The Gongadze Inquiry

THE GONGADZE INQUIRY
An investigation
into the failure of legal and judicial processes
in the case of Georgy Gongadze

Georgy Gongadze, 1969-2000

The International Federation of Journalists (Brussels),
The Institute of Mass Information (Kyiv)
The National Union of Journalists of the UK and Ireland (London)
and the Gongadze Foundation (Kyiv)

CONTENTS

Foreword

1. The Failure of Legal and Judicial Processes, 2000-2004 7
2. The Instigators are Getting Away, 2005 62
3. Official Obstruction Is Rewarded, 2005-2007 80
4. The Instigators are still Untouched, 2008-2009 114

The Authors of the Reports 120

Abbreviations and Institutions

2
FOREWORD

On 16 September journalists in Ukraine and around the world will mark the tenth
anniversary of the murder of Georgy Gongadze, founder of the Ukrayinska Pravda
website, who was kidnapped, strangled and beheaded by a group of police officers.

The Gongadze case has come to epitomise the impunity with which politicians and
other powerful people conspire to silence journalists. President Leonid Kuchma, the
present parliamentary speaker Volodymyr Lytvyn and other senior Ukrainian
politicians were recorded as they discussed harming Gongadze. A few days later he
was dead. Yet ten years on, none of the participants in those conversations, nor any of
the organisers of the killing, have been held to account.

The four reports, republished here, were compiled to monitor the Ukrainian
authorities investigation into the killing of Georgy Gongadze. Together they present
a grim picture of the failure, breakdown and, to a considerable extent, deliberate
sabotage of legal and judicial processes that have protected the powerful people who
were behind the journalists murder.

Rather than re-editing the reports, we present these working documents as they were
originally published, in 2005 (nos. 1 and 2), 2007 (no. 3) and 2009 (no. 4). This
means, on the one hand, that there is a degree of repetition. On the other hand, it helps
the reader to understand the process: how each new opportunity to push forward a full
investigation of the crime was lost or thrown away, despite the vigilance of Ukrainian
and international journalists and of press freedom organisations.

Journalists and press freedom organisations were concerned about the Gongadze case
from the moment of his disappearance in September 2000. Two months later their
concerns grew when tape recordings were made public of conversations in President
Kuchmas office, during which the president and his senior officials discussed how to
deal with Gongadze. The case immediately became notorious when Ukraines
Prosecutor General and other officials failed to follow the line of inquiry indicated by
these recordings. This and other failures were the subject of protest in the Council of
Europe and by press freedom organisations.

In 2003, the International Federation of Journalists, the Gongadze Foundation, the
Institute of Mass Information and the National Union of Journalists of the UK and
Ireland, all of which had campaigned on the case, formed a commission to inquire
into the failure of legal and judicial processes that had allowed those who ordered the
crime to act with impunity. The commission interviewed Ukrainian officials and
monitored the large number of publications about the case.

In November 2004, as the commissions first report was being prepared for
publication, the dispute over ballot-rigging during the presidential election in Ukraine
led to the Orange Revolution, a series of large-scale, anti-government
demonstrations in Kiev. The Supreme Court ordered a re-run of the second round of
the election. The result was a victory for the Orange opposition and the election of
Viktor Yushchenko as president.

3
These events raised high hopes of progress on the Gongadze case, which was
perceived as the epitome of the anti-democratic methods against which the Orange
Revolution had unfolded. Such hopes were rapidly dashed. The Yushchenko
administration showed itself as unwilling and unable as its predecessor to prioritise
the case or call successive prosecutor generals to account for their failures and
shortcomings.

No investigation was carried out into the 2003 release from jail of General Pukach,
who will now stand trial for Gongadzes murder, or into the circumstances under
which he was able to evade an Interpol search in mid-2005, apparently with assistance
from within Ukraines law enforcement agencies. This, and the cover-up of possible
chains of command between politicians and Pukach, was discussed in the inquirys
second report, published in September 2005. The third report, published two years
later, comprised a much fuller survey of such issues. The fourth report, issued in 2009
after the capture of Pukach, served to underline the way in which the misuse of legal
and judicial processes continued to protect the crimes instigators even after Pukach
was arrested.

