The case of journalist Georgiy Gongadze, murdered in 2000, is still not solved.
The only major success in this case was the conviction of the direct executors of the crime and the arrest of their leader, ex-Police General Major Oleksiy Pukach, who is now being tried behind closed doors. With Pukach’s arrest, many waited for the names of those who ordered Gongadze’s murder to be established. And many expected these people would be brought to justice.
But because many of the high-ranking officials whose names were mentioned in the investigation continue to be influential today, the investigation has dragged out inconclusively for 11 years.It has already become commonplace to mention the Gongadze case before every election (every candidate for Ukrainian president has built their campaign on the promise of uncovering the names of those who ordered the murder).
It is also common to manipulate statements and facts to suit political timetables. Multiple changes in investigators and attention to the Gongadze case, alternating from intense to lackluster, have become customary.
Valentyna Telychenko is a lawyer representing
Myroslava Gongadze.
It is, perhaps, precisely because of the drawn-out character of the case that the trial of Pukach has become closed without much opposition from Ukrainian society. Such a closed trial allows investigative mistakes to be hidden, including the absence of political will in determining who indeed ordered the journalist’s murder.
The main problems in the Gongadze case are the following:
1. Closed trial of Pukach: Among 116 volumes of the case, only about 10 are secret. When the evidence regarding the accusations of the three police officers who executed the crime was heard, only “secret” workers of the police were questioned in a closed procedure, while all the rest were questioned in open session. Clearly the court is being pressured to hide defects in the pre-trial investigation.
Thus, in order to hide from society the illegal refusal to investigate the motives, the court has used the presence of several secret volumes as the pretext to hide behind closed doors during sessions.
The closed nature of the entire judicial process is
a violation of the rights of those who suffered and of society’s right to have a fair judicial review and free access to information. A closed judicial process is also an artificial obstacle for journalists to fulfill their professional obligations of informing the public about socially important events.
2. The dispersing of cases. As of today, there are five cases tied to Gongadze’s murder:
1) the accusations against Pukach (already in legal proceedings);
2) the accusations against ex-Interior Minister Yuriy Kravchenko (the pre-trial investigation still is not concluded;
3) the accusations against ex-President Leonid Kuchma (the pre-trial investigation is concluded, but when this case will go to court is not clear, although not sooner than several months from now);
4) other persons who are complicit in the murder;
5) and the case behind the accusations of Mykola Melnychenko, Kuchma’s ex-bodyguard, is allegedly being investigated by the investigative department of the Security Service.
According to the law, if an occurrence of a crime is one and the same, then the severance of the cases is possible only when there are substantial obstacles in reviewing the cases together. In the case of Gongadze’s murder, it is essential to unite into one process at least the cases regarding Kravchenko [killed on March 4, 2005 by two gunshot wounds to the head, ruled as suicide] and Kuchma.
This will help make a determination about those individuals whose names figure in the questioning of Pukach and Melnychenko (Parliament speaker Volodymyr Lytvyn, former Security Service of Ukraine (SBU) chief Leonid Derkach, former SBU head Yevhen Marchuk and Oleksandr Moroz, who was the first person to make public several installments from the Melnychenko tapes (which reportedly incriminate Kuchma), etc.)
3. Procedural uncertainty of those figures who were, or are, high-ranking officials. Procedurally uncertain remain the statuses of Lytvyn, Eduard Fere, a former top Interior Ministry official, Derkach and several other people against whom there is the same amount of evidence as against Kravchenko and Kuchma (the testimony of Pukach and the Melnychenko tapes).
Former President Leonid Kuchma and his wife, Lyudmila, stand in front of the coffin of former Interior Minister Yuriy Kravchenko during his funeral in Kyiv on March 7, 2005. Kravchenko died from two gunshot wounds to the head two days earlier, just before he faced questioning in the Sept. 16, 2000, murder of journalist Georgiy Gongadze.The death was ruled a suicide. Investigators in December said Kravchenko and other officials ordered Gongadze’s murder “because the victim was fulfilling public and journalistic duties.” Kuchma is also charged with exceeding his
authority in the death. (AFP)
Yet there are no decisions about refusing to initiate a criminal case, or an order about initiating a criminal case.
