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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

Not yet the end…

The aggrieved person, Oleksii Podolsky, walked out of the courtroom, where Kuchma lawyers’ complaint was being heard
13 December, 2011 - 00:00

The Kuchma case hearing is on the freezing point again. The aggrieved party, Oleksii PODOLSKY, walked out of the courtroom, where a judge was looking into a complaint of the ex-president’s lawyers about instituting criminal proceedings against him.

“I think the judge infringed my rights,” Podolsky told The Day. “We requested the hearing to be adjourned so we could thoroughly study the case. All my petitions were rejected. Then I challenged the judge, but the challenge was also turned down. In her opinion, there were no grounds for this. It looks like the Pechersky Court respects the rights of Kuchma and, hence, is promptly hearing his case but spurns my right to study the case. Does the court have a Constitution of its own?”

Leaving the courtroom, Podolsky noted that he categorically opposed the case being heard without him. But, in his view, the court will hand down no ruling today because it has a few more petitions like this to look into. Yet the number-one question today is challenging the judge because she is unable to adequately conduct the sessions.

Incidentally, Podolsky also told The Day that Oleksandr Moroz and Oleksandr Yeliashkevych were not present at the hearing. The latter was not even recognized as aggrieved party, while Moroz was not duly notified – the summons was sent to somebody named Morozov at a wrong address.

Accordingly, as the “fateful case” further unfolds, it is bringing along more and more unexpected points.

The text of Podolsky’s petition to challenge the judge in the Pukach case contains a lot of important facts. You can read it on The Day’s pages. We are sure this will shed new light on the “dark sides” of the past few decades’ most high-profile case.

“The absurdity of the Ukrainian judicial system, which has nothing to do with Justice today, forces me to turn to Judge Andrii Melnyk himself in order to challenge him. I have to turn to this power-wielding person even though I am strongly convinced that this very Melnyk has committed actions that can be classified as crime. This crime is directly connected with the Oleksii Pukach case, in which I was pronounced the aggrieved party when Melnyk presided over the court session. Besides, I am in fact forced to count on what does not exist at all by definition: the remnants of conscience in such a substance as Pechersky Court deputy chairman, i.e., Melnyk again.

“On February 9, 2000, with my beating-up four months away and when Heorhii Gongadze was just seven months and seven days to live, an attempt was made on the life of MP Oleksandr Yeliashkevych on Kyiv’s Independence Square. An unknown suddenly hit the victim on the head with what might be brass knuckles, judging by the nature of injury and fracture of the bridge of the nose. Doctors say Yeliashkevych survived by sheer miracle, for, as a rule, so powerful blows to precisely this spot of the head usually produce a lethal result.

“In his first letter of complaint to the law-enforcement bodies and in his testimony to the investigator, the MP Yeliashkevych insisted, with good reason, that the crime against him had been ordered by the then President of Ukraine, Leonid Kuchma. Symbolically, Ukrainian society only learned about Yeliashkevych’s accusations against Kuchma from Radio Continent programs, where the abovementioned Gongadze, later killed to please the same Kuchma, was the only Ukrainian journalist to let the hospitalized beaten-up MP speak in a live broadcast. [It will be relevant to recall the petition of Podolsky to the law-enforcers on June 10, just hours after being beaten-up, and on June 12, 2000, in which he called President Kuchma and Interior Minister Kravchenko the masterminds of the crime, as well as a plea of the still alive Gongadze to the then Prosecutor General of Ukraine, M. Potebenko, to protect him from the so-called “eagles” of Kuchma and Kravchenko, who had begun hunting for him in the summer of 2000. – Author.]

“What is common in the crimes against Yeliashkevych, Podolsky, and Gongadze?

“Firstly, the motives of the mastermind whom they exposed and tried to prevent from carrying out the policy of corruption. The point is that all the aforesaid citizens were devoted to the same cause at the time: they exposed – persistently, convincingly, and, what is more, uncompromisingly – the mass-scale rigging of Kuchma’s election for a second presidential term. At the same time, each of them tried, by the methods of their profession and by the ideological force of their persuasions (Yeliashkevych in the Verkhovna Rada of Ukraine, Gongadze on the radio and on the pages of Ukrainska Pravda, and Podolsky in the non-governmental publication MI and in Ukrainska perspektyva), to fight against Leonid Kuchma’s criminal intentions to usurp authoritarian power in Ukraine by falsifying the free expression of popular will.

“Secondly, after the notorious Melnychenko tapes, which contain expert-proven evidence of Kuchma’s motivation and complicity in all three crimes, had been made public, even foreign countries saw a link between these cases. (I am deliberately not quoting the tapes in order not to further publicize Kuchma’s savage anti-Semitism, maniacal xenophobia, and foul language with respect to his political opponents, foreign political ‘friends,’ and ordinary citizens of Ukraine.)

