Gongadze case takes a different turn

Mykola Melnychenko being portrayed as a traitor proves a widespread concept in Ukraine. At one time, Kuchma and his entourage did their best to instill this concept in the Ukrainian in the street. Aftert ex-Major Melnychenko [of the Ukrainian president’s security sertvice] had to leave Ukraine for the second time, one has been hearing that he did so to avoid the renewed criminal proceedings against him, on charges of breaching the Ukrainian version of the Official Secrets Act. The question is: Whom did Melnychenko turn traitor to? Of course, he isn’t perfect and deserves criticism, but he has never turned traitor to Ukraine. He turned traitor to the clannish and oligarchic system created by Kuchma during his two presidencies. Of course, he is a traitor to them because he washed in public the dirty linen of the president and his cabinet. Melnychenko let the [world] public know the truth about Kuchma’s ten years in office.

Melnychenko’s lawyer Mykola Nedilko agreed to meet with me near the Pechersk District Court that was handling his appeal against the ruling of the General Prosecutor’s Office to resume criminal proceedings in the Melnychenko case [previously officially dismissed]. Even though the hearings were formally open, media people were barred access to the courtroom. In fact, Nedilko said that the premises on which that particular hearing took place could hardly be described as a courtroom; it was the justice’s reception room. After 10 to 15 minutes, the judge ordered the hearing adjourned. “It would be interesting to compare the conditions in which the defense councils of Melnychenko, Kuchma, and Lytvyn operate, for this would make one understand which comes first in Ukraine: the rule of law or the rule of power. I believe everyone would realize that the latter comes first.”

More on the criminal cases involving Mykola Melnychenko, Leonid Kuchma, and Oleksii Pukach, in conjunction with the murder of the journalist, Heorhii Gongadze, in the following ex-clusive interview with Melnychenko’s defense council Mykola NEDILKO.

Mr. Nedilko, we know that Mykola Melnychenko is currently in the United States. Did you know about his intention of leaving Ukraine? Are you in touch with him?

“We get in touch with each other, now and then. I was unaware of the date on which he intended to leave Ukraine, but he did have this intention. We had of late started receiving verified information to the effect that his life was in danger. He was being followed wherever he moved and reliable sources informed that attempts on his life were in the making, also about who was planning them and how. I cannot discuss this at the moment. Subsequent events concerning Melnychenko proved this information to be valid. The situation with the Gongadze case and the tapes scandal had made a U-turn, with the turning point starting in May 2011. If one analyzes the phases, beginning in September 2010 until June 2011, and later, one will see that something must have happened that reversed the situation with the Melnychenko case, and that this change was meant to damage him. This change for the worse also applies to the Gongadze case.”

What happened?

“From the moment of his arrival in Ukraine, Mykola Melnychenko acted on the strength of arrangements made with the Prosecutor General’s Office (PGO), personally with the First Deputy Prosecutor General, Renat Kuzmin, to the effect that Melnychenko would actively collaborate with the investigating officers (and this considering that he had done just that before his visit) in the criminal proceedings in conjunction with the Gongadze case. Melnychenko had actively collaborated in the opening of a criminal case against ex-President Leonid Kuchma. He was further to appear in court as witness in other criminal cases planned by the Prosecutor General’s Office, primarily in regard to Ukraine’s incumbent Speaker Volodymyr Lytvyn.”

How do you know this?

“I know this from what Mykola Melnychenko told me. He said he’d been in contact with First Deputy Prosecutor General Renat Kuzmin. The Kuchma case was to be followed by that of Lytvyn. These arrangements started being carried out until May 15, 2011, when two ranking officials met and decided on a punitive operation against Melnychenko, also on a campaign meant to discredit Renat Kuzmin and have him out of office. Eventually, this scenario started being played out.”

Would you identify those ranking officials?

“These people occupy the highest official posts.

“As it was, Renat Kuzmin found himself under a mounting, unbearable pressure. His own official status became shaky after Oleksandr Kalifitsky was relieved of his post as head of the PGO’s Chief Investigations Directorate (he was recently appointed as the public prosecutor of Ivano-Frankivsk oblast). He was replaced by Andrii Kurys. After this replacement, collaboration started on a downward curve until Melnychenko realized that all arrangements made with Kuzmin were null and void, and that, worse so, his life was in danger.

