Ukraine's Supreme Court Invalidates Election Runoff Results
The Supreme Court of Ukraine has annulled the outcome of the presidential runoff on 21 November and called for a repeat runoff within three weeks from 5 December. Announcing the ruling in court, the presiding judge said the court had established that there had been widespread election fraud and that the commission had acted unlawfully in ignoring complaints and declaring Viktor Yanukovych president. The court denied the opposition request to declare Viktor Yushchenko outright winner based on the outcome of the first round of election.
Chief presiding justice Anatoly Yarema announced: "Having heard explanations of the persons involved in the case and having studied other evidence, the court believes the complaint is to be partially granted on the following grounds.
Election body acted unlawfully
A runoff presidential election was held on 21 November 2004. The Central Electoral Commission delivered a report on 24 November 2004 about the results of the runoff presidential election and approved resolutions No 1264 on the results of the presidential election of 21 November 2004 and election of the Ukrainian president, and No 1265 on making public the results of the Ukrainian presidential election.
In establishing the results of the runoff presidential election on polling day, the Central Electoral Commission at its collegiate meeting failed to study the reports of territorial election commissions on the results of voting in respective polling districts, failed to verify their authenticity, correctness and fullness or other documents listed in Part 6, Article 83 of the law on Ukrainian presidential elections.
Prior to establishing the outcome of the runoff on polling day, the Central Electoral Commission failed to consider the statements and complaints about the breach of procedure by territorial election commissions in establishing the results of the vote within territorial election districts and the decisions taken by territorial election commissions based on their examination.
By the time of the Central Electoral Commission establishing the outcome of the runoff presidential election, the courts had not finished hearing the complaints submitted in due time about the inaction or action of territorial election commissions in establishing the result of the vote, and the deadline for hearing these complaints had not expired.
Under these circumstances, the actions of the Central Electoral Commission run counter to Articles 2, 10, 11, 12, 16 and 17 of the law on the Central Electoral Commission and Articles 25, 28, 83, 84 and 86, 93, 94 and 96 of the law on Ukraine on presidential elections, and are therefore unlawful.
In this connection, the decisions taken by the Central Electoral Commission are to be revoked.
Election law broken
The court has also established that during the runoff election, the law on presidential elections was violated. Article 34 was violated during compiling and updating voter registers. The same individual was entered on the register several times, as were persons ineligible to vote. Manufacturing, accounting, issuing and using absentee ballots violated Article 33 and was done without due supervision from the Central Electoral Commission.
The election campaign in the media disregarded the principle of equality and contradicted the procedure established by law. The ban on campaigning by executive government bodies and local governments, their officials and staff was disregarded. They interfered illegally with the election process. The requirements of articles 23, 24 and 85 on the composition of election commissions were also violated. The requirements of articles 68, 69 and 70 on the involvement of official observers in the election process were violated. The requirements of Article 77 on voting outside polling booths were violated. Reports by precinct election commissions on the vote count were compiled disregarding the requirements of Article 79. Transporting documents to territorial election commissions took place in violation of Article 81.
The above circumstances lead to the conclusion that the principles of electoral law envisaged by Articles 38, 71 and 103 of the Ukrainian constitution and the principles of the election process defined by Article 11, Part 2 of the law on presidential elections were violated, which makes it impossible to ascertain the true result of voters' choice in the single nationwide constituency.
No legal grounds to declare Yushchenko outright winner
In determining the way to restore the rights which have been violated and the lawful interests of the participants of the electoral process, the court proceeds from the fact that Article 98 of the law on presidential elections says that the court, having established that resolutions based on the respondent's action or inaction run counter to the law on presidential elections, either grants the complaint by cancelling the resolutions in full or in part, rules the action or inaction as unlawful and obliges the respondent to either meet the plaintiff's demands or use another way to restore the rights violated and the legitimate interests of the participant of the electoral process.
The method proposed by the plaintiff to protect rights which have been violated by granting election victory to the candidate who received the greatest number of votes in the poll on 31 October [first round of presidential elections won by Yushchenko] cannot be used because according to Article 84, Part 3 of the law on presidential elections the president elected on polling day is the candidate who received more than half the votes cast on polling day, and none of the candidates received the required number of votes.
Court ruling
Taking into the consideration the impossibility of establishing in a reliable manner the will of voters in the single nationwide constituency by drawing up the results of the election runoff and taking into account that the election runoff held on 21 November 2004 did not change the status of the candidates who, in accordance with the results of the election on 31 October obtained the most votes, the court regards it necessary to restore the rights of the participants of the electoral process by holding a repeat vote in line with the rules accorded by Article 85 of the law of Ukraine on the presidential election.
On the basis of Articles 8, 71, 103 and 124 of the constitution of Ukraine and Article 13 of the Convention on Human Rights and Fundamental Freedoms, Article 89 of the law of Ukraine on the presidential election, Articles 11, 243-10, 243-20 of the Civil Procedures Code of Ukraine, the civil cases bench of the Supreme Court has ruled:
- to partially uphold the complaint submitted by Mykola Dmytrovych Katerynchuk, the election agent of presidential candidate Viktor Andriyovych Yushchenko in the single nationwide seat in the Ukrainian presidential election, on the basis of rulings on actions or inaction on the part of the Central Electoral Commission;
- to recognize the actions of the Central Electoral Commission on establishing the results of the runoff in the presidential election and preparation of the vote-count report on the results of the runoff in the presidential election of 21 November 2004 to be unlawful;
- to annul resolution No 1264 of the Central Electoral Commission of 24 November 2004 on the result of the Ukrainian presidential election on 21 November and the election of the president;
- to annul the resolution of the Central Electoral Commission of 24 November 2004 No 1265 on making public the result of the Ukrainian presidential election;
- to oblige the Central Electoral Commission to appoint a repeat vote in the Ukrainian presidential election within the period established by Part 1 of Article 85 of the law of Ukraine on the presidential election commencing from 5 December 2004 [within three weeks];
- to hold a repeat vote in the Ukrainian presidential election in the manner established by the Article 85 of the law of Ukraine on the presidential election (meaning this is a repeat runoff);
- to reject the remaining demands submitted by the plaintiff.
This ruling is final and is not subject to appeal.
All the signatures of the judges of the civil bench of the court are affixed.
In addition, the bench has made a separate ruling addressed to the parliament, the president of Ukraine and the Prosecutor-General on the violations which were revealed and established in the course of proceedings in this case.
The court hearing is declared to be closed".
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