Will the High Council of Justice seize the opportunity it has got?

The legal battle over the high-profile Gongadze-Podolsky case has moved from the Kyiv Court of Appeal to the High Council of Justice (HCJ). Its disciplinary section will meet on October 6 to deliberate on the results of investigations conducted by members of the HCJ. Note that one of them was held at the request of Oleksii Podolsky, made on May 30, 2013 and concerning judge of the Pechersk District Court of Kyiv Andrii Melnyk. We can see thus that the authorities have delayed and tried to avoid consideration, both under the former government and the present one.

We do not know what exactly will be considered by the disciplinary section of the HCJ, for it was then member of the HCJ Renat Kuzmin who submitted the proposal on the case, but it is conspicuously absent from the agenda, even though other proposals of his are there. Incidentally, the disciplinary section consists of nine people, including Prosecutor General Viktor Shokin and Justice Minister Pavlo Petrenko. Rapporteur on Podolsky’s request is member of the Supreme Council of Justice Iryna Mamontova.

Addressing Kuzmin as a member of the HCJ, victim in the Gongadze-Podolsky case Podolsky wrote on May 30, 2013: “I have publicly and officially denounced the abuses of office committed by deputy chairman of the Pechersk District Court of Kyiv Andrii Melnyk, including rigging the trial and forging the sentence in the case of attempt on the life of MP Oleksandr Yelyashkevych [the trial did not even take place, the victim did not know of it, and suspect Vitalii Vorobei admitted later in 2006 that he had not committed the crime, but confessed his guilt under duress [We covered it in more detail in the article “Impunity on Order,” Den, November 24, 2011. – Author]. I also revealed a brutal sabotage of the Constitution, which this figure committed when he brazenly, and most importantly, criminally, prevented the victim from exercising his right to appeal. I am sure you are well aware that legal nihilism and criminal activities of this false judge are directly related to the political, property, and criminal interests of the former president of Ukraine Leonid Kuchma and his family... I strongly insist that the authorities take all necessary measures to strip Melnyk of his rank and dismiss him from his office as a judge at the initiative of the High Council of Justice of Ukraine in accordance with Article 32 of the Law of Ukraine ‘On the High Council of Justice,’ dealing with violation of the oath of office, which should be followed then by criminal prosecution of this man who has dishonored the Ukrainian law.”

However, we are not talking only about the Yelyashkevych case here, which is a flagrant example of the total denial of justice. Judge Melnyk left his mark on another high-profile Gongadze-Podolsky case. He presided over the first instance trial of Oleksii Pukach, who was the chief perpetrator of the murder of journalist Gongadze and the crime against Podolsky. According to Pukach himself, Melnyk allowed the guards to let prosecutors and Myroslava Gongadze’s lawyer Valentyna Telychenko to enter his cage and blackmail and threaten him, urging him to mention in his testimony not Leonid Kuchma and Volodymyr Lytvyn, but rather Yevhen Marchuk and Oleksandr Moroz. Of course, Pukach was the cruel court executioner under Kuchma, but his statements had to be checked at least. However, despite the fact that victim Podolsky and MP Vitalii Kuprii made requests to this end, the Prosecutor General’s Office has outright refused to do so, and even illegally failed to enter the offense on the Unified Register of Pre-Trial Investigations.

Perhaps not everyone knows it yet, but all these issues, long ignored by the authorities in Ukraine, enjoy serious international attention. As many as six months ago (April 10, 2015), Steve Cohen, a US congressman and member of the US Helsinki Commission, wrote a letter to President of Ukraine Petro Poroshenko.

