Eighteen years of impunity

A reader recently came to our editorial office to express indignation at the failure of the authorities and the public to keep the grave of the murdered journalist Georgy Gongadze adequately maintained. She lives not far from St. Nicholas the Miracle-Worker’s Church on the Riverfront, where the journalist was buried in March 2016, and can see the grave’s condition. She says the Ukrainian and Georgian flags there have faded and nobody is going to replace them. “Otherwise, thanks to churchmen, the grave is more or less well-tended, flowers were planted, although was neither a photograph nor a plate for a long time – just as nameless grave with a big stone cross has also been there before,” the Kyivite says. “As far as I know, both the authorities and the journalist’s family are not taking enough care.”

Yet, taking into account the course of the Gongadze-Podolsky case for many years, when we saw and still see inadequate attention, suppression of information, falsifications venality, and unwillingness to finish the investigation of crimes against Gongadze and public activist Oleksii Podolsky, there is nothing extraordinary in this. However, it does not mean we should keep silent.

GEORGY GONGADZE’S GRAVE ON THE TERRITORY OF ST. NICHOLAS THE MIRACLE-WORKER’S CHURCH ON THE RIVERFRONT. KYIV, SEPTEMBER 2018

It will be recalled that the perpetrators of Gongadze’s murder are or were serving prison terms. They are former police officers Mykola Protasov (13 years, died in prison in 2016), Valerii Kostenko and Oleksandr Popovych (12 years each). Their sentences came into force in March 2008. In the case of Podolsky, who was abducted and savagely beaten on June 9, 2000, “uniformed turncoats” were also convicted – in 2007 the Appeals Court of Kyiv sentenced Colonel Mykola Naumets and Major Oleh Maryniak to three years in prison for abuse of power.

Meanwhile, the epic of the main perpetrator (in both cases, Oleksii Pukach, chief of the Interior Ministry’s Outdoor Surveillance Department, commanded the police squads), is still on. Kyiv’s Pecherskyi District Court sentenced Pukach to life imprisonment and the Appeals Court of Kyiv upheld this ruling later. But the parties to the trial did not stop at this and filed cassation appeals.

The High Specialized Court handed down the following ruling at its latest session on May 31, 2017: “Petition the Prosecutor General’s Office again to enter information about blackmail and threats into the National Register of Pretrial Investigations for further inquiry [it became known in August 2017 that the prosecuting office registered this crime at last – Author]; instruct chief justices of the Kyiv’s Pecherskyi District Court and the Appeals Court of Kyiv to declassify the audio and video recordings of the first- and appellate-level court sessions; debar Valentyna Telychenko from further participation in the Pukach case and offer the aggrieved party, Myroslava Gongadze, representation of her interests, if necessary, by a different representative.”

Unfortunately, as years go by, there is no essential progress in this case. Presidents and prosecutors general have been changing, Maidans were held, European organizations passed resolutions long ago with a call to investigate the cases, but the question of crime organizers still remains open in juridical terms. Why is this occurring? Why do we have to raise this question over and over again?

Here are just a few examples of the latest events. The Kuchma-Pinchuk family traditionally holds the annual Yalta European Strategy forum in these days of September (this year on the 13th-15th) on an anniversary of Gongadze’s murder. The very list of participants from Ukraine and abroad makes it easy to conclude why the case is not being investigated. The yes-ukraine.org website says this year’s forum will receive more than 600 leading politicians, diplomats, businesspeople, public activists, and experts from 28 countries.

