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26.02.2005

Decision of the Supreme Court of Ukraine on the results of the run-off election of the President

   

DECISION

IN THE NAME OF UKRAINE

3 December 2004  Kyiv

The Court chamber in charge of civil cases of the Supreme Court of Ukraine consisting of

Chairman: A. Yarema
Judges:  M. Baliuk,
  V. Barsukova,
  A. Gnatenko,
  L. Grygoryeva,
  V. Gumeniuk,
  A. Didkivskiy,
  I. Dombrovskiy,
  V. Krivenko,
  N. Liashchenko,
  V. Marynchenko,
  P. Pantalienko,
  M. Patriuk,
  O. Potylchak
  Yu. Prokopchuk,
  M. Pshonka,
  I. Samsin,
  Yu. Senin,
  O. Terletskiy,
  V. Shabunin;
secretaries: I. Prokopenko and V. Skachko;

with participation of M. Katerynchuk, an empowered person of candidate to President’s post V. Yushchenko in the unified all-Ukrainian election circuit, and representatives of candidate to President’s post V. Yushchenko: S. Kustova, R. Zvarych, O. Reznikov, M. Poludionny, S. Vlasenko, Yu. Karmazin and Yu. Kliuchkovskiy;

representatives of the Central Election Commission: V. Bondyk, Yu. Donchenko, I. Kachur, M. Okhendovskiy; representatives of the interested person -- candidate to President’s post V. Yanukovich: O. Lukash, S. Gavrish, B. Kharchenko, E. Evgrafova and Abramenko,

considered at the court sitting the case after the complaint of Mykola Katerynchuk, an empowered person of candidate to President’s post V. Yushchenko in the unified all-Ukrainian election circuit, against the passivity of the Central Election Commission, the actions for establishment of the results of the run-off election of the President of Ukraine of 21 November 2004 and the decision about proclamation of Viktor Yanukovich to be the elected President of Ukraine, and

ascertained: M. Katerynchuk, an empowered person of candidate to President’s post V. Yushchenko in the unified all-Ukrainian election circuit, turned to the Supreme Court of Ukraine with the mentioned complaint, in which he asked: 1. To recognize the actions of the Central Election Commission for establishment of the results of the run-off election of the President of Ukraine of 21 November 2004 as invalid. To nullify Resolution of the Central Election Commission of 24 November 2004 No. 1264 «On the results of election of the President of Ukraine of 21 November 2004 and election of the President of Ukraine» as illegal one. 2. To reverse Resolution of the Central Election Commission of 24 November 2004 No. 1265 «On publication of the results of election of the President of Ukraine» as illegal one. 3. To recognize that the facts of systematic and brutal violations of the principles and foundations of election process during the run-off election of the President of Ukraine of 21 November 2004 made impossible the reliable establishment of the results of expression of the will of voters in the unified all-Ukrainian election circuit. 4. To recognize as invalid the results of the run-off election of the President of Ukraine of 21 November 2004 in the unified all-Ukrainian election circuit. 5. To acknowledge the candidate, who, according to the results of voting of 31 October 2004, got the majority of votes, to be the elected President of Ukraine. The stated demands, which were confirmed at the court sitting by the claimant and representatives of candidate to the post of the President of Ukraine V. Yushchenko, are grounded on references to systematic and brutal violations of the principles and foundations of election process during the run-off election of the President of Ukraine of 21 November 2004 and on the statement that the Central Election Commission transgressed the demands of the Law of Ukraine «On election of the President of Ukraine» during the establishment of the results of the election of the President of Ukraine.

Representatives of the Central Election Commission and representatives of the interested person, protesting against the stated demands, have asserted that the violations of election laws, which were committed in the course the run-off election of the President of Ukraine, did not influence and could not influence the results of the election, and that the Central Election Commission did not transgress the operating laws during the establishment of the results of the election of the President of Ukraine.

Having listened to explanations of the persons, who take part in the case, and studying of other proofs, the court reckons that the complaint must be partially satisfied on the basis of the following reasons.