“As a United States Member of Congress who sits on the Commission on Security and Cooperation in Europe (the U.S. Helsinki Commission), I am called upon to monitor human rights violations committed abroad,” his message reads in part. “Over the past two years, I have become closely familiar with three high profile criminal cases in Ukraine: the violent attack on People’s Deputy Oleksandr Yelyashkevych, the abduction of journalist Oleksii Podolsky and the brutal murder of journalist Georgy Gongadze. I am concerned that in each of these cases, it does not appear that justice has been carried out to the fullest extent of the law. … It is my understanding that on numerous occasions, the Parliamentary Assembly of the Council of Europe has called for a full investigation of the attack on Mr. Yelyashkevych. It has also come to my attention that a special committee of Verkhovna Rada of the third and fourth convocations came to the unanimous conclusion that former President Leonid Kuchma had ordered the attack on Mr. Yelyashkevych. I am also aware that on February 14, 2014, the High Council of Justice of Ukraine charged Judge Andriy Melnyk, the presiding judge over each of the aforementioned criminal cases, with ‘willful and malicious violation of the judge’s oath’ in the case of the attempted murder of Oleksandr Yelyashkevych and issued a formal charge for his dismissal. It is my hope that that High Council of Justice will give this important case due attention and consideration without further delay.”

However, if there were no further delays and attempts to wait for the right moment, the present Ukrainian authorities would have gone against the time-honored tradition of their predecessors, known for procrastinating and unwillingness to investigate the case. “The fact that Judge Melnyk’s case will be considered on October 6 was not officially communicated to Podolsky, the applicant in the case,” Yelyashkevych told The Day. “They did so despite the fact that I lodged a formal request with the HCJ back in June about the need for consideration of the high-profile cases with our participation and providing us with timely notices of the dates and places of the hearings. By the way, I had Cohen’s letter to Petro Poroshenko attached to my request. Still, none of the current members of the HCJ ever contacted me or Podolsky.”

It should be noted that the last-appointed of the current members of the HCJ got into that body just a few months ago. What is the issue with the body? “Unfortunately, whoever its members are, it is an ineffective body,” president of the Ukrainian Law Society Oleh Bereziuk commented for The Day. “The HCJ still does not perform its functions, for it is a typical bureaucratic authority. Whoever holds power, the HCJ is still controlled from the top, it was this way in the days of Kuchma, and it is like that today as well. It came due to the fact that from the very beginning, the ideology behind the HCJ’s appointment was wrong. I think that the judicial reform should involve reforming the HCJ too. We know who sits on it now – judges, prosecutors, ministers, and lawyers. I am convinced that the HCJ should consist of retired judges, which would prevent bias and allow it to give a professional assessment of the people who administer justice.”

The present authorities’ attitude towards these high-profile cases is evidenced by the following example. Cohen wrote in the above-quoted letter to Poroshenko: “While your predecessor never took the opportunity to meet with Mr. Yelyashkevych to discuss his case [neither Viktor Yanukovych nor Oleksandr Turchynov did so, even though Cohen addressed both during their time in office. – Author], I urge you to meet with him to discuss the attack, the methodology by which the investigation was conducted and the actions taken to prosecute those responsible. I have met with Mr. Yelyashkevych in my Washington, D.C. office and believe that a meeting between you and he would make great strides toward reconciliation in this matter, which has great civil and human rights significance.”

However, Cohen’s call has been ignored as well, as seen from the president’s continued failure to meet with Yelyashkevych. “Under Yanukovych, Andrii Portnov’s fake justice system at least went through the motions of legality in high-profile cases that were monitored by international institutions,” Yelyashkevych commented. “Now, under Poroshenko, and we know the damning statements made regarding deputy head of the Presidential Administration Oleksii Filatov by former chairman of the Kyiv Court of Appeal Anton Chernushenko, they cynically ignore all formal legal norms and do not even try to create a simulacrum of justice in all matters relating to Kuchma. They brazenly think that everyone will ignore such ‘trifles’ as outright mockery of the victims...”

The October 6 hearing at the HCJ is actually a chance for it to make a positive contribution to the Gongadze-Podolsky case and demonstrate the quality of this body’s work under its new membership, appointed following the Euromaidan. It is important to seize this chance. “Judge Melnyk was a key element in rigging high-profile criminal cases, which has allowed Kuchma to still remain unpunished despite abundant evidence of his crimes,” Yelyashkevych stressed. “We need powerful media coverage of such arbitrariness and cynical disregard which the HCJ has shown for Ukraine’s international commitments on high-profile criminal cases. Judge Melnyk’s case, which they deliberately try not to attract public attention to, is an important test for the newly-appointed HCJ, which will clarify the current state of the judicial system.”