election results because he was not provided with supporting data that showed the results were valid. He said that numbers were filled in to the official returns before the CEC received all of the results.

Mr. Magera also told the court that he saw fake absentee voter certificates.

On December 2, CEC member Ruslan Kniazevych, who also refused to sign off on the official results, testified that the access codes to the CEC's computer systems were seized the day before the vote by "unknown forces."

Halyna Mandrusov, director of the ProCom firm that was responsible for the computer systems confirmed the fact that data coming into the CEC was manipulated "from the outside."

Mr. Kniazevych, who has worked in the CEC for seven years noted that voter turnout data for Donetsk and Luhansk arrived in the CEC databanks nearly 12 hours after polling stations closed. In all past elections, exact voter turnout numbers had been provided within an hour and a half after polling stations were closed, Mr. Kniazevych told the court.

According to Mr. Kniazevych's testimony, "more than a million ballots were stuffed" after polls closed at 8 p.m. on election day.

He said that the other CEC members "could not have not known" about the falsifications that occurred.

During the five day proceedings, outgoing President Leonid Kuchma expressed his opinions on the case before the court. On November 29, Mr. Kuchma said that the members of the CEC are essentially "accountants" and that the CEC "does not influence the results of the election."

That same day Mr. Kuchma called for both a recount and new elections, according to Ukrainian wire services. He told reporters that Mr. Yanukovych agreed to a recount of votes in the Donetsk and Luhansk oblasts.

The next day, Mr. Kuchma suggested holding repeat elections between the two candidates only in Luhansk and Donetsk.

After the court announced its decision President Kuchma agreed to abide by the ruling.

Speaking to hundreds of thousands of joyous protesters on Kyiv's Independence Square after the Supreme Court ruling, Mr. Yushchenko said "We have proven that civil society exists in Ukraine, that we are a nation who will not let ourselves be called goats."

Mr. Yushchenko was referring to a widely underreported comment made by Mr. Yanukovych in October when the prime minister said that "we won't let those goats (kozly) get in the way of doing our job."

Mr. Yanukovych said that the ruling was made "under tremendous political pressure," and that "there is nothing left to do but run and win the elections."

The Council of Europe and European Union immediately welcomed the court's ruling. The U.S. State Department and Polish President Aleksander Kwasniewski soon followed suit.

A day before the court's decision, Russian President Vladimir Putin mocked the idea of a repeat run-off between Messrs. Yanukovych and Yushchenko when he asked whether there will "have to be a third, a fourth, a 25th round until one of the sides obtains the satisfactory result?"

The comment was made during a brief meeting with President Kuchma at a Moscow airport.

The day after the ruling, the CEC announced that a repeat election will be held on December 26.

That same day the Security Service of Ukraine (SBU) initiated a criminal investigation into the illegal use of access codes to the CEC's computer systems.

| Home Page |