Attempts to appeal against the inactivity of the general prosecutor regarding the opening of a case against these individuals in the Pechersk Court did not yield any results.
In Ukraine, the inactivity of the investigative organ which is involved in a criminal procedure cannot be appealed because there is a letter from the head of the Higher Administrative Court of Ukraine regarding the non-jurisdiction of such inaction by administrative courts.
The Criminal Procedural Code of Ukraine affirms, meanwhile, it is possible to appeal the regulation, but not its absence.
Therefore, no legal mechanism exists to influence the general prosecutor to open criminal cases as to the above mentioned individuals.
The case once again remains open for political manipulation.
4. Not investigating the pressure on the investigation in the period of 2000-2004.
The European Court of Human Rights in its decision in the case Gongadze vs. Ukraine recognized the fact of the inadequacy of the investigation of this murder. Thus, the court in Strasbourg noted:
“The court considers that the facts of this case demonstrate that during the investigation until December 2004, the organs of state power were by and large occupied with proving that higher state officials did not participate in this affair, and not in establishing the truth about the circumstances of the disappearance and death of the applicant’s husband … In this case the question that the state organs were responsible for conducting an effective investigation regarding the circumstances of the murder of the applicant’s husband is without argument.
Ex-bodyguard Mykola Melnychenko allegedly recorded crimes
of ex-President Leonid Kuchma, others.
Considering the previously mentioned, for more than four years no effective investigation was conducted in respect to Article 13, the demands of which are wider than the obligation to conduct an investigation, which is indicated in Article 2 of the Convention.
Thus, the court has decided that the applicant was deprived of an effective means of defense as to the death of her husband.” The Ukrainian general prosecutor refused to investigate the interference in the investigation of the Gongadze case, particularly establishing the persons who were involved in falsifying and blocking the investigation, irrespective of the European court’s decision that the investigation was conducted not as it should have been, and obligating Ukraine to find those who are to blame in an independent investigation.
5. Pukach’s stay in prison. Currently, Pukach is not being interned in the Lukianivsky pre-trial detention center, where he is supposed to be, but de-jure in a non-existent “isolation cell” of the SBU (the official name is the “Department for Securing the Pre-Trial Investigation of the SBU”).
Pukach’s stay at the considerably more comfortable SBU “isolation cell” is the result of an agreement with the Ukrainian general prosecutor.
The decision to keep Pukach precisely in the SBU’s “isolation cell” was pronounced personally by the head of the Pechersk Court, Judge Inna Otrosh, who consciously, in my opinion, exceeded her authority since the determination of where to confine an individual who has an order to be kept under guard is made not by the court, but by the respective territorial organ of the state penitentiary system.
Former police Gen. Oleksiy Pukach is
being tried secretly for the murder of
Georgiy Gongadze.
This SBU isolation cell is, in fact, illegal and is an institution that is not registered anywhere, and which is not supposed to keep anyone under guard.
The stay here is not only comfortable for Pukach, but provides the opportunity for those government representatives who are interested in him to secretly contact him.
Several petitions were made regarding the detention of Pukach in an illegal prison, however the court coolly affirms it does not see any violations, although according to the law “About Proceeding (Pre-Trial) Imprisonment” and the Criminal Code of Ukraine, individuals can be confined only in the institutions of the state penitentiary system, and temporarily in the isolation cells of the internal affairs ministry’s cells for temporary confinement.
The SBU cannot have such cells. Essentially, holding Pukach in an illegal cell is a felony.
Since the fall of 2006, the investigation only imitates the search for those who ordered the murders. Even after Pukach’s arrest in July 2009, the process remained weak and investigators permitted an extraordinary number of mistakes.
The maximum amount of time – 17 months – was used before the case for the accusation against Pukach went to court, and only after that was a criminal case launched against Kuchma. It is of great concern that the inquest’s deferment and mistakes can result in the names of those who ordered the murder of Gongadze never being known.
The Gongadze case is a test of the judicial system in Ukraine. For the last 11 years, we have not been able to pass this test.
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Valentyna Telychenko is a lawyer representing Myroslava Gongadze, the widow of journalist Georgiy Gongadze.
