Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

An intolerable delay

Lawyer Tetiana KOSTINA: “With amazing obstinacy and cynicism, the Prosecutor General’s Office refuses to consider Oleksii Podolsky an aggrieved party”
18 April, 2018 - 14:56
Photo by Mykola TYMCHENKO, The Day

Asked in May last year whether the Gongadze-Podolsky case has been solved, Prosecutor General Yurii Lutsenko said: “No.” But he added: “Investigation will be completed before the end of my term as prosecutor general.” In other words, in the fall of 2017. “It is only until April next year that I may remain in office,” Lutsenko said. Has he kept his promise? Today is April 2018: the Gongadze-Podolsky case still stays on, and Lutsenko remains in office. Why has the case not been completed?

I last spoke to Oleksii Podolsky’s lawyer as far back as August 2017. She pointed out that her client had not been recognized as aggrieve party in this high-profile case, as far as crime organizers are concerned. Six months later I met Tetiana Kostina again to find out if something had changed. She said the situation still remained the same. Paradoxically, in the same case, as far as perpetrators are concerned, and at the trial of Oleksii Pukach, Podolsky is the aggrieved party.

But it is not only this crucial point that attracts attention. There is really so much news. For more details, see the following interview with lawyer Tetiana KOSTINA.

 

“THE MAIN THING IS WHETHER THE NEW HIGHEST JUDICIAL BRANCH WILL STAND TEST OF THE GONGADZE-PODOLSKY CASE”

The latest court session in the Gongadze-Podolsky case was held as far back as May 31, 2017, almost a year ago. Why is there so long a pause? What has happened to this high-profile case over this time? At what stage is it? And when can we expect a new session?

“There are objective and subjective reasons why the case hearing was adjourned without setting the date of the next court session, until audio recordings of all trials are declassified. I will remind you that on May 31, 2017, the High Specialized Court of Ukraine handed down several important rulings about the Gongadze-Podolsky case. In particular, it satisfied my request to declassify audio recordings of all the court sessions in respect of this case.

“It is quite a long process, all the more complicated by liquidation of the Pecherskyi Court, which began later last year by a presidential decree. Besides, the long pause in the case was caused by preparations for work in the reformed Supreme Court. Another essential thing that hinders handling this case has just come up. The Supreme Court cannot hear any criminal cases that involve state secrets because its staff and criminal appeal court judges have no security clearance. In the Gongadze-Podolsky case, the state secret was deliberately invented, and this obstructs justice. Longtime falsifications and manipulations and with so-called secrets is one of the ways to let murder organizers get off scot-free. This is why it is very important that declassification be brought to an end and not turn into a pure formality. All the ‘secret’ things that crime organizers tried to hide forever must become obvious and of common knowledge. I am sure law students will be studying the materials of this case in due time. And how every participant in this case – judges, prosecution and defense attorneys, proxies, and aggrieved parties – will look like depends on their attitude. So, the main question is not the date of the Supreme Court session but whether the new highest judicial institution will stand the test of the Gongadze-Podolsky case and pave the way to dispensing real justice in a case that is crucial for Ukraine.”

“THE KUCHMA FAMILY WANTED TO PROVE THAT IT WAS IMPOSSIBLE TO RECORD CONVERSATIONS IN THE PRESIDENT’S OFFICE ROOM”

Earlier this year the National Bank of Ukraine published a report, with reference to the international company Kroll hired to conduct an independent audit, which says that PrivatBank had been an object of large-scale and well-coordinated fraudulent operations before it was nationalized in late 2016, which resulted in losses worth at least 5.5 billion dollars. Later Nazar Kholodnytskyi, head of the Specialized Anticorruption Prosecution Office, announced that this institution was going to use the Kroll materials in investigating the legitimacy of refunding PrivatBank. This was not the first time Kroll was invited to work in Ukraine. What do you know about its role in the Gongadze-Podolsky case?

“The materials that accuse Pukach of perpetrating crimes against Gongadze and Podolsky include a report of the Kroll detective agency. This report was entered upon the record by decision of then Prosecutor General Mykhailo Potebenko and his deputy Oleksii Bahanets. The report contains not a single signature of any person – it is only certified by investigator Andrii Tkachuk. Interestingly, it is not Kroll itself but Serhii Tihipko, then an MP and leader of the Labor Ukraine party, who handed down the report to the Prosecutor General’s Office (PGO). As Tihipko has repeatedly told the media, it is Labor Ukraine that funded Kroll’s investigation.

