Brian Bon­ner: Jus­tice de­layed, jus­tice de­nied

Kyiv Post Legal Quarterly - - Contents - By Brian Bon­ner [email protected]

OnSept. 16, 2015, 15 years af­ter the crime, the per­son or per­sons who or­dered the mur­der of Ukrainian jour­nal­ist Ge­orgiy Gon­gadze may be home free. While in most civ­i­lized na­tions, there is no statute of lim­i­ta­tions for mur­der, that limit is only 15 years in Ukraine. Some ex­cep­tions ap­ply, but the lawyer rep­re­sent­ing Gon­gadze’s widow, Va­len­tyna Te­ly­chenko, is not sure whether this mur­der would qual­ify.

No case in Ukraine’s in­de­pen­dent history more fa­mously il­lus­trates the ex­tent to which Ukraine’s crim­i­nal jus­tice sys­tem is bro­ken than the de­lib­er­ately flubbed in­ves­ti­ga­tion into who or­dered the Sept. 16, 2000 killing of the muck­rak­ing jour­nal­ist.

This case has had it all, in­clud­ing tam­per­ing with the crime scene, ob­struc­tion of jus­tice, mys­te­ri­ous deaths of wit­nesses, au­dio record­ings im­pli­cat­ing for­mer Pres­i­dent Leonid Kuchma and his top aides and, con­versely, sug­ges­tions of Krem­lin in­volve­ment to set up Kuchma with the po­lit­i­cal aim of pro­vok­ing the West to cut their ties with him.

And the case is still on­go­ing.

The high­est-level per­son con­victed in the crime, for­mer po­lice Gen. Olek­siy Pukach, is still ap­peal­ing his life sen­tence.

Here’s a run­down of only a small frac­tion of the­o­ries and ab­sur­di­ties, at least from my point of view, in the case af­ter a con­ver­sa­tion with Te­ly­chenko. She, in­ci­den­tally, re­mains bound by con­fi­den­tial­ity from dis­cussing some as­pects of the case be­cause she is an of­fi­cial part of the in­ves­ti­ga­tion. (This is another per­verse way to shut up peo­ple in crim­i­nal cases in Ukraine: Make them part of the case.)

The guilty ver­dict against Pukach is not in force – Much to my sur­prise, while Pukach was ar­rested in 2009 and con­victed in 2013, the ver­dict is still not in ef­fect – and won’t be un­til the ap­peals court says so. It hasn’t ruled yet. In­sane. He re­mains, how­ever, jailed in a Se­cu­rity Ser­vice of Ukraine jail, de­scribed to me as a coun­try club of pris­ons.

The record­ings im­pli­cat­ing Kuchma in or­der­ing the mur­der can­not be used as ev­i­dence be­cause pros­e­cu­tors don’t have the orig­i­nals – This is the most ab­surd con­tention I have heard, re­peated over and over through

the years as if a mantra. Look, whether the record­ings are orig­i­nal or not, or have been doc­tored or not, should do noth­ing to dam­age the in­ves­ti­ga­tion. Here’s why: Com­pe­tent in­ves­ti­ga­tors would lis­ten to the record­ings, sub­poena Kuchma’s sched­ule, ver­ify whether the per­sons in the record­ings ac­tu­ally held those meet­ings with Kuchma, study what events cor­rob­o­rated those talks and then of­fer the par­tic­i­pants lim­ited im­mu­nity from pros­e­cu­tion in ex­change for truth­ful tes­ti­mony against Kuchma or who­ever or­dered the mur­der.

Kuchma, who claims he is in­no­cent, only wants to clear his name – Com­plete and to­tal hog­wash. The case has been marred by in­com­pe­tence and, worse, ob­struc­tion from the start, with a pa­rade of chang­ing in­ves­ti­ga­tors and pros­e­cu­tors who spun fan­ci­ful tales about who might be re­spon­si­ble – in­clud­ing the dead sus­pects Cy­clops and Sailor Boy. Ob­struc­tion of jus­tice is ev­i­dence of guilt. And Kuchma was the chief ob­struc­tion­ist.

Why Kuchma doesn’t in­sist on a trial to clear his name – “You know what Kuchma is afraid of? A Ukrainian court is not an in­de­pen­dent court. You do not know who will bribe the court and how it will con­duct its ses­sions,” Te­ly­chenko said.

