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November 24, 2004

Ukraine: What Legal Recourse Is Open To The Opposition?

by Jean-Christophe Peuch

The symbolic oath wasn't enough

One of Ukraine's top magistrates yesterday has advised opposition presidential candidate Viktor Yushchenko to file a legal appeal against the 21 November disputed election results with the Supreme Court. The magistrate said the current political standoff could only be resolved through the judiciary. Analysts say indeed the courts might be the opposition's only recourse for overturning the results.
Prague, 24 November 2004 (RFE/RL) -- Ukraine's opposition presidential contender Viktor Yushchenko yesterday appealed to parliament to pass a nonbinding vote of no-confidence in the country's Central Election Commission (TsVK).

The opposition failed to gather a quorum of lawmakers, and instead Yushchenko's took a symbolic oath of office.

Yushchenko's opponent, government candidate Viktor Yanukovych, and outgoing President Leonid Kuchma condemned the move, saying it was illegal.

The no-confidence vote would have had no constitutional basis, but analysts in Kyiv say it may have had an important political impact. Serhyi Segeda is deputy director of a Kyiv-based independent think tank known as the International Center for Policy Studies (MtsPD).


"With regard to the legitimization of the president's power, such a [no confidence] vote would have had no significance. But it would have given the opposition a tremendous moral boost by showing it had won the support of the country's supreme legislative body. It would also have had a great significance for self-governing bodies [such as regions and municipalities]," Segeda says.

"Kyiv and the Ivano-Frankivsk, Lviv, Volyn, Ternopil, Vynnitsya and Ryvne regions have already disavowed the Central Election Commission and half of them have recognized Yushchenko as president. If such a [symbolic] vote had taken place [in national parliament], that would have triggered a wave throughout Ukraine that, hopefully, would have included [pro-Yanukovych] eastern Ukraine."

As Yushchenko and his supporters now consider their options, one of Ukraine's top magistrates yesterday advised the candidate to seek justice through the judiciary.

In comments made to the private Channel 5 television station, Mykola Shelest -- who heads the High Council of Justice, the body responsible for appointing judges -- said that, in his view, "only the Supreme Court can help settle the current dispute."

Segeda of the MtsPD says the only legal recourse open to the opposition is to lodge legal complaints before regional courts, then turn to the Supreme Court. But he warns that may prove problematic.

"With regard to the [invalidation] of the election results, the only means the opposition has at its disposal to obtain justice is to appeal against returns filed by each individual polling station. Legally, it is impossible to invalidate the overall outcome of the vote and it is equally impossible to invalidate the results in such or such election constituency. It has to be done on a station-to-station basis," Segeda says.

"For the opposition to win this election, it has to prove that the results in such and such polling station of the [eastern] Donetsk or Luhansk regions were falsified. It is difficult to achieve, but it is possible. It is also necessary because this is the only legitimate recourse open to the opposition if it wants to prove that the results of the TsVK are illegitimate and do not reflect reality."

One of the technical problems facing the opposition, Segeda says, would be to provide regional courts documentary evidence of fraud.

This might be difficult. In Ukraine's predominantly Russian-speaking eastern regions, where Yanukovych garnered the most votes, opposition election observers were barred from polling stations or dismissed from local election commissions before the vote took place.

In addition, to appeal against results coming from the east of the country -- given that there are thousands of polling stations there -- Segeda says the opposition would need an "army of competent lawyers," which it may not have.

Finally, decisions reached by regional courts have the force of law only after a certain number of days, during which they can be overruled through appeals.

In the meantime, the CEC late Wednesday declared Yanukovych the winner of the
presidential election with 49.46 percent of the votes, against Yushchenko?s
46.61 percent.

Zoya Kazanzhy, the TsVK spokeswoman, had warned earlier these figures would have only a "preliminary character," since the constitution allows for 15 days to finalize the results.

But Segeda believes the decision to release the final returns well ahead of the legal deadline testifies to the authorities' willingness to speed things up.

"The government must morally compensate for what happened on Tuesday [23 November] when Yushchenko took a symbolic oath of office," Segeda says. He said one way to compensate for this would be to have Yanukovych inaugurated as soon as possible to undercut the momentum of the street protests.

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