Georgii Gongadze, founder of the popular web-journal “Ukrainskaia pravda” disappeared on 16 September 2000. Officers investigating the crime later established that on that day he was kidnapped by members of the Ministry of Foreign Affairs Special Branch who were tailing him. In November of the same year a headless body was found in the Tarashchansk Forest not far from Kiev. Forensic experts confirmed that it was Gongadze. His mother, Lesya Gongadze, still refuses to accept this conclusion and will neither identify the Tarashchansk body nor permit it to be buried.

The “Kuchma case” may surprise everyone by sidestepping punishment and politically rehabilitating the former Ukrainian president.

Investigations into the disappearance, and subsequently death, of the journalist were opened on 17 September 2000. The investigation was stepped up after 2005, when Viktor Yushchenko became President. He declared that he considered it a matter of honour to see through the investigation of the journalist’s murder to a solution. A considerable amount was indeed achieved during his presidency. The murderers, former MFA employees, were caught and sentenced: Valery Kostenko, Nikolai Protasov and Alexander Popovich received sentences of 12 or 13 years and are currently in prison. Their boss, the head of the MFA Outdoor Surveillance department Alexei Pukach, was also arrested. It was he who organised the special operation which led to the kidnapping of Gongadze; he strangled the journalist with his belt; he cut off the head and subsequently showed investigating officers where it could be found. Pukach is currently on remand in solitary confinement, but his case has yet to come before a court.

The actual murderers may be behind bars, but it has not yet been possible to legally establish the identity of their client, the man who was so bothered by Gongadze. For the last 10 years, though, it has been common knowledge that the client was Leonid Kuchma, the second president of Ukraine. This suspicion was confirmed by the so-called “Melnychenko tapes”:  Major Nikolai Melnychenko of the State Guard asserts that he surreptitiously made recordings in the President’s study. Several of them contain discussions about Gongadze.  A man, whose voice is like Kuchma’s, gives the order to “rid him of the troublesome” journalist, suggesting he should be handed over to the Chechens.

The client has, however, been identified officially. The investigating officers consider that it was Kuchma’s Minister of Internal Affairs, Yuri Kravchenko. It was apparently he who gave the order to Pukach to get rid of the journalist. Pukach organised the killers and fulfilled the order. But why should the minister bother about the journalist? Gongadze was writing more and more about politics and what was going on in the corridors of power. Kravchenko was, of course, around in those corridors, but he wasn’t the “hero” of the Gongadze novel.

Kuchma: This Gongadze.

Kravchenko: I, we're working on him. It means....

Kuchma: I'm telling you, drive him out, throw out. Give him to the Chechens. (indecipherable)...and then a ransom.

Kravchenko: We'll think it over. We'll do it in such a way so that.

Kuchma: I mean, drive him out, undress him, f**k, leave him without his pants, let him sit there.

Kravchenko: I'd do it simply, f**k, they reported to me about it today. We're learning the situation: where he's walking, how he walks. We've got someone sitting there hooked up. We have to study it a little bit, we'll do it. The team I have is a fighting one, such eagles, they'll do everything you want...

Ukraine’s second president Leonid Kuchma in a secretly recorded conversation with his Minister of Internal Affairs, Yuri Kravchenko. The so-called Melnychenko tapes firmly implicate Kuchma in the death of opposition journalist Georgii Gongadze

The Prosecutor General of the Ukraine has now opened a case against Leonid Kuchma. He is charged under part 3 of Article 166 of the Ukrainian Criminal Code (UCC) (1960 edition) i.e. for “abuse of power and exceeding his jurisdiction”. The circle has been closed, it would appear, and the triumph of justice is not so far... Yet Kuchma will not be punished, and I will explain why in the paragraphs to come.

The “bolt from the blue”

Information that a case had been opened against the second Ukrainian president came like a bolt from the blue or, as Kuchma himself commented, like “snow in a clear sky”. On 21 March, the First Deputy Prosecutor General Renat Kuzmin stated that the ex-president was “suspected of complicity in the murder of the journalist Gongadze”. On 22 March Leonid Kuchma went to for questioning to the office of the Prosecutor General. He offered no resistance, kept calm and tried pass his appearance there off as a duty, albeit an unpleasant one, to the Ukrainian people and to history. He declared that he was prepared to go through the fires of hell to prove his innocence.

Inconsistencies in the case started appearing immediately. On the one hand, Kuchma refused a face-to- face meeting with Melnychenko. The “galloping major” could have told his side of the story, so that Kuchma could confirm or deny the statements he made however, that this meeting will eventually take place sooner or later.

On the other hand, Kuchma did agree to a meeting with Pukach and it’s clear why: these two people had never met or had any previous communication. If Pukach received an order, it wasn’t from the head of state, but from his boss Kravchenko. The meeting should have been with Kravchenko to establish whether Kuchma had indeed given the order to get rid of Gongadze. But the former head of the MFA (unfortunately) shot himself in very strange circumstances as long ago as 4 March 2005. Another strange fact is that on the day he died, Yuri Kravchenko was due to give evidence at the Gongadze case.  Kravchenko could, should have been the link: Leonid Kuchma would either be confirmed as an evil man and a tyrant using repressive means to fight journalists, or it would be proven that he never issued any such unlawful orders, and that, just the opposite – he’s as pure as the driven snow. But neither situation will come to pass, because Kravchenko is dead.