“Here is an example. Kuchma’s defense lawyers challenged ex-Prosecutor General Sviatoslav Piskun’s decision to close the Melnychenko criminal case. Guess what was the PGO’s response. It read that Piskun’s decision was legally valid, but recommended that the complaint be referred to a court of law. In other words, the Prosecutor General’s Office offered Kuchma’s lawyers an opportunity to have this decision legally canceled. Under the existing Code of Criminal Procedure, the PGO’s response ought to read something like: ‘To begin with, your complaint cannot be heard in court because you are not entitled to appeal against the said court ruling. Second, you are past the appeal deadline in this case. Third, an appeal against a decision made by the Prosecutor General cannot be forwarded to [another] Prosecutor General, since this complaint can be considered by a higher-ranking public prosecutor, and since the Prosecutor General occupies the highest judicial post.’ In other words, Kuchma’s lawyers should have lodged the complaint with a court of law forthwith. Since the appeal would be well past the legally determined deadline, they secured GPO support. Otherwise the court’s biased attitude would be clearly obvious (although this was apparent from the outset). GPO’s stand in the matter was remarkably clear even as the court was hearing the complaint. Mind you: the justice was Rodion Kireiev. I think his ‘professionalism’ and ‘unbiased approach’ are well known within and without Ukraine. During the first instance hearings, the public prosecutor objected to Kuchma’s lawyers’ complaint, saying that Piskun’s decision was legitimate and that there were no legal grounds for overriding it. In the Appellate Court, he made a different statement: ‘Piskun’s ruling is legitimate, but so is that passed by [Justice] Kireiev.’ In other words, he ran with the hare and chased with the hounds. And now the Prosecutor General says the Pechersk [District] Court passed its ruling in keeping with the law, thus questioning his colleague Piskun’s professional performance, as well as that of the Prosecutor General’s Office. In this particular case, the Prosecutor General ought to have voiced not his personal concept but the PGO’s formal stand in the matter.”

PRESIDENT COULD ORDER ALL THESE CASES ADJUDICATED OBJECTIVELY

You must have been present during the questionings of Melnychenko at the Prosecutor General’s Office. Who was the last to question your client?

“His [other] defense council, Pavlo Sychov, was mostly present there. From what I know, the latest questioning was conducted by a PGO investigator by the name of Andrii Kurys. That one focused on Melnychenko’s unlawful arrest at a Ukrainian border checkpoint (he was headed for Poland to attend an international economic forum).”

What do you think Renat Kuzmin had in mind when he started criminal proceedings against Kuchma?

“He stated on more than one occasion that the criminal case wasn’t meant to whitewash Kuchma. Melnychenko regards Kuzmin as a real man, saying there are few like him left in Ukraine; that Kuzmin took a step few others would have taken, had they held his post as Deputy Prosecutor General, that even the Prosecutor General would have thought twice. Melnychenko holds no grudges against the PGO just because their relationships have gone sour. He understands only too well that sometimes a step backward today means taking a couple of steps forward tomorrow. Hard as someone may be trying to drive a wedge between Melnychenko and Kuzmin, this just won’t work.”

Would you care to comment on Prosecutor General Viktor Pshonka’s statement that Melnychenko is on OPB, Kuchma’s lawyers claiming Melnychenko fled Ukraine to avoid legal responsibility, considering that all this happened on the same date?

“The thing is that Kuchma’s lawyers planned and launched a campaign in regard to the Gongadze case and other pertinent criminal cases, so these lawyers’ statements perfectly fit into the pattern. In the first place, their statements are a response to those made by Melnychenko’s lawyers. Today, considering that the Kuchma criminal case is on record, avoiding answerability and whitewashing the ex-president will be easier said than done. This case can be closed or won in court, but it will remain in public memory.”

You believe there is some inner struggle underway at the Prosecutor General’s Office. Do you think President Viktor Yanukovych is involved? If so, to what extent?