Kuchma was pop­u­lar, hav­ing just been re-elected in 1999, and had no rea­son to kill Gon­gadze – Again, com­plete and to­tal non­sense. Kuchma ran the na­tion into the ground, ruled as a dic­ta­tor and en­riched se­lected oli­garchs around him, the fa­vorite be­ing his son-in­law Vic­tor Pinchuk, who be­came a bil­lion­aire un­der daddy-in-law’s reign of er­ror. Kuchma is a rep­re­hen­si­ble fig­ure de­void of con­science and one of the big­gest rea­sons why Ukraine is in its piti­ful state to­day. While the Baltics and Poland were do­ing their home­work to get into NATO and the Euro­pean Union, as well as rais­ing stan­dards of liv­ing, Kuchma was god­fa­ther of a crim­i­nal state, con­tent to treat 45 mil­lion peo­ple like cat­tle. He flirted with a third term un­til Ukraini­ans told him to for­get it, in no un­cer­tain terms. As for his “pop­u­lar­ity,” Kuchma con­trolled the media and set up a con­test be­tween him­self and the hap­less Com­mu­nist Party leader, Petro Sy­mo­nenko, in the 1999 elec­tion. Still, Kuchma felt com­pelled to cheat to win. Gon­gadze was mur­dered as a sym­bol of in­de­pen­dent think­ing and in­de­pen­dence of media – in Kuchma’s world, such im­pu­dence could not be tol­er­ated. Even if he did not or­der Gon­gadze’s mur­der, ev­i­dence shows he or­dered many other crimes, in­clud­ing po­lice sur­veil­lance of dozens of en­e­mies.

So, it’s ob­vi­ous that Kuchma or­dered the mur­der? – I would have said yes un­til re­cently. Af­ter all, the chain of com­mand from the con­victed po­lice of­fi­cers to Pukach to then-in­te­rior Min­is­ter Yuriy Kravchenko to Kuchma is pretty clear and is cor­rob­o­rated by other ev­i­dence, in­clud­ing po­lice tail­ing Gon­gadze and events de­scribed on the record­ings that hap­pened in real life. How­ever, the most pop­u­lar the­ory now is that the Krem­lin did it, through its agents who in­fil­trated high po­si­tions of Ukrainian law en­force­ment. In­con­ve­niently, those sus­pected Krem­lin agents – Ed­uard Fere and Yuriy De­gaev – are dead. Fere died in 2009 af­ter six years in a coma and De­gaev, in 2003. Te­ly­chenko be­lieves they were poi­soned to death.

Why is the case tak­ing so long? – There are three big the­o­ries. One is that politi­cians and pros­e­cu­tors wanted to keep ex­tract­ing bribes from Pinchuk and Kuchma. I be­lieve that – and fugi­tive ex-pros­e­cu­tor Re­nat Kuzmin of the Pres­i­dent Vik­tor Yanukovych era poured fuel on that the­ory by ac­cus­ing Kuchma of giv­ing a $1 bil­lion bribe to close the case. Another the­ory is that Kuchma has ef­fec­tive im­mu­nity from pros­e­cu­tion. I be­lieve that one also. A third one is that Ukraine knew Rus­sian agents were in­volved, but didn’t want to cre­ate a public rift with its Slavic neigh­bor by pub­licly re­leas­ing ev­i­dence to sup­port this the­ory. Now that Rus­sia is an en­emy of Ukraine, we may yet see this be­come the of­fi­cial ver­sion. It also fits with a long line of sus­pected Krem­lin at­tempts to con­trol Ukraine, in­clud­ing through the dioxin poi­son­ing of Pres­i­dent Vik­tor Yushchenko and the sub­ver­sion of Yanukovych. In light of to­day’s war, and the West’s iso­la­tion of Kuchma af­ter the Gon­gadze mur­der, the Krem­lin did-it-the­ory looks more per­sua­sive all the time.

In­te­rior Min­is­ter Yuriy Kravchenko’s death in 2005 – The vic­tim suc­cumbed to two gun­shot wounds to the head in 2005 on the same day that he was pub­licly known to be sched­uled to give tes­ti­mony in the case. His death, prob­a­bly mur­der but ruled sui­cide, is one of many cases in which law en­force­ment de­stroys cases by pub­licly out­ing key wit­nesses – invit­ing as­sas­si­na­tions. This sub­ver­sion con­tin­ues to this day.

Af­ter years of stops and starts, Te­ly­chenko says a fi­nal of­fi­cial ver­sion of the in­ves­ti­ga­tion may be re­leased pub­licly on the 15th an­niver­sary of the mur­der.

When asked what she’s cer­tain about in­volv­ing the case, she replied: “Kuchma will not go to prison. I can be sure about that.”

For­mer po­lice gen­eral Olek­siy Pukach is ap­peal­ing his life in prison sen­tence for the Sept. 16, 2000 mur­der of jour­nal­ist Ge­orgiy Gon­gadze. The case has dragged on for 15 years be­cause, crit­ics say, po­lit­i­cal lead­ers did not want the crim­i­nal jus­tice...

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