Another reason why Kuchma will not be sent to prison is that the criminal case against him is not for murder, but for exceeding his jurisdiction. The devil, it appears, is in the detail. A careful reading of the Ukrainian Criminal Code (1960 edition) and of today’s version shows us that the crime of which Kuchma stands accused falls within the statute of limitation. The charges relating to the journalist’s disappearance were brought under the 1960 UCC, as was the case against Kuchma. The new UCC came into effect on 1 April 2001. Article 48 of the 1960 UCC reads: “Charges may not be brought against a person if the following periods have elapsed since the crime was committed….4)10 years from the date of a crime meriting, under the law, a more severe sentence than 5 years in custody”.  The stipulated sentence for a crime under part 3, Article 166 of the UCC is from 5 to 12 years. 

The four presidents of independent Ukraine — Yushchenko, Yanukovych, Kuchma and Kravchuk — have struck a series of unlikely political deals.

It’s not difficult to work out that the order was given, if indeed it is proved that an order actually was given, considerably more than 10 years ago. “As a rule cases such as this come to a halt during the investigation stage, though the investigating officer can send the case on to the court”, says lawyer Viktor Chevguz. “If Leonid Kuchma is considered a priori guilty, the investigating officer will lodge the charges, the case will come before a court and the court will consider it. But he will not be punished because the statutory period has lapsed.  Unlike President Moshe Katsav, our man will not be sent to prison for 7 years”.

The main reason why Kuchma will not go down is not even the statute of limitation. More important is the reality of political deals. Firstly, there was the Yushchenko-Kuchma deal: for some reason the most democratic president (Yushchenko) referred to Kuchma as “my father”. Then there was the Kuchma-Yanukovych deal: in his time Kuchma raised Yanukovych to Prime Minister of Ukraine, and then decided to make him his heir as head of state. The broad picture is of a deal between political elites. As the saying goes, “There’s honour among thieves”. The case against Kuchma should not be seen as a triumph of justice, but the authorities cynically mocking society. Their way, if you like, of showing how superior they are. It seems quite likely the case against Kuchma will not only not bring him any punishment, but more than that…he will actually be rehabilitated, politically laundered and will remain a historical figure officially without blemish.

A sophisticated, ironic and astute affair

But if there are no plans to imprison Kuchma, it is quite reasonable to ask what the point was of the comedy surrounding the opening of a case against him, his public appearances at the Office of the Prosecutor General (and he cuts a very credible figure for his age). 

The field is wide open for speculation. Some people surmise that someone is attempting to blackmail – not Kuchma, but his son-in-law, the prominent “oligarch” and media magnate Viktor Pinchuk. The deal would be that he would give up part of his business in return for the case against his wife’s father being closed.

Others consider that it is the current head of state, President Yanukovych, who has put the ex-president through the Prosecutor General’s wringer. The implication of this argument is that Kuchma offered insignificantly robust support in 2004. Faced with the increasing demands of the Orange revolutionaries, Kuchma agreed to step down in return for guarantees of personal immunity, thereby making way for Yushchenko, rather than Yanukovych, whom he originally supported.

The timing of the Kuchma case seems to be have been deliberately designed to coincide with Yulia Tymoshenko’s trip to Brussels

Whatever their reasons, the organisers of the “Kuchma affair” are sophisticated, ironic and astute. The announcement that criminal proceedings were being instituted, for instance, was made the day before Yulia Tymoshenko went to Brussels. She had spent several months preparing for this trip and was desperate to get there. Since she is currently being investigated for unlawful diversion of funds, she even had to get permission from the Prosecutor General’s Office to leave Kiev. For her Brussels was to be the place where she intended to spill the beans about the criminal Yanukovych regime and the selective approach of the law-enforcement agencies to the opening of criminal cases. Strange as it may seem, they were hounding officials from Tymoshenko’s government, while almost completely ignoring the abuses being perpetrated by the current government…

Suddenly the Kuchma case hits the headlines and it immediately undermines all the statements about micromanagement in Ukraine, the infringement of the opposition’s rights and the selective approaches. How can these assertions be made when a president is being investigated? And not just the head of state, but a man who ruled over them for 10 years and thanks to whom Ukraine emerged as a country!  No need for any Hague Tribunals or Carla del Ponte’s investigations, which last for years: the regime itself is preparing to mete out justice (they might think in Brussels). There are people who think like this and the “Kuchma Affair” is intended for them.

The main reason why Kuchma will not go down is not even the statute of limitation. More important is the reality of political deals.

So the opening of the criminal case is very timely for the authorities. Kuchma is pleased, because in the end he will be able to “prove” that he played no part in the Gongadze murder. Europe will be pleased: it will sigh and allow itself to relax in the illusion that in Ukraine all is not as black as it’s painted by the opposition.  Yanukovych will be pleased, because Kuchma and Europe are pleased and because Tymoshenko will be furious at the upsetting of her plans to tour the European Union “telling the truth”.

How all these politicians feel is of no interest to me. My point is a different one.  By not sending Kuchma to prison, the government is confirming that it has no principles and journalists will think extremely carefully before writing critically about the powers that be. What is particularly upsetting is that Kuchma getting off scot free will be a signal that anything goes – not only for presidents past or present, but for low-ranking officials, small fry who will quite reasonably think “well, if the president could commit a crime, then I certainly can”.

Photos: Leonid Kuchma Foundation, Polish Ministry of Foreign Affairs