“However, it turned out six years later that Leonid Kuchma’s son-in-law Viktor Pinchuk had been involved in financing Kroll, which he himself confirmed. The Kroll people met Kuchma in person. The report says that Kuchma ‘continued to maintain that he had made no humiliating comments on Gongadze, and this is why we have found no conclusive evidence to show that President Kuchma ordered or was otherwise involved in the murder of Georgy Gongadze. Kuchma denied having made allegedly critical remarks, and we failed to meet other key figures. Moreover, the president argues that his words were a montage and taken out of context. Again, there are no witnesses who could raise objections. Neither the circumstances of Gongadze’s disappearance nor the recordings allow us to claim that the president was involved in this affair.’

“It is Kroll Inc. and this kind of ‘findings’ that the Kuchma family badly needed in 2001 to prevent bringing those who ordered the crimes to justice and to form a twisted public opinion in the West about Kuchma’s non-involvement in issuing criminal orders.

“The Kuchma family was out to prove that it was impossible to record conversations in the president’s office room. To achieve the set goal, the US detective agency specifically examined this country’s topmost room. Kroll publicly informed about this examination at a press conference on September 25, 2001. The Kroll report even includes the layout of the presidential office room. Pinchuk also spoke publicly in 2007 about how this examination was conducted and what role he personally played in it: ‘I can just repeat a well-known thing: when we hired Kroll to conduct an investigation, we proved that Melnychenko was lying. He could not have been recording from under the sofa because there was a noise at that point. But there was no noise on the tapes. We couldn’t understand for a long time during the experiment what was causing this noise. I come out of the president’s office room and see the frame of a metal detector. I say: ‘Switch off the frame.’ They switched off the frame, and the sound stopped. Then they switched on the frame, and interference resumed. But the metal detector was on all the time! This means that he lied, and conversations were recorded in some other way. We proved all this just physically. My opinion is: this was all recorded with the equipment installed in the presidential administration’s walls back in the Soviet era.’”

“AFTER KROLL ‘DISTINGUISHED ITSELF’ IN 2001, ITS REAPPEARANCE IN UKRAINE ADDS new QUESTIONS ABOUT NATIONAL SECURITY”

Taking into account our realities, this question may sound naive, but I can’t help asking it: is it possible that the country’s topmost office room, an object of the highest state secret, is examined by a foreign organization under the supervision of an in fact private person – Viktor Pinchuk?

“Yes, I was also shocked when I studied the case. I asked Oleksandr Yeliashkevych about this. It turned out that as far back as October 16, 2001, the Verkhovna Rada of Ukraine voted that Yeliashkevych’s interpellation about information on Kroll’s physical examination of the president’s office room should be forwarded to Volodymyr Radchenko, Chairman of the Security Service of Ukraine.

“This interpellation comprised concrete and important questions, such as: who specifically conducted this examination? Who sanctioned an examination of the president’s office room? Was President Kuchma in his office room during the examination? Did the president of Ukraine know that this examination would be done? Did he allow this examination? What concrete actions were taken in the course of the examination? Which persons were present in the president’s office room during the examination? Was the examination being documented in any way? Does the current law of Ukraine permit this kind of examinations? Was the president’s office room checked for recording devices after this examination? Can this kind of examinations of the president’s office room pose a threat to the national security of Ukraine?

“The Verkhovna Rada has received no answers to this interpellation from the Security Service of Ukraine in the past 17 years – an unprecedented violation of the Constitution and laws in contemporary history of Ukraine. Why did the Security Service fail to answer the important questions of national security? Because any answer entails criminal liability of those who turned the state’s topmost office room into a place of dangerous and extremely harmful ‘experiments’ by Pinchuk, the sponsor of this action.

APRIL 19, 2017. A SESSION OF THE HIGH SPECIALIZED COURT OF UKRAINE / Photo by Ruslan KANIUKA, The Day

 

“Obviously, after Kroll ‘distinguished itself’ in Ukraine in 2001, its reappearance here with a new ‘report’ adds new questions about national security.

“Especially if you take into account that a new Kroll-related conflict erupted four months ago – this time about a likely transfer of PrivatBank customers’ database to Russia. Special services should have prevented Kroll from being invited again. Prosecutor General Yurii Lutsenko, who is very well informed about Kroll’s participation in the Gongadze-Podolsky case, should have been the first to properly react to this, but he failed to do so.”

