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6 October, 2011  ▪  Спілкувалася: Alla Lazareva

The Collapse of Justice

Valentyna Telychenko: “We are dangerously close to the critical line, when because of the distrust of the judiciary, disputes will be not be resolved in the courts”

Lawyer Valentyna Telychenko is known as the advocate of Myroslava Gongadze in the murder case of her husband, journalist Georgiy Gongadze. Recently, Ms. Telychenko has taken on the role of Yuriy Lutsenko’s and Yulia Tymoshenko’s advocate in the European Court of Human Rights.

In addition to her legal practice, Ms. Telychenko has extensive experience in human rights campaigns and public activity ranging from membership in the Ukrainian Helsinki Human Rights Union (UHHRU) during the perestroika of the 1980s, to participation in the updating of election legislation. She has written numerous analytical reports on judicial reform, human rights and the rule of law in Ukraine. In her interview for The Ukrainian Week Ms. Telychenko spoke about the prospects of the proceedings in the cases of Oleksiy Pukach, Gongadze’s killer and Ukraine’s ex-President, Leonid Kuchma, as well as the impact of recent judiciary reform on honest judges who still exist despite all the odds.

THE CASE OF GONGADZE’S KILLER

U.W.: How would you qualify the actions of Oleksiy Pukach, Lieutenant General of the Interior Ministry, who admitted to having killed Georgiy Gongadze? Do you see him as one of the killers or an organizer of the crime?

Oleksiy Pukach organized the murder and personally executed the order to kill Gongadze. He was the one who planned and thought everything through in advance. He had enough time to think about it, he knew what the reward to expect for this. He made a conscious decision – to kill the man. This was not his first crime. In June 2000, Pukach, with the help of two policemen reporting to him, illegally arrested Oleksiy Podolskiy, another journalist, drove him into a forest, beat him and left him to his fate there at night. This crime was also organized and performed by him personally.  

U.W.: Do you mean that this was an order from “above” or was it Mr. Pukach’s initiative?

The conviction states that he performed both crimes on the orders of Yuriy Kravchenko and Leonid Kuchma. In other words, according to investigation results, the two of them should be considered the paymasters. But it would be premature to presume that this scenario will withstand the test of the trial. Moreover, the verdict in the Pukach case will not unveil those who ordered the murder because their actions will not be analyzed in the given proceedings. There is only one accused – Oleksiy Pukach, and everyone else is beyond the reach of the judiciary. Their cases fall under separate proceedings. The only thing clear today is that Mr. Pukach will not escape punishment as the verdicts on both episodes - the murder of Georgiy Gongadze and the beating of Oleksiy Podolsky – have recently come into effect. An open question is whether the cases on those who ordered the murder will reach the court. To this day, the Prosecutor General has been doing everything in his power for these people to avoid punishment.  

U.W.: Oleksiy Pukach said that former President Kuchma and Volodymyr Lytvyn, his Chief-of-Staff, ordered the murder of Georgiy Gongadze. But he also claimed that by killing the journalist, he supposedly saved the country from an overthrow. What is the truth? Can you trust his testimony? What game could he be playing and whose scenario could this be?

Oleksiy Pukach gives the impression of being dull-witted and dumb during interrogations in court. His answers are not specific and unclear. He talks about a lot of things that are not relevant to the circumstances of the crime thus attempting to evade direct answers. He mentioned several times in court that “Georgiy Gongadze was a spy and was plotting an overthrow.” This is his way of justifying his actions and explaining his motives.

Meanwhile, all his colleagues describe Mr. Pukach as a highly qualified professional. He holds a degree in law and the title of Lieutenant General in the police force. A General who used to run criminal intelligence at the Ministry of Interior cannot but know that it is the SBU that is the authority responsible for spies, not his agency, and that an order to kill a person is definitely illegal. The investigation has just begun and the interrogation of Pukach is not over yet. So, I can’t give you a comprehensive analysis of his testimony at this point. Clearly, he is doing his best to not get a life sentence. It was the reason why he agreed to collaborate with the government the day after his arrest in July 2009.  As a result, initially he stayed at the SBU detention center, which actually does not exist de jure, until the verdict is delivered, not at Lukianivka detention center. The difference in the level of comfort at the two places is striking. The decision to keep Pukach at a legally non-existent detention center, officially known as the SBU Department for Ensuring Pre-Trial Investigation was personally made by Pechersk Court Judge, Inna Otrosh. I believe she did this intentionally, exceeding her powers. It is the relevant local body of the State Penitentiary System that decides where a person is to be detained, not the court. This SBU detention center is essentially not a registered facility, which is not designated to detain people. Staying there is not only comfortable for Pukach, it also allows him to secretly communicate with the representatives of the government involved in the case.

U.W.: Why has this case been classified as secret?

