The Gongadze-Podolsky case: three positions

The government is attacking in a broad front. Here we mean the high-profile Gongadze-Podolsky case. It is bad taste to mention both Maidans in this context, because for the “people from Maidan’s podium” this is already a sort of waste material which helped them come to power and continue the old, established traditions, while for the “people from Maidan self” it would mean desecrating the memory of heroism and uprising. Of course, no one would want to write about government in such a key, but its policies concerning the investigation to find the masterminds of the 15-year-old crime leave no other choice. So, there are at least three directions where the participants of the process, including the complainant in the case Oleksii Podolsky and his representative Oleksandr Yeliashkevych, as well as the healthy part of the journalist pool and the public, need to be on the guard.

HOW THE NEW HIGH COUNCIL OF JUSTICE FAILED THE TEST

The High Council of Justice has everything new: an imposing office, built when Lavrynovych was in charge of the HCJ, and also new members and head, elected according to new legislation after Euromaidan. Alas, work methods are still old. At least, we can see this in the recent trials in the case of judge Andrii Melnyk.

We would like to remind that Podolsky wrote (on May 30, 2013) to the High Council of Justice: “I have made multiple public and formal statements concerning numerous cases of abuse of power perpetrated by deputy head of the Pechersk District Court A.V. Melnyk, in particular, the forging of both the trial and sentence in the case of attempt at the life of MP Oleksandr Yeliashkevych [the trial was never held, the victim knew nothing of it, and the suspect, Vitalii Vorobei, confessed later, in 2006, to being forced to plead guilty – see Den’s article “Impunity on Order” of November 24, 2011. – Author], and the brutal sabotage of the Constitution by this figure, when he bold-facedly (and moreover, unlawfully) refused the complainant’s right to appeal. Legal nihilism and criminal activities of this pseudo-judge is directly linked to the political, proprietary, and criminal interests of Ukraine’s former president Leonid Kuchma and his clan. … I absolutely insist that all necessary steps be taken to deprive A.V. Melnyk of his status and position of judge at the initiative of the High Council of Justice, under Article 32 of the Law of Ukraine ‘On the High Council of Justice of Ukraine’ (breach of oath by a judge), and to subsequently criminally prosecute this disgrace of Ukraine’s law.”

However, the Yeliashkevych case, a flagrant example of absence of justice as such, is not the only one. Judge Melnyk was also involved in another high-profile case, that of Gongadze-Podolsky. No one other but he presided over the process in the first instance of Oleksii Pukach, the main perpetrator in the assassination of journalist Georgy Gongadze and in the crime against Podolsky. According to Pukach, Melnyk permitted the visits of prosecutors and Myroslava Gongadze’s representative in court, Valentyna Telychenko, who browbeat him so that he would not mention Leonid Kuchma and Volodymyr Lytvyn in his evidence, naming others instead: Yevhen Marchuk and Oleksandr Moroz. Of course, Pukach was a hardened court executioner for Kuchma’s regime, but his statements deserved at least to be checked. However, despite appeals to the Prosecutor General’s Office from the complainant Podolsky and MP Vitalii Kuprii, the office flatly refused to do that. Moreover, contrary to the law, the Prosecutor General’s Office would not make an entry about the offence in the Uniform Record of Pre-Trial Investigations.

First, on October 6, a sitting of the disciplinary section took place to consider the records of the check-ups held by the members of the HCJ. “It was recommended that the HCJ exclude the motion to dismiss Andrii Melnyk, judge of the Pechersk Court, for breaching the oath perpetrated in the course of considering the case of attempt at the life of MP O.S. Yeliashkevych in 2000, from consideration and hand over to the High Qualification Commission of Judges of Ukraine. I never quite understood if it was recommended on the grounds of jurisdiction, or was the subject of appeal wrong,” said a renowned expert on constitution law, member of the Constitution Court of Ukraine (2006-15), one of the fathers of the idea of the HCJ and member of its first convocation, Viktor Shyshkin.