“THE CONSTITUTIONAL COURT has never banned TREATING the melnychenko tapes as evidence”

Incidentally, you said to The Day as long as eight months ago (No. 46, August 15, 2017): “In this case (i.e., about those who ordered the crimes committed against Oleksii Podolsky and Georgy Gongasze), Podolsky still has no procedural status of an aggrieved party.” Has anything changed since then?

“With amazing obstinacy and cynicism, the Prosecutor General’s Office refuses to consider Oleksii Podolsky an aggrieved party. They know only too well that their attempts to ensure impunity of the crime organizers will be immediately exposed once Podolsky is granted the status of an aggrieved party and we are allowed to peruse the materials of the case that Lutsenko says ‘is dragging on.’ The prosecutor general used this wording immediately after hugging Kuchma on September 16, 2017, on an anniversary of Gongadze’s disappearance. On that day, Lutsenko spoke at the YES forum, the Kuchma family’s brainchild. Then he explained why the case was dragging on: ‘Because the Constitutional Court has banned treating the Melnychenko tapes as evidence. And also because Pukach is not testifying against those who issued him orders. I made several attempts to make him offer this testimony, when he took part in the hearing of his appeal. He categorically refuses to communicate and suggests outlandish versions – almost about extraterrestrials. In general, I gain an impression that he has some health problems, but we can’t do without his testimony, for, as you know, there are no other witnesses left. Searching through documented facts is rather complicated due to shortage of time.’

“There is in fact not a word of truth in Lutsenko’s explanation. The Constitutional Court has never banned treating the Melnychenko tapes as evidence. Pukach kept on saying in courts that Kuchma, Lytvyn, and Kravchenko are the people whose orders he carried out, committing crimes against Gongadze and Podolsky. When the case was heard on appeal, Lutsenko was present at none of the court sessions. As for the witnesses who Lutsenko says do not exist, it is sheer nonsense. For example, he briskly talked to one of them a few minutes before his statement, and the prosecutor general himself is a witness in this case.

“When Natalia Vlashchenko, the presenter of the ZIK TV channel’s program “Hard” on December 17, 2017, asked Lutsenko: ‘Shall we hear some day from the law-enforcement bodies about who ordered the murder of Gongadze?’ he answered: ‘I don’t know. I can’t say. We know very much now, but the key witnesses are dead – except for ex-General Pukach who, unfortunately, is not giving proper testimony in spite of all the attempts, including on my part, although we even suggest commuting his harshest ever sentence. He is in fact the last witness.’ Besides, in the 1+1 TV channel’s program ‘The Right to Power’ in May 2017, Lutsenko stated convincingly and categorically that society would have to wait for another six months for the GPO to finish the investigation of the case and name those who ordered crimes against Gongadze and Podolsky.”

“LUTSENKO IS IMPLEMENTING A PLAN OF DISMISSING THE CASE OF THOSE WHO ORDERED CRIMES AGAINST GONGADZE AND PODOLSKY”

About Lutsenko’s promise to commute Pukach’s sentence… As is known, the former chief of the Interior Ministry’s Outdoor Surveillance Department had his term recounted last January under the “Savchenko Law.” The case materials say that Pukach was in a pretrial jail from July 21, 2009, until January 6, 2016. It is about 6.5 years and, after the recount, it comes to 13 years. This means that, as of March 2018, Pukach had already served more than 14 years in prison. Besides, the court emphasized that the law had set a concrete time span which can change the legal status of one sentenced to life – in other words, it is about the possibility to file an appeal for pardon after serving at least a 20-year term. What do you think of this situation?

“I think it is no accident that Lutsenko said these words a week after the Chortkiv Court had made an incredible – in terms of law – ruling. He extended the already repealed ‘Savchenko Law’ to Pukach on the basis of a new time count. Although Pukach was given a life sentence, the court decided to reduce the term of imprisonment by the time he spent in a pretrial jail – in other words, it is not exactly a life term. Absurd, isn’t it? It is not ruled out that it is implementation of Lutsenko’s ‘plan’ to ease Pukach’s punishment in exchange for his ‘right’ behavior in the appeal court after the declassification of court sessions’ audio recordings. Let me dwell briefly on the chronology of ‘specific’ applications of the ‘Savchenko Law’ to Pukach.