Only a small portion of the materials has been classified, which unfortunately includes the charge sheet. However, the judges regard the existence of a few classified volumes in the case as grounds to hold the trial behind closed doors. Apparently, somebody is exerting pressure on them and forcing them to hide the flaws of the pre-trial investigation. Of course, if journalists were present at the hearing, the fact that the court is turning a blind eye to the inappropriateness of the investigator would have been noticed by everyone. They are simply afraid of looking like their colleague Kireev (the judge in Ms. Tymoshenko’s case – ed.), so prefer to hide behind closed doors. By doing so, they are also violating the rights of both the victims and the public to see an open process. Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms qualifies this as an unfair trial.

U.W.: Is it possible to assume that Russian enforcement agencies were somehow involved in the murder of Gongadze? Leonid Kuchma claimed this case was “inspired by a foreign intelligence service”. Has this been mentioned in court?

Indeed, Russian enforcement agencies could have been involved in the murder but the conviction does not mention any foreign factors in the case. I must admit that investigators have deliberately failed to notice or check the scenario regarding enforcement agencies. The fact that the proceedings are so secretive basically means that the judges will refuse to interrogate witnesses not listed in the state charges in order to prevent any surprises.

U.W.: Who of the witnesses in the Pukach case has been interrogated? What are the possible conclusions?

The witnesses have not been interrogated yet. Even the interrogation of the defendant has not been completed. The prosecuting attorney has listed 13 people as witnesses, of which only one woman has never worked for the police. No witnesses have been listed who could talk about the circumstances surrounding the ordering of the murder, including those named by Pukach during his interrogation. People who knew back in 2000 that Pukach had killed the journalist (he named them) are not on the witness list either, neither are the people who helped to release Pukach from custody and evade criminal liability later in 2003. With such a list of witnesses and evidence, verifying his testimony thoroughly and confirming the motives of the crime stated by the prosecuting attorney will be impossible. This will force the victims to involve additional witnesses through their representatives.

THE KUCHMA CASE

U.W.: Is there any chance of the diligent consideration and fair verdict in the case against ex-President Leonid Kuchma?

After last year’s judiciary reform, which was heavily criticized by the Venice Commission, the judiciary in Ukraine lost all vestige of independence. The Supreme Council of Justice is supposed to be an efficient tool for purging the ranks of judges, but it has turned into an instrument of blackmail and pressure against them. Moreover, the outcome of court proceedings largely depends on the efficiency of the pre-trial investigation. I have already studied the materials in the case against Mr. Kuchma. All I can say, is that the pre-trial investigation has not been thorough enough. We filed a petition regarding this but it was turned down. Part of the petition was to initiate criminal cases against Volodymyr Lytvyn, Leonid Derkach - the ex-Chief of the SBU and several other officials. The answer essentially meant that the court refused to start the case. But the investigator did not risk issuing an official refusal. We have already filed an appeal against his actions to the Pechersk District Court for the second time. In October last year, the Prosecutor General’s Office overturned the decision of one of its investigators on the refusal to initiate a case against Messrs. Kuchma, Lytvyn, Derkach and Eduard Fere (Colonel General of the Interior Ministry, considered to be one of the key witnesses in the Gongadze case. The Prosecutor General’s Office had sent numerous requests summoning him to an interrogation but Mr. Fere stayed in coma until his death in 2009 – ed.). As far as ex-President Kuchma is concerned, the investigator has already made a decision and has even presented the charges. Moreover, the pre-trial investigation is over. As for the rest, for over a year now, the prosecution has been unable to determine elements of a crime in the actions of the above mentioned people already even though the law only allows 10 days for this. Given the power of Prosecutor General’s representatives to influence the judges in the Supreme Council of Justice, the outcome of any criminal proceedings, particularly those involving Kuchma, largely depends on the position and the intentions of Prosecutor General’s Office of Ukraine.

THE PROSPECTS FOR TYMOSHENKO AND LUTSENKO

U.W.: At one point, Yuriy Lutsenko claimed that his case was bursting at the seams. Is this true? Ms. Tymoshenko’s lawyers say the same things about her case.

If the court were independent it would have to admit that both convictions are groundless. The same thing would happen to several other cases, including the one against Valeriy Ivashchenko, ex-Acting Minister of Defense. The actions listed in the convictions bear no criminal elements. Some political decisions have been made that can only lead to political liability. Perhaps, there were some violations of financial discipline. But it would be wrong to qualify these actions as corruption, since the fact of personal enrichment have not been found in any of the above- mentioned cases.

U.W.: How can Mr. Lutsenko’s ill health affect the proceedings?

Apparently, the right of Ms. Tymoshenko, Mr. Lutsenko and Mr. Ivashchenko to medical care has been violated. Art. 6 of the Basic Legislation On Health Care entitles every citizen to medical help and the free choice of a doctor. They have been denied such choice and in some cases, this has already resulted in a serious deterioration in physical health. They cannot trust the doctors chosen by those in power or the judiciary. This is because the former has sent people who will carry out their orders. The preliminary diagnosis for Yuriy Lutsenko is cirrhosis of the liver. Such a diagnosis calls for round the clock care. As soon as this diagnosis is confirmed, the court will have to decide on changing a preventive measure other than imprisonment. The European Court qualifies inadequate medical care for someone in detention as torture.