“It is this link that prompted the Council of Europe’s Parliamentary Assembly to repeatedly, insistently, and categorically recommend Ukraine to thoroughly and impartially inquire into the closely-linked concrete crimes against Gongadze, Yeliashkevych, and Podolsky. Even the Verkhovna Rada was forced to heed Europe and resolved on January 10, 2002, that Ukraine’s law-enforcement bodies unconditionally follow the PACE recommendation: ‘1.…Launch a special investigation into the beating-up of People’s Deputy of Ukraine O. Yeliashkevych, Deputy Chairman of the Verkhovna Rada Committee on Finances and Banking, in Kyiv. 2. Allot 500,000 hryvnias from the State Budget of Ukraine to enable experts appointed by the Council of Europe to examining the body found in Tarashcha and the recordings made at the President of Ukraine’s office room about H. Gongadze, O. Yeliashkevych, and O. Podolsky.’

“Instead, prosecutors, police and the Security Service have been making attempts in the past 11 years to falsify all the three cases in order to relieve the masterminds of responsibility and a well-deserved punishment.

“As for the Yeliashkevych case, the Pechersky Court and you personally, Mr. Melnyk, were also involved in the falsification.

“First, in March 2002, Interior Minister Yurii Smirnov promised TV reporters to solve the Yeliashkevych case within two weeks. The promise came exactly at the time when Yeliashkevych was blocking the Verkhovna Rada podium, demanding that the PACE resolution be fulfilled and President Kuchma be brought to criminal justice. Immediately after the minister had made this high-sounding statement, his subordinates rushed to Correctional Facility No. 119 in Boryspil, near Kyiv, where they chose a suitable – drug-dependent – candidature in the prisoners’ card file to fulfill the task set by the minister. They ‘solved’ the case in two weeks, as the minister had promised. No one knows what they subjected the hapless Vitalii Vorobei, a 22-year-old hardcore drug addict, to – it could have been promises, tortures, punishment cell, beatings by his cellmates, a ‘cold turkey’ or an overdose, – but, this way or another, the youth, who had been inside for almost 18 months for committing other crimes, suddenly ‘recalled’ that he had ‘accidentally’ committed a crime against the MP on February 9, 2000.

“In March 29, 2002, the Interior Ministry of Ukraine announced that the Yeliashkevych case had been referred to the Pechersky Court. But Minister Smirnov, who had been bragging at press conferences about the fulfillment of Kuchma’s instruction, forgot for some reason to tell the public that the only evi-dence in the case was Vorobei’s dubious confession. The police general must have been too ashamed to boast that investigators – who worked under his direct and strict supervision – had not at least formally interrogated the aggrieved person, Yeliashkevych, or conducted a defendant identification procedure. Prosecutors failed to notify Yeliashkevych about any of their decisions on bringing Vorobei to justice and finishing the pretrial investigation. Nor did they allow Yeliashkevych or his lawyer to read the case record. Indeed, why should ‘Kravchenko’s eagles,’ who had turned into ‘Smirnov’s falcons’ by then, bother about such trifles?

“So the Yeliashkevych case found itself in the hands of Judge Melnyk. The latter, once a top achiever at a law school, the son and grandson of judges, who would absorb the subtleties of court trials even in his childhood at home, did not even bulge to have the case reexamined due to the ‘childish mistakes’ made by the investigators. Instead, he spent just few hours to read the case and bring forth one of the most prominent masterpieces of the Pechersk justice.

“As a result, the sentence that Melnyk signed was based on just one piece of evidence – Vorobei’s self-defamation. Judge Melnyk and the investigators failed not only to invite Yeliashkevych and his lawyer to the trial but also to grant the nearly-killed MP the procedural status of the aggrieved person so that he could not be a party to the trial. Therefore, Judge Melnyk deprived Yeliashkevych of his constitutional right to defend his interests and dignity, to file a civil suit and an appeal. He did not even send a copy of the sentence to the aggrieved person. And why should he have done so? The judge noted clearly in the sentence: ‘As the parties to the trial did not challenge the factual circumstances of the case, the court considered it unnecessary to inquire into other evidence of the case.’

“This raises some very relevant questions. Had Melnyk ever read the Constitution of Ukraine – at least the chapters that set out the principles of justice and human rights? Did he leaf through, at least once, the Criminal Procedure Code of Ukraine, where there is a clause on the requirements to court investigation? Why did he opt for ‘expediency’ instead of such things as comprehensive and impartial court investigation and presumption of innocence? Was this shameful sentence really written by the Andrii Melnyk who had raved about the rule of law in his student years? Did he really draw this mothballed ‘expediency’ from the theories of his namesake, Andrei Vyshynsky, the cannibalistic theories of ‘courtroom evi-dence and presumption of guilt’ that justified the physical destruction of millions of Ukrainians?

“But let us, instead of dwelling on Mr. Melnyk’s educational and personality-related problems, get back to the main thing – his office instincts.

