Text of the Ukrainian Supreme Court Decision

Text of the Supreme Court Decision - December 3, 2004

Translated by: Antony Leovin

Source: Ukrainska Pravda Website - December 6, 2004

Having heard the explanations of the parties to the case and examined other evidences, the Court considers that the claim is to be partially satisfied on the following grounds.

On 21 November 2004 the second voting of the presidential elections was carried out. On 24 November the CEC drew up the protocol on the results of the second voting and adopted resolution 1264 on the results of the presidential elections on 21 November and on electing President of Ukraine and Resolution 1265 on disclosing the results of the presidential elections.

Establishing the outcomes of the second voting on the election day in its collegial sitting, the CEC neither examined the protocols of the territorial election commissions on the outcomes of the elections within the relevant election circuits, nor checked their authenticity, correctness and completeness, nor did it examine other documents listed in Art. 83 part 6 of the President Elections Act.

Before determining the results of the second voting on the election day the CEC had not considered statements and claims on the violations of the order of determining the outcomes of the voting by territorial election commissions within their territorial circuits, and the decisions by the territorial election commissions as for the results of examining those statements and claims.

Neither consideration by courts of claims submitted to them concerning the activities, inactivity and decisions by the territorial election commissions, which had determined the outcomes of the voting within their territorial election circuits, nor the term for considering those claims had expired by the time of the determination of the results of the second voting of the presidential elections by the CEC.

Under such circumstances the actions and the decisions of the CEC are in contradiction with the requirements of Articles 2, 10, 11, 12, 16, 17 of the CEC Act, Art. 25, 28, 83, 84, 76, 93, 94, 96 of the President Elections Act and are illegal. In this connection the decision adopted by the CEC shall be subject to cancellation.

The Court has also established that violations of the President Elections Act of Ukraine were committed in the course of the second voting.

The electoral lists had been compiled and ascertained in contradiction with Art. 34; it had been allowed that some citizens should be entered several times and that persons not enfranchised to vote should be entered in the lists; the production, calculation, delivery and use of the absentee certificates had been carried out in contradiction with the requirements of Art. 33, no due control being exercised by the CEC.

The pre-election campaign on the mass-media had been carried out, without adhering to the principle of equal conditions, and in breach of the legally established order.

The requirements concerning the prohibition for state and municipal organs, their officials and officers to participate in the pre-election campaign had not been adhered to. They have turned out to have illegally intervened in the election process. The requirements of Art. 23, 24, 85 concerning the composition of an election commission had been violated.
The requirements of Art. 68, 69, 70 concerning the participation of official surveyors in the election process had been violated. The violations of the requirements of Art. 77 concerning the outside voting had taken place.

The protocols of the poll commissions concerning the outcomes of the calculation of votes had been drawn up in contravention of Art. 81.

The above circumstances give reasons to conclude that the violations of the principles of the law of elections envisaged in Art. 38, 71, 103 of the Constitution of Ukraine and of the fundamentals of the election process envisaged in Art. 11 part 2 of the President Election Act exclude any possibility to precisely establish the will of the voters of the united election circuit of the State.

In determining the remedy for the violated rights and legitimate interests of the subjects of the lection process the court proceeds from the following; if in accordance with Art. 98 of the President Election Act the subject of claim consideration establishes that a decision, action or inactivity of the respondent are in contravention of the legislation on president elections, it shall satisfy the claim, cancel the decision in whole or in part, recognize the illegality of the action or inactivity, obliges the respondent to satisfy the claimant’s demands or otherwise restore the violated rights or legitimate interests of the subject of the election process.

The remedy proposed by the claimant, which consists in recognizing the contender who got the largest share of votes according to the results of the voting of 31 October 2004, cannot be applied because it is established by the law the candidate who has gained more then the half of all votes shall be considered to be elected on the day of the elections. Neither contender has gained that amount of votes.

Taking into consideration the impossibility of determining the actual will of the voters in the State’s united election circuit through determining the results of the second elections, and taking into consideration that the voting of 21 November has not altered the contenders’ status, the Court considers as necessary to remedy the rights of the subject of the lection process through carrying out a new voting in accordance with the rules established by the President Election Act.

The Court has issued a separate address to the Verkhovna Rada, President and General Procurator on the violations found and ascertained in the course of the trial.

Second Round