The sitting of the High Council of Justice self was held on October 15. Firstly, it turned into open humiliation of Podolsky and Yeliashkevych. Just like at the sitting of the disciplinary commission, their endurance was put to test: the sitting started at 10 a.m. and closed almost 12 hours later, at 10 p.m., and Melnyk’s case was considered last in line. Of course, such tricks could seem pathetic when applied to people who have been consistently fighting the system for 15 years. Nevertheless, the situation is absolutely inadmissible, unpleasant, yet revealing.

Secondly, Podolsky’s camp had prepared counter-arguments, which razed to the ground the statements of the HCJ. “First of all, they were obliged to consider the question based on the submission by Renat Kuzmin, authorized HCJ member, on constitutional and legal compliance. Namely, the question of dismissing judge Melnyk for breaching the oath,” emphasizes Shyshkin. “The dismissal of a judge is in the competence of the section which deals with appointing and dismissing judges. The disciplinary section is charged with absolutely different tasks, those of judges’ disciplinary responsibility, and has no jurisdiction over dismissals. Moreover, it is the HCJ’s mission to purge such unfair judges like Melnyk from the legislative branch by submitting an appeal to the Verkhovna Rada. The question should be settled finally by a voting in the parliament.”

As a result, the High Council of Justice had to postpone the sitting to October 20. Revealingly, after the HCJ sitting was over, the HCJ leadership answered the very clear question, “Did judge Melnyk break the oath?” telling the media that judge Melnyk’s case would not be considered in substance, i.e. there would be no consideration and investigation into his breach of oath. This means that the decision was already made.

It is that decision that was announced on October 20, without any motivation. On that day, disregarding additional arguments prepared by Yeliashkevych and Shyshkin, the HCJ prepared another “surprise”: the Supreme Court judge Oleksandr Volkov. “He is the well-known judge who won a case against Ukraine at the European court after his unlawful dismissal (now he is reinstated in office),” shares Yeliashkevych. “But at the HCJ sitting he was purposefully used to defend the illegal and immoral actions of the HCJ members. In fact, he unlawfully assumed the function of interpreter of the ruling in his case, during the consideration of a question to which he was in no way linked. Just like he himself said later, he had not a slightest idea who judge Melnyk was, what he was accused of, and which cases he had considered. Volkov was summoned by the HCJ, so that the latter could manipulate the public opinion in questions concerning Ukraine’s omission to fulfill its international obligations in high-profile criminal cases. And I am sure that Volkov was perfectly aware of his role in that show. However, this will not help the High Council of Justice or those who commissioned the protection of Melnyk, the judge who worked for the Kuchma family.”

Despite exhaustive answers provided by Podolsky’s camp, the HCJ anyway announced that his appeal and other attached documents would be handed over to the High Qualification Commission of the Judges of Ukraine. Importantly, Prosecutor General Viktor Shokin and Minister of Justice Pavlo Petrenko are also members of the disciplinary section and the High Council of Justice. However, they were never present at the sittings were Melnyk’s case was considered.

“It can be assumed that the case of dismissal of judge Melnyk has to do not so much with law as with politics,” says Shyshkin. “If the case of dismissing judge Melnyk for breach of oath, i.e., gross violation of legal requirements while considering the case of complainant Yeliashkevych, is brought to a logical conclusion, and the judge is dismissed for the violations listed in Kuzmin’s statement, then automatically ensues the case of the accused Ministry of Interior’s General Oleksii Pukach (victims: Gongadze and Podolsky), in hearing of which Melnyk violated the law. Consequently, there will be ground to investigate the affairs of Kuchma and Co., and it, in its turn, touches Poroshenko who, due to circumstances unknown (or just well-known) to the public is trying to politically reanimate Kuchma through the latter’s involvement in the so-called Minsk talks.”

“I believe that the HCJ must also be reformed as part of the reform of the judicial branch. We know who it consists of: judges, prosecutors, ministers, and lawyers. I am convinced that the High Council of Justice must be comprised of retired judges. Then it will not be engaged and can give professional evaluation of the people who administer justice,” said Oleh Bereziuk, president of the Ukrainian Legal Society.

WHY PUKACH’S TRIAL IS PROCRASTINATED AT THE KYIV COURT OF APPEALS?

