Last Tuesday the Supreme Court of Ukraine began to examine the case directly related to the outcome of the notorious presidential election. On Friday, when this ZN issues was already in print, it could possibly pass its ruling. Thus your author once again got a difficult task of forecasting legal and political consequences of a decision that was yet to be made.

Let me give you a brief history of the issue, first. On November 27, the Verkhovna Rada declared by a majority vote a large-scale vote rigging during the presidential runoff on November 21. On December 3, The Supreme Court invalidated the results of the runoff vote and scheduled the repeat runoff for December 26. Five days later parliament approved the package of three laws with an unheard unanimity of 402 votes. A part of this package deal was the law elaborately entitled “On Special Features of application of the Law of Ukraine on Presidential Runoff on December 26, 2004”. It was amended on December 14 and a week later was enforced through publishing in the governmental newspaper The Voice of Ukraine. A day later, the Supreme Court of Ukraine announced that on December 23 it was going to examine this law for compliance with the Constitution based on the petition of 46 MPs.

What is the crux of the matter? The Supreme Court decision as well as numerous complaints said that the most widespread and effective vote rigging techniques were the so-called absentee ballots and home voting. To prevent mass fraud in the repeat runoff, a group of deputies drafted amendments to the presidential election law and parliament approved them on December 8.

I would like to emphasize that it was the matter of amending current law, since those amendments “abolished some of the current rules, changed the others and introduced” new ones into existing document. However, the required legal formalities were not observed and the title of the document said about new application of the old law instead of changes and amendments to it.

The second obvious blunder was an actual disregard of the Supreme Court’s decision that the repeat runoff should strictly follow the procedures outlined in the article on runoff election of the Law on Presidential Election in Ukraine.

Yet none of these mistakes was questioned by those, who were against the law. The opponents lodged a complaint, based on the fact that the electoral law changes significantly restricted the number of the voters who were allowed to vote outside the polling stations. According to the new rules, only the severely disabled voters, who could not move unaided, were allowed to vote at home on December 26. The proponents of this amendment refer to an unjustly high percentage of those who voted at home during the November 21vote. They believed that this fact testified to a large-scale deliberate fraud.

Their opponents insist that this change significantly restricts the rights of several million voters, who are unable to come to polling stations. They also plainly hint that the new law places two presidential candidates in unequal conditions, saying that all the sick and wretched are the potential voters for Viktor Yanukovych, whereas Yushchenko’s supporters have, in fact, deprived them of the right to vote thus giving their candidate significant odds.

The Yanukovych supporters insist that there is a whole list of violations of the civil rights. Thus, people, who wish to vote with the absentee ballots, must fulfill the following conditions:

- specify the number of the territorial constituency they were going to vote at;

- file an application with the territorial constituency, which number is stated on their absentee slip, by 12 o’clock on December 25.

Obviously, the fulfillment of these conditions entails certain difficulties.

The opponents of the election law changes also believe that, first, the new principle of the formation of election commissions was not quite correct. Earlier the commissions were made of the representatives of all the candidates, who took part in the race, whereas now only the representative of Yushchenko and Yanukovych will be on the commissions. Second, the number of the absentee ballots was unjustly reduced. Earlier it made up 4% of the total voter number, whereas now absentee ballots account only for 0.5% of the total number. Third, these election law changes may result in a lack of the ballots. Currently their number is 1% more than the total number of the voters, which does not include the people who voted with the absentee ballots in the previous rounds of the vote.

These and other facts served the ground for 46 MPs to appeal to the Constitutional Court. In their petition they state that,

- the election law changes violate the constitutional rights and liberties of the voters;

- their adoption complicates and in some cases makes it even impossible for the voters to exercise their right;

- the law must be recognized unconstitutional.

The goal of initiators of these changes is obvious. It was prompted by a good intention to minimize the scale of the fraud. However its implementation gives rise to certain questions.

The goal of their opponents is also obvious and far less noble. Most likely Yushchenko’s opponents are trying to hamper the December 26 voting or to question its results. However they have chosen an ideal form for its implementation, such as care for citizens’ rights.

Having appealed to the Constitutional court, the 46 deputies are convinced that the election law amendments have restricted citizen’s rights and liberties and established the inequality of rights. Thus, some categories of citizens were deprived of their right to vote and to express freely their political views.

Is it really so? If it is, then will the Constitution Court’s decision become superior to the previous decision of the Supreme Court?

Translator’s note: The Constitutional Court of Ukraine ruled on Saturday that the election law amendment restricting the so-called home voting to only the severely-disabled people violated voters’ rights and had to be annulled immediately. The Court said that the other electoral changes, which also limited the number of voters who could vote with absentee ballots, did not violate voters’ rights.

The constitutional court said that the other electoral changes passed as part of the early December compromise, which also limited the number of voters who could vote with absentee ballots, did not violate voters' rights.