“In January 2017 Pukach turned to the abovementioned Chortkiv Court. The court rejected applying the ‘Sevchenko Law’ to him, noting that life imprisonment is an indefinite-term punishment because the convict is isolated from society by court decision and the sentence does not specify the term of incarceration. The Ternopil Oblast Court of Appeal upheld this ruling, pointing out that life imprisonment cannot be measured by temporal limits. Following this, Pukach appealed to Kyiv’s Shevchenkivskyi Court in May 2017. The court turned down his petition on the grounds that the ‘Savchenko Law’ does not apply to his conviction. In July 2017 Pukach turned to the Pecherskyi Court, but this petition was also turned down. The Supreme Court of Ukraine, temporarily dismissed in December 2017 in the course of judicial reform, made a ‘farewell gesture’ in the last days of its existence at the request of Lutsenko’s deputy Ms. Anzhela Stryzhevska. It ruled that it is possible to apply the ‘Savcheko Law’ to life convicts. In other words, the initiator of applying the ‘Savchenko Law’ to Pukach is the Prosecutor General’s Office with Lutsenko at the head. This is why the prosecutor satisfied Pukach’s petition and applied the ‘Savchenko Law’ to him. This is in fact the first stage of the implementation of Lutsenko’s plan to dismiss the case of those who ordered crimes against Gongadze and Podolsky.”

“THE ELECTION OF STEPAN HLADII TO THE HQCJU IS THE RESULT OF JUDGE HLAII’S PERSONAL FEAR”

In early March, a congress of Ukraine’s judges elected Kyiv Appeal Court Judge Stepan Hladii as member of the Higher Qualification Commission of Judges (HQCJU). As is known, this jurist presided over the hearing of the Gongadze-Podolsky case in the court of appeal. Would you comment on this decision of the congress?

“The election of Stepan Hladii to the HQCJU is the result of Judge Hladii’s personal fear. He hopes to escape responsibility in this commission for the way he handled appeals in the Gongadze-Podolsky case. The list of all his juridical and moral sins in this process is worthy of being entered into the Guinness Records Book. As is known, it is ‘the Hladii troika’ that ‘won’ the Grand Prix of the Den’s International Photo Exhibit. That historic photo was quite aptly named Justice Shuts Its Eyes. Hladii and his loyal colleagues, who turned Ukraine’s most important trial into a tragic farce, have become the face of the Themis forever. Incidentally, in addition to this major ‘achievement,’ Hladii also came in handy in the case of Viktor Yanukovych’s high treason. It is under his chairmanship that a decision was made to hear this case at Kyiv’s Obolonskyi Court. It is already obvious how sessions are held there and what consequences this will have for specialists in the future.”

Surprisingly, this appointment went almost unnoticed for the public and the media. Why do you think it happened?

“There are a lot of reasons why. But I’d like to single out one of them, which is directly linked to the total mistrust of society towards the Ukrainian justice, where the declared reforms only simulate true changes instead of solving decades-long problems. This total mistrust has resulted in a situation when society is taking interest in the idea of restoring justice by way of terror against power-wielders, which is unacceptable for a rule-of-law state.

“The root cause of this Kuchma-begotten disappointment of people is violent methods and longtime impunity of the highest officials. Incidentally, President Kuchma’s office room showed overt signs of the organization of state-sponsored terrorism against journalists, statesmen, and civil society activists, including crimes against Gongadze, Podolsky, and Yeliashkevych. By the way, among those who took part in this terror were the uniformed services and special services, whose role in the Gongadze-Podolsky case is still to be assessed in terms of law. Impunity for issuing criminal orders in the country’s main office room helped create the conditions when, by using methods of state-sponsored terrorism, Kuchma’s pupils shot heroes of the Heavenly Hundred. The absence of true justice and impunity for state-sponsored terrorism creates an illusion that this can be countered with anti-governmental terrorism, and these illusions can be artificially fueled and taken advantage of by the aggressor country. This is why bringing those who ordered crimes against Gongadze and Podolsky to justice is a most burning issue today. We are standing on a certain line, and crossing it may have catastrophic consequences for this country. But, unfortunately, those who are supposed to avert dangers to national security are almost not reflecting on this.”

By Ivan KAPSAMUN, The Day. Photo by Mykola TYMCHENKO, The Day
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