On 21 November 2004 the run-off election of the President of Ukraine was carried out.

On 24 November 2004 the Central Election Commission worked out the protocol on the results of the run-off election of the President of Ukraine and adopted resolutions No. 1264 «On the results of election of the President of Ukraine of 21 November 2004 and election of the President of Ukraine» and No. 1265 «On publication of the results of election of the President of Ukraine».

Establishing the results of the run-off election, the Central Election Commission, at the sitting of its collegiate composition, did not scrutinize the protocols of territorial election commissions on the results of voting in corresponding election circuits, did not check their authenticity, correctness and completeness, as well as other documents listed in part 6 of Article 83 of the Law «On election of the President of Ukraine».

Before establishment of the results of voting on the day of the run-off election of the President of Ukraine the Central Election Commission did not consider the appeals and complaints on violation by territorial election commissions of the order of summing up of the results of voting in territorial circuits and the decisions taken by territorial election commissions by the results of consideration of the complaint.

At the time of establishment by the Central Election Commission of the results of the run-off election of the President of Ukraine courts had not finished consideration of the complaints, handed in proper time, against passivity, activities and decisions of territorial election commissions during summation of the results of voting in territorial circuits, and the term of consideration of these complaints had not expired.

Under such conditions the actions and decisions of the Central Election Commission contradict the demands of Articles 2, 10, 11, 12, 16 and 17 of the Law of Ukraine «On Central Election Commission», Articles 25, 28, 83, 84, 86, 93, 94 and 96 of the Law of Ukraine «On election of the President of Ukraine» and are illegal. In this connection the decisions approved by the Central Election Commission must be reversed.

The court also ascertained that the following violations of the Law of Ukraine «On the election of the President of Ukraine» were committed during the run-off election:

1.  compilation and specification of the lists of voters were realized with violations of the demands of Article 34; persons, who had no franchise were included into the lists, some voters were included to the lists for several times;

2.  printing, registration, giving out and use of the off-list tickets were carried out with violations of the demands of Article 33, without proper control on the side of the Central Election Commission;

3.  pre-election agitation with the use of mass media was held without observance of the principle of equal opportunities and contrary to the order stipulated by this Law; the demands were not obeyed concerning the prohibition of participation in pre-election agitation of the organs of state power and local self-government, their illegal meddling into the election process was observed;

4.  demands of Articles 23, 24 and 85 on composition of election commissions were broken;

5.  demands of Articles 68, 69 and 70 concerning participation in the election process of official observers were violated;

6.  demands of Article 77 on voting outside the election stations were violated;

7.  protocols of district election commission were compiled after the calculation of votes without following the demands of Article 79;

8.  transportation of documents to territorial election commissions was carried out with violations of Article 81.

The above-listed conditions give grounds for the conclusion about violation of the principles of election right stipulated by Articles 38, 71 and 103 of the Constitution of Ukraine, and the principles of election process envisaged in part 2 of Article 11 of the Law of Ukraine «On election of the President of Ukraine», which excludes the possibility to establish reliably the results of the expression of voters’ will in the unified all-Ukrainian election circuit.

Determining the way of restoration of the abused rights and legal interests of the subjects of election process, the court proceeds from the idea that, according to Article 98 of the Law of Ukraine «On election of the President of Ukraine», the subject of consideration of the complaint, having ascertained that the decisions, activities or passivity of the subject of prosecution do not meet the legislation on election of the President of Ukraine, satisfies the complaint, reverses the decision fully or partly, acknowledges the activities or passivity to be illegal and obliges the subject of prosecution to satisfy the demands of the claimant or to restore the violated rights and legal interests of the claimant in other way.

The way of protection of the abused right by acknowledging the candidate, who, according to the results of voting of 31 October 2004, got the majority of votes, to be the elected President of Ukraine, which way has been offered by the claimant, cannot be applied, since, according to part 3 of Article 84 of the Law of Ukraine «On election of the President of Ukraine», only that candidate is regarded as the elected President, which got more than 50% of votes of the citizens, who took part in the election, and none of the candidates got such quantity of votes.