Among the Ukrainians, it is President Petro Poroshenko, Prime Minister Volodymyr Hroisman, Kyiv Mayor Vitali Klitschko, Foreign Minister Pavlo Klimkin, as well as Yuliia Tymoshenko, Sviatoslav Vakarchuk, Anatolii Hrytsenko, Andrii Kobolev, Svitlana Zalishchuk, Serhii Leshchenko, Mustafa Nayyem, and others. Among the foreigners are Kersti Kaljulaid, President of Estonia; Kurt Volker, special representative of the US State Department for Ukraine negotiations; Alejandro Alvargonzalez, Assistant Secretary General for Political Affairs and Security Policy, NATO; Norbert Roettgen, Chairman of the Bundestag Foreign Affairs Committee; Tony Blair, former Prime Minister of the UK; Anders Fogh Rasmussen, NATO Secretary General in 2009-14; Condoleezza Rice, 66th US Secretary of State (2005-09); Ksenia Sobchak, Russian public activist.

It looks like the Manafort case teaches no lessons. It will be recalled that Rick Gates, a former business partner of the American political consultant Paul Manafort, said in a court that Ukrainian businessman Viktor Pinchuk was one of Manafort’s clients. “Gates revealed that Pinchuk paid Manafort through a company called Plymouth Consultants Ltd. for what he described as a legal project. He did not provide details about how much was paid or when,” The New York Times reports.

Another negative signal in the past few days was the news on Kuchma Ukraine Foundation’s website that Kuchma had received an Order of Saint Andrew the First-Called, 2nd class, the highest award of the Ukrainian Orthodox Church (of Kyiv, not Moscow, Patriarchate). What for? “For merits in reviving spirituality in Ukraine, efforts in establishing the Local Ukrainian Orthodox Church, and on the occasion of his 80th birthday.” Moreover, Leonid Kuchma and Patriarch Filaret discussed the granting of the Tomos of Autocephaly to the Ukrainian Orthodox Church. In short, it is a disgrace!

What do The Day’s experts think of the never-ending Gongadze-Podolsky case?

“NOBODY HAS EVEN BEGUN TO FULFILL THE HIGH COURT’S DECISION TO DECLASSIFY AUDIO RECORDINGS”

Tetiana KOSTINA, Oleksii Podolsky’s lawyer:

“The situation with the high-profile Gongadze-Podolsky case, undoubtedly a crucial and particularly important criminal case in the history of this country, is arousing deep concern and indignation.

“Firstly, nobody has even begun to fulfill the high court’s decision to declassify the audio recordings of Pecherskyi District Court sessions since May last year. The command to so, in a ‘mayhem style,’ must have come from Ukraine’s top leadership. Pecherskyi District Court judges are unlikely to have risked breaking the law so brazenly and cynically without an instruction from above.

“Meanwhile, the Supreme Court has attempted, contrary to the procedure, to replace the reporting judge in this case. This know-how of a reincarnated cassation court will be the object of a serious discussion about the state of justice in the near future – as well as the premeditated, deliberate, and systematic alteration of the procedural law for the only purpose to protect Kuchma and other high-profile individuals from testifying in court even as witnesses.

“As for the criminal case against crime organizers, Prosecutor General Yurii Lutsenko still refuses, absolutely unlawfully, to recognize Oleksii Podolsky as an aggrieved party, which means that he finally and irreversibly flouted all the rules of decency and transgressed law, morality, and international commitments of Ukraine. I am sure the Prosecutor General Office headed by the leader of the ‘Ukraine without Kuchma’ campaign does not recognize Podolsky as an aggrieved party in the organizers case in order not to disturb the luxurious wellbeing of Kuchma and his Family.

“Providing impunity to the organizers, Mr. Lutsenko as Prosecutor General is already planning his future political career and is not even recalling his longtime hypocritical oaths to bring the organizers of crimes against Gongadze and Podolsky to justice.”

“NO RULE-OF-LAW SYSTEM HAS BEEN CREATED IN UKRAINE SO FAR”

Bohdan TSIUPIN, Ukrainian journalist, London:

“In my view, the Gongadze case is still unfinished because no rule-of-law system has been created in Ukraine so far. This is why top officials, influential politicians, and people in the money can easily manipulate legal proceedings. Ukrainian courts can punish perpetrators, small-time criminals, or even men of straw. But as soon as a crime’s trail leads to influential circles, Ukrainian justice founders.

