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09KYIV816, CONSTITUTIONAL COURT DECLARES OCTOBER 25

May 13, 2009

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Reference ID Created Released Classification Origin
09KYIV816 2009-05-13 18:24 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO3453
PP RUEHDBU
DE RUEHKV #0816/01 1331824
ZNY CCCCC ZZH
P 131824Z MAY 09
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 7797
INFO RUCNCIS/CIS COLLECTIVE
RUEHZG/NATO EU COLLECTIVE

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 
-------- 
 
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 
--------------------------------------------- ----------- 
 
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 
--------------------------------------------- - 
 
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 
 
KYIV 00000816  002 OF 002 
 
 
said, there are "a lot of Sundays" between October 25 and 
January 17. 
 
Comment 
------- 
 
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

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