“Very much depends on the president of Ukraine. The Gongadze, Kuchma, and Melnychenko cases will be solved depending on how the head of state will feel about them. In fact, the outcome of the tapes scandal largely depends on Viktor Yanukovych’s attitude. He can order all these cases adjudicated objectively. Therefore, the outcome of these cases will show the president’s stand.”

PHYSICALLY ASSAULTED. CONVINCED UKRAINIAN CLANDESTINE AGENCIES WERE RESPONSIBLE

You have stated that, during the hearings of Speaker Volodymyr Lytvyn’s libel and slander complaint against Melnychenko and his statements about Lytvyn’s alleged involvement in/with the murder of journalist Heorhii Gongadze at the Vasylkiv City/Regional Court, you were threatened by the Verkhovna Rada’s official Anatolii Selivanov. Did you lodge a complaint? If so, what was the response?

“I believe that Lytvyn was involved in/with that planned operation. His complaint is just a component of that plan – which, among other things, was aimed at barring Melnychenko exit from Ukraine. Almost as soon as the hearings began, Lytvyn’s lawyers requested that Melnychenko’s presence in the courtroom be secured by denying him exit from Ukraine. I was amazed to hear this, considering that no such measures are usually taken in the course of a lawsuit. Besides, the Code of Civil Procedure of Ukraine doesn’t have a direct clause to this effect. Apparently they decided to set precedent in the Melnychenko case. After being threatened by Selivanov, I lodged a complaint with the militia. Selivanov had told me: ‘Think about yourself, not Melnychenko.’ I wrote in my complaint that such threats could be testified to by Justice Yulia Hribanova who presided over the trial, and by Mykola Melnychenko who was present in the courtroom. In the end, none was asked to testify and I was notified that my complaint had been formally turned down.”

Were there other threats?

“Selivanov’s were the first round. The second one began after my statement to the effect that Kuchma and Lytvyn’s teams had combined efforts to throw Melnychenko, rather than Kuchma, behind bars. Lytvyn’s defense was the first to react. One of his lawyers lodged a complaint with the Higher Judicial Qualifications Commission which forwarded it to the JQC in Khmelnytsky, so I could be found guilty on all professional counts and disbarred. This complaint was deliberated but not granted, simply because it came from an entity that was not entitled to lodge it; also, it wasn’t executed in keeping with legally set procedures. Last but not least, it was turned down simply because my statement reflected my personal views; this in no way breached the professional ethics code and even less so could warrant my disbarment.

“After problems started in the relations between Melnychenko and PGO, I noticed that there were more secret police people tailing us, that our phones were bugged, and so on. This worsening of relations reached its peak after Melnychenko’s disappearance and climaxed after Melnychenko turned up abroad. I was physically assaulted. Several days prior to that I’d spotted an increase in surveillance, with men practically taking turns watching my home and office doors from across the street. Ditto Melnychenko’s home. I also spotted them in Plesetske, a village in Vasylkiv raion, Kyiv oblast, whose electorate had made me a member of the Vasylkiv Regional Council. I had the cars’ registration plates checked and before long discovered that some were formally canceled and others fake.

“Relying on this information, I lodged a complaint with the Prosecutor General of Ukraine. I did so on the morning of Sept. 28. That same evening, on my way home, I suspected that my car was being followed, so I took a different road, just to make sure. After some spy movie stuff, taking sudden turns, slowing down, then speeding up, I was sure the other car was tailing me. In the end, I managed to lose it, but when I drove up to my home, the car was already there. Two of them, in fact, with one blocking my way ahead and the other one barring retreat. I had no choice, so I floored the gas pedal and made a breakthrough. They kept tailing me, three cars now. In the end, they drove me into a birch grove. Three athletically built young men got out of one the cars and started smashing my car windows, cursing, threatening my life. Thank God, I managed to [start the engine and] press the gas pedal. I managed to escape. In the morning I reported the incident to the militia, drew up and signed an appropriate statement that specified my attackers’ car registration plates. But then it transpired that all were fake. Once again, I was denied criminal proceedings.

“Several days later, I discovered knife cuts in my car tires, made so the tires would start getting flat at high speed, so I would lose control of the car. Still later, I thought something was wrong with my car engine. At the service station I was told two strange objects – 5 by 10 cm boxes bound by electrician’s tape – had been discovered under the bumper. Outwardly they looked like an explosive device. I called the militia. They came and finally told me the boxes were empty. Later, my trusted militia sources told me the boxes were electronic devices meant to monitor the car’s location round the clock. In other words, I was being closely watched.