“The entire Ukrainian society is responsible for this state of affairs because the situation will not change if there is no prevailing opinion. Ukraine needs a very broad-based education and mass-scale awareness. Many Ukrainians cannot influence processes in the country due to being poorly educated and passive. For example, an enormous number of people cannot even express their opinion in the official language or adequately form a document.

“In the West, those who keep track of events like this may know about the Gongadze case. Such things cannot remain etched on popular mentality for a long time because Westerners are also concerned first of all about urgent problems in their countries. Do many people in Ukraine know or will they remember for a long time about the recent mafia murder of journalist Caruana Galizia in Malta or any other similar cases?”

“PROSECUTORS RECEIVED NO COMMAND FROM LUTSENKO OR POROSHENKO TO DO ANYTHING ABOUT KUCHMA”

Ihor LUTSENKO, Member of the Ukrainian Parliament:

“The cause of Kuchma’s impunity is that his family is one of Ukraine’s biggest media moguls. They own large enterprises, financial resources, and, accordingly, still exert influence on the foreign and domestic policies of Ukraine. In the past few years Kuchma has also been one of the active Ukrainian negotiators in Minsk, and this role gives him sufficient protection. Kuchma’s son-in-law Pinchuk is also trying, less successfully, to play the role of a link with the US elite. They are allegedly respected for the international clout they have gained for many years. This is why prosecutors received no command from Lutsenko or Poroshenko to do anything about Kuchma even if they know about his role in the crimes.

“Conformism still prevails in Ukrainian society, and some of its members are full of love for money, glory, and influence which the Kuchma family can provide with the help of its resources. Having no personal interest in the Gongadze issue, most politicians think it is better not to quarrel with Pinchuk – it is more beneficial to appear on his TV channels and not to recall the annoying Gongadze story. Besides, most of the institutions that allegedly deal with the freedom of speech, analysis of the Ukrainian media, and protection of journalists’ rights, especially the ones that are closer to international donors, are lobbyist organizations. This is another instrument of influence rather than a way to protect journalists and the freedom of speech.

“In the final analysis, we cannot help but recall such an objective factor as the course of time and personnel turnover in journalism. For example, the new generation on television consists of journalists for whom the Gongadze story is something as archaic as the Pereiaslav Rada or World War Two. They did not witness 18-year-old events, so this story is very far from them. But those who want to be a true journalist must, of course, know the tragic story of Gongadze.”

“KUCHMA LAID THE GROUNDWORK FOR LATER FAILURES AND CRISES”

Otar DOVZHENKO, journalist, media expert:

“I am afraid that only the newspaper Den/The Day and perhaps Detector Media will soon remember that Kuchma was suspected of some misdeeds. Pinchuk has carried out a large-scale and very expensive campaign to whitewash the image of his father-in-law, practically erasing public memory and ‘editing’ history. The main actors in this campaign were Pinchuk-controlled media, but others also forgot eventually what the word ‘Kuchmism’ meant and why ‘Ukraine without Kuchma’ campaign had been launched. The people who were children during the Orange Revolution have already graduated from Universities, but they don’t know what is bad about Kuchma. Use is being made of not only the technique of oblivion, but also the manipulative comparison of the allegedly happy Kuchma times with the stormy or disastrous periods in the subsequent history. But in reality it is Kuchma who laid the groundwork for the following failures and crises by nurturing oligarchs and bringing the ‘Donetsk clan’ and Yanukovych to the foreground. Of course, if Ukraine itself is forgetting who Kuchma was and begins to believe in the image of a wise ‘father of the nation,’ what can be expected from foreign politicians?”

“WE NEVER RECEIVED A PROCEDURAL ANSWER TO THE STATEMENT OF JUDGE CHERNUSHENKO. SO DID THE COURT COME UNDER PRESSURE OR NOT?”

