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08KYIV2034, ELECTION BATTLE SHIFTS TO THE COURTS AND ELECTION

October 15, 2008

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08KYIV2034 2008-10-15 14:35 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXYZ0015
PP RUEHWEB

DE RUEHKV #2034/01 2891435
ZNY CCCCC ZZH
P 151435Z OCT 08
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 6538
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE

C O N F I D E N T I A L KYIV 002034 
 
SIPDIS 
 
E.O. 12958: DECL: 10/15/2018 
TAGS: PGOV PREL UP
SUBJECT: ELECTION BATTLE SHIFTS TO THE COURTS AND ELECTION 
COMMISSION 
 
Classified By: Deputy Chief of Mission James Pettit for reasons 1.4(b,d 
). 
 
SUMMARY 
-------- 
 
1. (C)  On October 10, a Kyiv District Administrative Court 
suspended President Yushchenko's decree dissolving the Rada 
and ordered the Central Election Commission (CEC) to halt 
election preparations.  In response, Yushchenko appealed the 
decision to the Administrative Court of Appeals, fired the 
administrative judge who suspended his decree, and issued a 
decree disbanding the District Administrative Court.  The 
Appeals court is expected to rule on October 17.  MPs from 
Tymoshenko's faction blocked the lobby of the Central 
Election Commission in response to Yushchenko's actions.  To 
add to the political theater, the President dispatched the 
elite Alpha Force to guard the Commission building and 
Appeals Courts.  The CEC is abiding by the initial court 
order and is not actively preparing for elections.  CEC 
contacts say that a December 7 election date now appears 
unlikely.  End Summary 
 
THE COURTS WEIGH IN AND YUSHCHENKO STRIKES BACK 
--------------------------------------------- -- 
 
2. (SBU)  A Kyiv District Administrative Court agreed on 
October 10 to review charges by PM Tymoshenko's BYuT faction 
that the timing of Yushchenko's October 8 decree dissolving 
the Rada was improper.  The Court's action had the effect of 
suspending Yushchenko's order -- and election preparations -- 
for the duration of the review.  The Court did not consider 
the overall constitutionality of the decree itself. 
Yushchenko struck back at the ruling on two fronts.  First, 
he appealed the suspension of his decree to the Kyiv 
Administrative Court of Appeals.  The Court was set to 
convene on October 14, but, citing undue political pressure, 
it postponed the hearing until October 17.  Second, 
Yushchenko fired the judge at the Kyiv District 
Administrative Court who agreed to review BYuT's claim and 
disbanded the Kyiv District Administrative Court itself. 
Analysts note that the dissolution of the court may have been 
unconstitutional since both the Prime Minister and the 
chairman of the High Administrative Court need to sign such a 
decree but have not done so. 
 
THE SBU ARRIVES 
--------------- 
 
3. (U)  Yushchenko dispatched the Presidential Guard Service 
and Security Service of Ukraine (SBU) Alpha troops to protect 
the Kyiv Administrative Court of Appeals and the Central 
Election Commission (CEC).  SBU Acting Chairman Nalyvaichenko 
said that Presidential guard service and SBU troops were 
needed because groups of BYuT MPs threatened and abused 
judges at the Appeals court, were blocking the office of the 
chairman of the High Administrative Court, and were impeding 
the work of the Central Election Commission.  TV cameras 
captured a scuffle outside the CEC on October 14 as BYuT MPs 
tried to bypass SBU troops blocking the entrance.  Both sides 
are crying foul and blaming the other for the scuffle. 
 
CEC:  BUSINESS AS USUAL, BUT DECEMBER 7 ELECTION UNLIKELY 
--------------------------------------------- ------------ 
 
4. (C) CEC Deputy Chairman Andrii Magera told us October 15 
that the scuffle at the CEC did not impede the commission's 
ability to work.  In fact, it took place in the building 
lobby: the commission is on the sixth floor.  Magera 
dismissed the incident as "political theater" staged for the 
television cameras and for public consumption.  A Directorate 
of State Protection guard (the directorate is under the 
presidential secretariat) with a regular duty station at the 
CEC told us that the incident was "not a big deal" and "was 
over by lunch." 
 
5. (C) Magera said that there is little chance that elections 
will be held on December 7.  On the legal front, the 
commission was abiding by the District Administrative Court 
ruling suspending Yushchenko's decree and prohibiting the CEC 
from preparing for elections.  Magera said that a majority of 
the commissioners did not want to risk ignoring a court 
decision, so they would wait for the Appellate court decision 
on October 17.  Magera also stressed that the CEC would have 
needed to start preparations by October 11 "at the latest" to 
prepare sufficiently secure ballots and other procedures to 
ensure a free and fair election on December 7.  If they 
received funding and a green light on October 17, December 14 
is the earliest an election could be held.  He said that the 
CEC would be prepared to carry out an open and transparent 
election, but that Tymoshenko, Yushchenko and other political 
 
leaders needed to form political consensus on a date or the 
election "will stay tied up in the courts." 
 
COMMENT 
------- 
 
6.  (C) The Ukrainian public seems to be taking the incidents 
at the Court and the CEC in stride.  It is, after all, a 
rerun of events preceding the 2007 Rada elections.  A court 
ruling favorable to BYuT would likely only delay the 
elections, as Yushchenko could re-issue his decree in 
accordance with the date set by the court.  Continuing legal 
maneuvering casts doubt that the election will take place on 
December 7. 
 
TAYLOR

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