At the same time a long-time confrontation is unfolding at the Kyiv Court of Appeal, where Pukach’s case is being considered. The most recent sitting was held on October 21. “At last, after a long pause due to an illness, Pukach’s lawyer appeared, Hryhorii Demydenko,” says Yeliashkevych. “He submitted the necessary documents to the panel of judges. Accordingly, Herasko, another lawyer appointed during Demydenko’s illness, withdrew. In the sitting Demydenko submitted several motions, the most important being the one to challenge the panel of judges. Although only a few examples are adduced of the numerous violations, systematically and deliberately committed by judge Hladii and his colleagues, they would provide sufficient grounds to grant the request. After a prolonged conference the judges refuse to withdraw, which came as no surprise. And this was not the first time. Unfortunately, Podolsky and his lawyers did not take part in the sitting again, due to the unlawful ruling of August 11 to remove Podolsky from the trial. At the end of the sitting the panel announced a break until Monday, in connection with Demydenko’s appendices to his appellation.”

In the opinion of the panel, it is Podolsky and his representatives who procrastinate the process and prevent the judges from considering the essence of the matter. “The slow process is caused by the unlawful actions of the panel of judges, who keep passing decisions which agitate society and infringe on the rights of the complainant Podolsky and his representatives,” insists Yeliashkevych. “For example, first the judges illegally declared closed trial, and then took six months to consider making it an open one. It is also related to their reluctance to follow procedural norms and consider important motions directly related to this case. In particular, the summoning of important witnesses, the revealing of pressurizing Pukach and members of his family, and many other things which result in hand-made conflicts. The most recent month-long recess is hard to account for, too: Demydenko’s sick leave ended on September 21.”

IS THE PROSECUTOR GENERAL’S OFFICE PERSECUTING MELNYCHENKO INSTEAD OF THE INSTIGATORS?

The third direction is the Prosecutor General’s Office. Recently Mykola Melnychenko, former Major at the Administration of State Guard, published a court ruling on Facebook, which ordered searches at his home in the village of Kriachky, Kyiv oblast.

According to the published document, law enforcers were looking for documents “containing information on violent change and overthrowing of constitutional order in Ukraine (plans, schemes, rough copies, etc.); information carriers with audio and video recordings containing information about breach of confidentiality and high treason.”

The court ruling also says that Melnychenko, “being an officer charged with operative and technical examination of top security premises – the office of the President of Ukraine – from February till September 2000, being in a criminal complot with persons not yet established by investigation, aiming at a violent change and overthrow of constitutional order in Ukraine, performed illegal tapping of the office of the President of Ukraine by making audio recordings of conversations of the head of state with other persons.”

Of course, opinions of Melnychenko may vary, what he did could be interpreted in no unambiguous terms. But the policies of the Prosecutor General’s Office suggest that it is anxious to look for some other aspects in the investigation instead of looking into the organization of the crimes against Gongadze and Podolsky (by the way, the latter still has not been acknowledged as the victim in the case).

“This is political persecution, because Melnychenko still holds his ground, in particular, he insists on Kuchma’s being guilty of a number of high-profile assassinations, Gongadze being but one instance,” said MP Kuprii in his commentary to The Day, “A lack of objectivity in the trial does not allow to make any progress in the identification of the individuals who commissioned the killing of Gongadze. They will keep pressurizing Melnychenko till all the i’s are dotted in this case. Petro Poroshenko chose not to prosecute his former mentor, Leonid Kuchma. They have a deal. Recently, Poroshenko has been demonstrating top class skills when it comes to making deals with Kuchma, Putin, or oligarchs. It clearly conflicts with the ideals, for which lives were lost in Euromaidan and in eastern Ukraine.”

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The next sitting of the Kyiv Court of Appeals was scheduled for October 26. We must not lose vigilance. We need to keep all aspects of this case under close control. While society is busy with other things, virtually surviving and resisting Russia’s aggression, our leaders often act cynically and bold-facedly. Yet practice shows that leaders, who were too timid to bring high-profile cases to a conclusion, fell into their own political trap.