U.W.: Mr. Lutsenko’s appeal is under extraordinary consideration at the European Court of Human Rights. If Strasbourg rules that the preventive detention of the former minister is a violation of the law, which options does this provide for him as well as his protection in Ukraine?

If such a decision is made, Mr. Lutsenko will be able to apply to the Supreme Court of Ukraine, which would examine all previous decisions regarding his arrest him and overturn them

U.W.: Yulia Tymoshenko has also appealed to the European Court. How soon can she expect an answer? Plaintiffs sometimes face a wait of months and even years…

The process will still take more than six months, even if the Court applies an emergency procedure.

U.W.: In your view, what are Ms. Tymoshenko’s chances to appeal against the verdict that is probably going to be made in the next few days?

Her chances to overturn the verdict through appeal are next to zero, because the judges of the relevant court are no more independent than any judge of a district court. The cassation procedure is more promising. A lot will depend on the specific persons who will be reviewing the appeal. If they are judges who have no concerns about their own past or that of their family members, they will not be afraid of being blackmailed, if they are not counting on getting housing or any other benefits anytime soon, so their dependence on the government will be minimal.

U.W.: Are there such judges in Ukraine?

Yes. Moreover, they realize that governments change. Today, the people in power have ordered Tymoshenko’s arrest, and tomorrow this will be done to them for executing the order against her. Therefore, they should not leave Kireev’s verdict in effect. With such a pile of violations during proceedings in the Pechersk Court, especially given the extent to which the charges are groundless, the verdict must be cancelled. Clearly, Judge Rodion Kireev realizes that a guilty verdict is impossible in this case. But chances are few that he will correct his mistakes on his own, because he has gone too far in his conflict with Tymoshenko. After all, he is very weak in comparison to the system.

U.W.: How justified, in legal terms, are the charges of “exceeding powers” against Tymoshenko regarding the gas deals? The deal was struck between two entities, Naftogaz and Gazprom, not the governments of Ukraine and Russia. Can the ex-Premier be liable in any way other than politically in this case?

Yulia Tymoshenko is accused of instructing the Naftogaz management to sign the deals that set a specific gas price (the instruction was referred to as the “directive from the Prime-Minister). Although Naftogaz is a state-owned company, its officials are not required to execute the Premier’s instructions but the Premier can still give them. Ms. Tymoshenko undertook political responsibility for a tough economic decision and the managers fulfilled the instruction and signed the deals, since the decision was made by the Premier. Therefore, speaking of exceeding powers is hardly justified in this case. Moreover, the conviction does not list any motives to confirm the supposedly criminal actions of Ms. Tymoshenko, nor has the court proven any. Her reasoning was the prospect of disrupted gas supply to Europe if no agreement had been signed. This means there is neither abuse of powers, nor the elements of a crime in the case.

U.W.: Some believe that Ukraine will sink into authoritarianism if the EU does not sign the Association Agreement as a result of political persecution. Do you agree?

It’s not only Tymoshenko or Lutsenko who need to be rescued today; it’s the whole country that has to be rescued. Europe is forced to find the right balance. On the one hand, it does not need a Ukraine that does not share Western democratic values. On the other hand, though, Ukraine will fall to the Kremlin’s feet if Europe rejects it. An Associated Partnership between Kyiv and the EU generates additional, more powerful, leverage for the EU in Ukraine including in terms of protecting human rights. As far as I understand, signing the agreement as soon as possible is in Ukraine’s interests.

THE LIMIT

U.W.: Ukraine is among the top five countries in terms of appeals to the European Court of Human Rights. Why is this so? Ukrainians don’t trust the justice in their country, find no truth at home or, as one diplomat once said, “they have realized where appeals can be filed now”?

I think they can’t find the truth they seek in Ukraine. But as long as they seek the protection of the court, even the European Court, it is possible to sleep peacefully. Once disenchantment and frustration with the judiciary reaches a critical point, conflicts will be solved outside the courts. This is dangerous. We’ve come too close to this point

U.W.: Why has Ukraine failed to establish an effective judiciary system that the government would not be able to manipulate over its 20 years of independence?

We haven’t reached the bottom of this abyss, which will teach us that the law and independent courts, however uncomfortable they may be, are better than the willfulness of those who are stronger. The politics of today are also part of falling into this abyss. Everybody has to realize that neither power nor force is eternal, while independent courts and the law are the only safety net for the weaker in the country. This is what must become the motivation for planning true judiciary reform rather than political or private interests, as has been the case in the recent so-called judiciary reform. It corrected individual elements, yet left the key problem, i.e. the lack of independent judges, unresolved. Thus, the judiciary today is virtually an infallible instrument in the government’s hands. There can be no talk of human rights in a situation like this. Nobody violates human rights as long as those in power don’t need or want to do so. 


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