Taking into account the impossibility to establish reliably the real results of the expression of voters’ will in the unified all-Ukrainian election circuit by way of repeated summation of the results of the run-off election and the fact that the run-off election of 21 November 2004 has not changed the status of the candidates, which, by the results of voting on 31 October 2004, got the greatest number of votes, the courts considers necessary to restore the rights of subjects of the election process by conduction of the repeated voting in accordance with the rules envisaged by Article 85 of the Law of Ukraine «On election of the President of Ukraine».

Following Articles 8, 71, 103 and 124 of the Constitution of Ukraine, Article 13 of the Convention on the protection of human rights and fundamental freedoms, Article 98 of the Law of Ukraine «On election of the President of Ukraine», Articles 11, 24310 and 24320 of the Civil-Procedural Code of Ukraine, the Court chamber in charge of civil cases of the Supreme Court of Ukraine,

resolved:

To satisfy partly the complaint of Mykola Katerynchuk, an empowered person of candidate to President’s post V. Yushchenko in the unified all-Ukrainian election circuit, against the decision, activities and passivity of the Central Election Commission. To acknowledge the activities of the Central Election Commission for establishment of the results of the run-off election of the President of Ukraine and composition of protocol on the results of the run-off election of the President of Ukraine of 21 November 2004 as illegitimate. To reverse Resolution of the Central Election Commission of 24 November 2004 No. 1264 «On the results of election of the President of Ukraine of 21 November 2004 and election of the President of Ukraine». To reverse Resolution of the Central Election Commission of 24 November 2004 No. 1265 «On publication of the results of election of the President of Ukraine». To oblige the Central Election Commission to call the repeated voting on the election of the President of Ukraine within the term envisaged by part 1 of Article 85 of the Law of Ukraine «On election of the President of Ukraine», counting this term from 5 December 2004. To hold the repeated voting according to the order stipulated by Article 85 of the Law of Ukraine «On election of the President of Ukraine». To reject other claimed demands. The decision is final and may not be appealed.

Chairman:   A. Yarema
Judges:  M. Baliuk,
  V. Barsukova,
  A. Gnatenko,
  L. Grygoryeva,
  V. Gumeniuk,
  A. Didkivskiy,
  I. Dombrovskiy,
  V. Krivenko,
  N. Liashchenko,
  V. Marynchenko,
  P. Pantalienko,
  M. Patriuk,
  O. Potylchak
  Yu. Prokopchuk,
  M. Pshonka,
  I. Samsin,
  Yu. Senin,
  O. Terletskiy,
V. Shabunin.

SPECIAL RESOLUTION

3 December 2004  Kyiv

The Court chamber in charge of civil cases of the Supreme Court of Ukraine:

considered at the public court sitting the case after the complaint of Mykola Katerynchuk, an empowered person of candidate to President’s post V. Yushchenko in the unified all-Ukrainian election circuit, against the decision, activities and passivity of the Central Election Commission (the CEC, in what follows), concerning establishment of the results of the run-off election of the President of Ukraine of 21 November 2004, and

ascertained:

According to the Decision of the Supreme Court of Ukraine of 3 December 2004, the complaint of Mykola Katerynchuk, an empowered person of candidate to President’s post V. Yushchenko in the unified all-Ukrainian election circuit, against the decision, activities and passivity of the Central Election Commission, concerning establishment of the results of the run-off election of the President of Ukraine of 21 November 2004, was partly satisfied.

The Court resolved to acknowledge the activities of the CEC for establishment of the results of the run-off election of the President of Ukraine and composition of protocol on the results of the run-off election of the President of Ukraine of 21 November 2004 as illegitimate.

The Court reversed Resolution of the CEC of 24 November 2004 No. 1264 «On the results of election of the President of Ukraine of 21 November 2004 and election of the President of Ukraine».

The Court reversed Resolution of the CEC of 24 November 2004 No. 1265 «On publication of the results of election of the President of Ukraine».