“Was Melnyk, with his level of skill and education, aware that his gross violation of Ukraine’s judicial requirements and laws was a criminal offense when he, on the one hand, deliberately convicted an innocent and, on the other, also deliberately bailed out the true criminals? I am sure he was.

“Did Melnyk understand in whose interests he deliberately breached the law, violated the destiny and rights of concrete people, and, hence, counted on a proper governmental reward even if nobody had promised him anything? I affirm he did: he could not but understand this and, hence, counted on a reward from the governmental officials who ordered the attempt on Yeliashkevych’s life.

“And I doubt very much that this trial was held at all as such: it must have been confined to court papers. I have a doubt that borders on certainty that there were no parties to this trial other than Judge Melnyk and the true organizers of the attempt on Yeliashkevych’s life – Kuchma and his familial and political entourage.

“Can anything but panic fear and awareness of his criminal guilt explain another office-related crime that Melnyk committed, this time as an administrator, i.e., deputy chairman of the Pechersky court? With utmost disrespect for the Constitution and all the laws of Ukraine, arbitrarily and brazenly, covering up the tracks of his crimes, he has not been referring the aggrieved party’s complaint to the Court of Appeal for six years (!) on end. And how can he put to official scrutiny his sentence on Vorobei, where he wrote the proof of his crime with his own hand? How can Melnyk possibly run his head into the noose, when he knows that even the false confession of Vorobei no longer exists because the latter has given officially recorded testimony that he slandered himself and assumed responsibility for attempting on Yeliashkevych’s life? Moreover, he not only gave an account of the methods that Smirnov’s henchmen had used on him but also disclosed their names, ranks, and posts. To crown it all, there is irrefutable evidence of Vorobei’s absolute alibi: he could not be on Kyiv’s Independence Square on February 9, 2000.

“I am sure Melnyk is bound to answer, sooner or later, to the popular justice of the Ukrainians (I will do my utmost to have this done symbolically at the Pechersky Court.) For the criminal misdeeds of this judge, who was supposed by vocation to protect individuals from the government’s arbitrary rule, do not differ at all, by their motives and meanness, from the violence which Oleksii Pukach accepted in exchange for governmental kindness.

“We know now that the true role of Melnyk in the Pukach case was to defend the interests of the organizers of Gongadze’s murder. This amounts to a gross violation of Ukraine’s Constitution and laws, to which the judge resorted during the trial and which we, parties to the trial, witnessed.

“It is Melnyk who made it a closed-door trial in the interests of not so much the current government as the organizers of the murder, so that Ukrainian society and the international community could not hear the truth about these facts but watch and hear insinuations about some mythical secret services, spies, and sinister plots, i.e., the manipulative nonsense for the creation and spread of which Kuchma’s family – Viktor Pinchuk and Olena Kuchma – are spending tens of millions of dollars both in Ukraine and in the entire Western world.

“It is Melnyk who withdrew from the trial the case of the brutally murdered Interior Minister Kravchenko in order to cut off the thread that closely links Kuchma and Volodymyr Lytvyn with the crimes of Pukach. Now Melnyk is finishing the mission: he arbitrarily withdraws Kravchenko from the case – this time, in juridical terms. It is nothing but the interests of those who organized the murders of Gongadze and Kravchenko, the prime witness of the organization of the journalist’s murder, that can explain the reason why Melnyk deprived the parties to the trial of the possibility to hear – in essence, with witnesses and examination reports – the case of Kravchenko’s murder and the falsification of conclusions about his suicide. This case clearly shows the ears and butts of both the organizers and those who granted, behind the back of Ukrainian society and the victims, the political guarantees of immunity to the Kuchma family after the Orange Revolution.

“I am almost convinced that, in spite of all the arguments and facts that I have put forward, Judge Melnyk will go on presiding over this trial in order to fulfill the task assigned by the organizers, finish this trial with as much benefit as possible for the Kuchma family, and occupy the chair of a High Economic Court judge, which, as far as I know, has already been promised to him after he had brought the Pukach trial to the end.

“He is sure he will not suffer from either my appeal to the Prosecutor General’s Office about his crimes nor my petition to the disciplinary bodies of Ukraine’s Board of Justice which I am certain to lodge in order to document their attitude for the future Justice.

“In the end, I would like to turn to citizen, not judge, Melnyk. You often grin haughtily and ironically into my eyes when I speak about the Constitution, human rights, and civic awareness, but every now and then you call me defendant instead of aggrieved party, as if it were a slip of the tongue. Policemen and prosecutors used to smile in the same way into my eyes 11 years ago, whenever I said that the crimes against me and Gongadze had been perpetrated by undercover police operatives. I suggest you asking the defendant, Lieutenant-General Oleksii Pukach, if he feels like smiling today or, still better, go out on the street and look into the Ukrainians’ eyes, the eyes in which you cannot but notice that a true popular justice is steadily moving into a future Ukraine and is sure to find its own Maximilian Robespierre and a new-time Nestor Makhno.”

Citizen Oleksii PODOLSKY