The Kyiv Court of Appeal has upheld the Pechersk District Court ruling that confirmed the legitimacy of launching a criminal case against former public security Major Mykola Melnychenko. It will be recalled that on December 26, 2011, the Pechersk Court ruled that the Prosecutor General’s Office had legitimately instituted criminal proceedings against Melnychenko in 2001. Melnychenko’s lawyers appealed against this court ruling. Mykola Melnychenko’s defense attorney Mykola NEDILKO comments on the situation.
“There were two judges on the Court of Appeal panel that was reviewing the appeals from us, Valentyna Telychenko, and Oleksii Podolsky to the Prosecutor General’s Office in the Kuchma case: Presiding Justice Lukianets and Justice Rybak. We immediately challenged both judges. The challenge was rejected. The grounds for our challenge was that they had already taken part in considering appeals in the Kuchma case which examined the legitimacy or illegitimacy of Major Melnychenko’s actions, including the way he did the recordings. They had already formed an opinion that Major Melnychenko had taken an illegal action and his tapes could not be considered trustworthy evidence to bring a charge against Kuchma. So we think that they will also stick to the same opinion when examining this appeal and, as a result, will throw it out. If they had allowed our appeal in the Melnychenko case, this would have meant their conclusions ran counter to the ones they arrived at when examining the Kuchma case appeals.
“We also drew the court’s attention to gross violations of the Criminal and Procedural Law as well as to the fact that the criminal case materials were short of the tapes for which Melnychenko was being prosecuted. Besides, we told the court that the Constitutional Court’s ruling on the interpretation of Part 2, Article 62, Constitution of Ukraine, i.e., interpretation of the term ‘unlawfully found evidence,’ was applied in the Kuchma case by an inferior court, i.e., the Pechersk Court, and the appellate court had ruled that this application was legitimate. Another reason why criminal proceedings were instituted against Melnychenko in the same case was the tapes he had recorded, which, unfortunately, were missing from the criminal case materials. These disks are absent. Instead, there allegedly are the minutes and transcripts (not all at that) of the fragment that deals with the Gongadze case itself. We told the court that if a Constitutional Court ruling had been applied against Kuchma, the same ruling must be also applied against Melnychenko: in other words, the Melnychenko tapes cannot be grounds for instituting criminal proceedings against him and the court should decide that the same tapes cannot be grounds for instituting criminal proceedings against Kuchma. I said in no uncertain terms that the Pechersk Court had applied a double standard, and I requested the Court of Appeal not to apply double standards, either, in this case. Nobody heeded this, and the Constitutional Court’s ruling was not applied in the Melnychenko case.
“So the Court of Appeal handed down a purely political ruling. It has in fact nothing to do with a court ruling. Formally, it is a court ruling, but this trial, as well as the one at the inferior court, violated the constitutional principles of judicial procedure, such as legality, impartiality, and independence of judges. When we were presenting our arguments, we could see by the judges’ facial expressions that they were convincing. Judges are also human, and you can see by their reaction how we can influence them with our arguments. Indeed, they were aware of what was going on. But my impression was they were obviously obeying orders. This means there will be no relevant pretrial investigation or a fair trial in the Gongadze, Kuchma, and Melnychenko cases. For if even one judicial precedent is created in the Kuchma case, the public is bound to raise the question of creating other judicial precedents for the ‘Kuchmagate.’ So every effort is now being made to avoid a judicial precedent and to keep Pandora’s box closed.
“Today, the government has turned Melnychenko out of a key witness into almost a public enemy. The information we have says it has been decided to tack down, extradite, and jail Melnychenko pending trial. Then he must be convicted or even done away with if he does not keep his mouth shut. In addition, we were hinted (I don’t want to disclose names) that there might be a ‘mopping-up’ in order to prevent further information leaks and keep the Gongadze case and the ‘Kuchmagate’ from being hyped too much. In other words, there may be new victims in the ‘Kuchmagate’ case.
“In the Melnychenko case, Court of Appeal rulings are not subject to appeal under the Criminal and Procedural Law. This means a criminal case has been opened. As Melnychenko is wanted by the police, pretrial investigation has been suspended until he is tracked down. It is a problem for the Ukrainian side to get Melnychenko extradited from Europe to Ukraine because Europe is taking an entirely different view of the Gondadze case and the ‘Kuchmagate.’ Suffice to recall the resolutions PACE has passed in connection with the Gongadze case, which Ukraine, incidentally, has not yet complied with. The situation is really difficult and does not seem to be improving.
“Surprisingly, although we invited very many journalists, only one came. Maybe, somebody just could not do so, but what about all the others? The Day has always spotlighted this subject. This raises the question: is this subject not interesting or are the vested interests pursuing a preemptive tactic? If journalists were adequately covering this topic, this would form an unbiased public opinion and the Ukrainians would continue to show unflagging interest in the Gongadze case.”