“Such actions are absolutely unlawful. Any police work in regard to a certified lawyer has to be warranted by the regional public prosecutor or by the Prosecutor General, or by his deputy, provided criminal proceedings have been initiated against this lawyer. I knew such options were being discussed ‘upstairs.’ Why? Because once a lawyer finds himself exposed to criminal proceedings, he can no longer be your defense council.”

Do you think you were physically assaulted because of the Melnychenko case?

“Of course I do. Those who spied on me and bugged my car were professionals. The bugs found in my car were professionally made, planted, and very expensive.

“Similar unlawful activities were conducted in regard to my colleague in the Melnychenko case, defense council Pavlo Sychov. His car, parked by his private home, was set on fire after the start of the Kuchma criminal case.

“Both of us are SBU [Ukrainian secret police. – Ed.] officers in reserve, so we know about their techniques. By the way, we spotted them spying on us during our recent meeting in Kyiv. The following morning Sychov found the two front tires flat with knife cuts and the exhaust pipe plugged with polyurethane foam. I’m sure our clandestine agencies were behind all this.”

GONGADZE CASE: FIT TO ADD TO SECRET POLICE ARCHIVES

Don’t you think that the Pukach trial behind closed doors somehow resembles the Melnychenko case? Why is the Pukach trial kept secret?

“I think the Pukach trial is kept secret so the general public can learn nothing about the statements Pukach will make in the courtroom, including about his cutting off Gongadze’s head after a meeting with Lytvyn. Melnychenko testified to this and then the media quoted Pukach as making a similar statement. As a lawyer, I believe the Prosecutor Ge-neral’s Office of Ukraine has enough incriminating evidence – testimonies given by Pukach and Melnychenko, the tapes with conversations in Kuchma’s office, expert phonoscopic findings, and so on – to start criminal proceedings against Kuchma. Among other things, this should be done to answer numerous questions. There is, of course, classified information, but this doesn’t mean that the whole trial should be held behind closed doors. Otherwise, the files relating to the Gongadze case can also be classified, making all of this absurd, with ex-SBU chief Valentyn Nalyvaichenko and MP Hryhorii Omelchenko commenting on the Gongadze case, thus breaching the State Secrets Act of Ukraine and exposing themselves to criminal prosecution. I think that the Kuchma case, if and when heard in court, will also be kept away from the public eye.”

What do you think about Myroslava Gongadze’s lawyer, Valentyna Telichenko, and her motion in regard to criminal proceedings against the persons in the Kuchma case at the moment, considering that she has long been aware of the circumstances that she now uses in substantiating her motion? How does this look from the criminal procedure standpoint?

“I can’t quite figure out her stand. On more than one occasion she has appeared on ICTV Channel (generally known to be run and owned by the Kuchma family, particularly by his son-in-law Pinchuk), saying Melnychenko should be exposed to criminal prosecution, that his case should be investigated, thus brainwashing the viewers into believing that Melnychenko has committed unlawful acts. On one occasion she commented approvingly of Poland barring Melnychenko entry to that country. Needless to say all such statements/ comments serve Kuchma’s benefit.”

Would you agree that the Kuchma case is a cleansing test for all of us?

“I think we have our firm public opinion. If and when this case meets its unbiased and logical end in court, this will benefit our Cabinet and President in the first place. It’s true that the status of the case has worsened, yet this doesn’t mean the end of it. I hope our President will pay heed. Otherwise we, as Melnychenko’s defense lawyers, will have no options. Our complaints are shelved at the PGO, Interior Ministry, and SBU. I’m getting increasingly convinced that the laws meant to protect my rights as a lawyer and citizen just don’t work. My client Melnychenko, as a key witness, and I, as his lawyer, are being ruthlessly pressured. My life, the life of my family are in imminent danger, and the same is true of Pavlo Sychov and his family. Let me tell you all: if the situation keeps aggravating, if pressure continues, those under pressure will surely pay with their blood.”