The Court obliged the CEC to call the repeated voting on the election of the President of Ukraine within the term envisaged by part 1 of Article 85 of the Law of Ukraine «On election of the President of Ukraine», counting this term from 5 December 2004, and to held the repeated voting according to the order stipulated by Article 85 of the Law of Ukraine «On election of the President of Ukraine».

The Court refused to satisfy other claimed demands.

The Court ascertained that, in the course of the run-off election of the President of Ukraine numerous violations were committed of basic principles and foundations of election process, stipulated by Articles 38, 69 and 71 of the Constitution of Ukraine, Articles 2, 3, 6, 9 and 11 of the Law of Ukraine «On election of the President of Ukraine», which fact made impossible the reliable establishment of the results of expression of the will of voters in the unified all-Ukrainian election circuit. A significant part of the violations was committed by the CEC, other subjects of the election process and power organs as a consequence of passive behavior of the CEC and its members.

In particular, the questions, which should be considered jointly by the entire composition of the CEC, were, in fact, considered by separate members and were not submitted to the sittings of the CEC. In particular, in that way on 24 November 2004 the question was solved on establishment of the results of the run-off election of the President of Ukraine of 21 November 2004, when, in defiance of the demands of part 1 of Article 84 of the Law of Ukraine «On election of the President of Ukraine», the CEC only voted on approval of the protocol, which was composed without proper verification of the data by all members of the commission and without their familiarization with the protocols of territorial election commissions.

It was ascertained that mass violations of the election rights of all subjects of the election process had been observed, such as: uncontrolled use of the off-list tickets, compulsion of the workers of establishments, enterprises and organizations, including state employees, to vote with the off-list tickets, organized movement of big groups of voters from one regions to others, participation of the organs of state power in this movement and in the use of the off-list tickets. Mass media, official observers and voters informed on such violations in the course of the election. The importance of this problem was confirmed by the amendments to the Law of Ukraine «On election of the President of Ukraine» adopted by the Supreme Council of Ukraine before the run-off election.

However, contrary to the demands of Articles 16 and 17 of the Law of Ukraine «On the Central Election Commission», the CEC, in fact, evaded the fulfillment of the functions connected with the control over the course of the election, guaranteeing of realization of citizens’ election rights, etc.

A brutal violation of laws took place: the CEC did not execute the decision of the Supreme Court of Ukraine of 16 November 2004, which obliged the CEC to establish the results of voting in territorial election circuit No. 100.

All above-said evidences that the Central Election Commission violated the principles of superiority of right, lawfulness, objectivity, competence, professionalism, collegiality of consideration and solving of questions, validity of decision-making, openness and publicity, envisaged by part 2 Article 2 of the Law of Ukraine «On the Central Election Commission».

Besides, in the course of the consideration, the court received a written appeal from the head of the organization, which had developed the software for the CEC and realized its technical maintenance during the voting and calculation of votes. The appeal reads that, by the order of the CEC head, the codes for the access to the system were passed to unauthorized persons, which could cause manipulation with the results and their falsification with following insertion of these data to the initial protocols.

The Court chamber considers necessary to inform the Supreme Council of Ukraine, the President of Ukraine and the General Prosecutor of Ukraine on the disclosed violations of laws for taking the proper measures envisaged by laws.

Grounding on Article 235 of the CPC of Ukraine, the Court chamber

resolved:

To send a copy of this special resolution to the Supreme Council of Ukraine, the President of Ukraine and the General Prosecutor of Ukraine for taking the proper measures envisaged by laws.

The resolution may not be appealed.
Chairman: A. Yarema
Judges:  M. Baliuk,
  V. Barsukova,
  A. Gnatenko,
  L. Grygoryeva,
  V. Gumeniuk,
  A. Didkivskiy,
  I. Dombrovskiy,
  V. Krivenko,
  N. Liashchenko,
  V. Marynchenko,
  P. Pantalienko,
  M. Patriuk,
  O. Potylchak
  Yu. Prokopchuk,
  M. Pshonka,
  I. Samsin,
  Yu. Senin,
  O. Terletskiy,
  V. Shabunin.

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