Anna MALIAR, lawyer and criminologist:

“It is extremely difficult from the juridical point of view to assess the course of investigation into the murder of Gongadze owing to some circumstances. In particular, the case was heard at the first- and appellate-instance courts behind closed doors. Some materials of this case were classified. For this reason it is difficult to speak here professionally, and I have to resort to assumptions. We, i.e. society, assume that there were organizers in this case, but we are not a party to the trial and our supposition can have no impact on the course of investigation. It is Myroslava Gongadze, the aggrieved party, who is a participant in the process and has some legal instruments of influencing the trial, but she withdrew her appeal. The withdrawn appeal was about defects of crime classification – the trial court’s ruling did not specify that this crime was a contract murder.

“As is known, Anton Chernushenko, the former head of the Appeals Court of Kyiv, announced publicly that the Presidential Administration had exerted pressure on him, as far as the Gongadze case is concerned. But we never received a procedural answer to these sensational statements. So did the court come under pressure or not? In other words, we have again an assumption, perhaps not an unfounded one, but nobody gave a juridical answer. There were mere statements only.

“Pukach himself said as far back as 2013 at the Pecherskyi District Court that he would agree to the passed sentence if Kuchma and Lytvyn were standing next to him. It is also a resounding and sensational statement, but did Pukach use all the procedural instruments to tell the investigation and society about these people’s complicity in the crime? If the court refused to take Pukach’s statement into account, this raises a question: was pressure applied to the court?

“In the sentence itself, the crime was classified under Article 93 of the ‘old’ Criminal Code – ‘intentional homicide,’ – but the article’s clauses indicated in the sentence do not stipulate classifying a homicide as a contract murder. But the investigation found out that the orders to kill came from the late minister of internal affairs. In other words, the found facts seem to prove that it was a contract murder, but the sentence does not say so. In all probability, investigators saw to it that there were no grounds to investigate a contract murder. Why? In my opinion, there are two serious risks here. One is to spot some well-known and influential hirers who have not figured in official court materials before.

“The other is that this may raise the question of responsibility of not only the accessories to murder, but also of the law-enforcers who investigated this crime. Then not only those who might be involved in the murder, but also those who have been investigating this case for many years will have to defend themselves. And the longer the investigation is going on, the tighter closes the circle of the law-enforcement bodies and the court which classified this case in precisely this way. This circle is closing in the fear that some other information may open up – they worked unprofessionally or did not investigate something deliberately.

“I am a pessimist in this matter. I don’t think society has any chances to receive a clear and expected answer under the current leadership. For me it looks like a flag which each president and prosecutor hand over to their successors. This case has long turned into an instrument of political populism.”

“AWARDING KUCHMA A CHURCH ORDER IS A TERRORIST ACT AGAINST MORALITY”

Oleksandr YELIASHKEVYCH, Member of the Ukrainian Parliament of the second and third convocations:

“The Gongadze-Podolsky case is just a small chapter in the ‘case of Kuchma,’ the godfather of all the Ukrainian corruption and oligarchy, who ‘presented’ us with many of his pupils, including Lazarenko, Tabachnyk, Lytvyn, Liovochkin, Medvedchuk, Yanukovych, and other well-known characters. Practically all the main and, unfortunately, so far incurable maladies of the Ukrainian leadership are infected with the Kuchma virus – a virus of amorality, unscrupulousness, greed, and kleptocracy. Ukraine needs a juridical and moral assessment of the criminal actions taken in this country’s main office room as an antidote against Kuchmism which entangled politics, journalism, and civil society with its tentacles. Generous rewards from the Kuchma-Pinchuk Family are tempting rather unstable Western politicians and becoming a major cause of deep moral degradations of many of Georgy Gongadze’s friends and colleagues who in fact sold out and betrayed him. And awarding Leonid Kuchma a Ukrainian Orthodox Church (Kyiv Patriarchate) order ‘for promoting spirituality’ is an indelible shame, a terrorist act against morality.”