The lamentable failure of justice in the Gongadze case has certainly encouraged other
politicians and officials who have threatened, bullied and intimidated journalists.
While the organisations that set up the inquiry will continue to monitor this process,
the four reports already provide a picture of how the instigators of such crimes act
with impunity. Lessons can be learned.

September 2010
4
1 THE FAILURE OF LEGAL
AND JUDICIAL PROCESSES

1.1 Introduction 7

1.2 The Inquiry 11

1.3 Assessment of official investigations 12

1.3.1 Early misinformation from officials
1.3.2 False announcements that suspects are in custody
1.3.2 (a) Citizen K
1.3.2 (b) Citizens D and G

1.4 Refusal to assess the Melnichenko recordings 19

1.4.1 Melnichenko tapes initially dismissed as fabrications
1.4.2 The response to Tek Bek examination
1.4.3 An alternative approach to authenticating the recordings

1.5 Police surveillance of Gongadze 25

1.5.1 Denial, confirmation, denial, confirmation ...
1.5.2 Possible connections with Gongadzes murder
1.5.3 Honcharovs death and possible connections with Gongadze case

1.6 Evidence of intimidation and harassment by the authorities 32

1.6.1 Pressure on individuals investigating the Gongadze case
1.6.1 (a) Ihor Vorotyntsev, Tarashcha district coroner
1.6.1 (b) Andriy Fedur, defence lawyer for Lesya Gongadze
1.6.1 (c) Oleksandr Zhyr, chief of parliaments Gongadze commission
1.6.1 (d) Mykola Zamkovenko, chair of Pechersky district court
1.6.1 (e) Svetlana Karmelyuk, forensic expert involved in DNA tests
1.6.1 (f) Hrihory Harbuz, investigator
1.6.2 Pressure on media investigating the Gongadze case

1.7 Other investigations into the Gongadze case 38

1.7.1 Parliaments ad hoc commission on Gongadze
1.7.2 Kroll Associates
1.7.3 Journalists investigations 43
1.7.3 (a) Jaroslaw Koshiw
1.7.3 (b) Azhur, St Petersburg
1.7.3 (c) Reporters sans frontires
1.7.4 (d) Television documentaries

1.8 Conclusions and recommendations 50

5
Appendices to Report 1 52

Appendix I: The work of the inquiry (2003-2004)
Appendix II: Chronology of investigations into Gongadzes murder
Appendix III: Organisations and individuals supporting this inquiry
Appendix IV: Motion for a resolution of PACE, 14 October 2004

2 THE INSTIGATORS ARE GETTING AWAY

Introduction 62

Scope of report 63

2.1 Preparation of trial of alleged participants in kidnapping 64

2.2 Lack of progress of investigation into those who ordered the murder 65

2.2.1 General issues
2.2.2 The case of General Pukach
2.2.3 Other officers at Ministry of Internal Affairs
2.2.4 The death of former Internal Affairs Minister Kravchenko

2.3 Unresolved issues surrounding the Melnichenko tapes 71

2.3.1 Failure of liaison with Melnichenko
2.3.2 Use of circumstantial evidence available from tapes

2.4 Continuing "PR management" of the investigation 74

2.5 Unresolved issues surrounding the PGOs work
on the Gongadze case 2000-2004 75

2.6 Political pressure aimed at limiting the scope of investigations 76

2.6.1 General
2.6.2 Parliaments failure to hear report of its own commission

Conclusions and recommendations 78

3 OFFICIAL OBSTRUCTION IS REWARDED

3.1 Introduction 80
3.1.1 Terms and scope of the inquiry

3.2 Trial of participants in the kidnapping 82
3.2.1 Political pressure on the court
6

3.3 Investigation of criminal activity within the MIA 84

3.3.1 The Podolsky case and the system of political intimidation
3.3.2 Informal networks of non-political criminal activity inside the MIA

3.4 Lack of progress in making use of the Melnichenko tapes 89

3.5 Leading politicians attitude to the investigation 93

3.5.1 Aleksandr Moroz
3.5.2 Yevhen Marchuk
3.5.3 Volodymyr Lytvyn
3.5.4 Politicians statements about the medical expertise on Gongadzes body

3.6 Investigation by the PGO into the instigators of the murder 98

3.6.1 Progress of the investigation
3.6.2 Changes of personnel
3.6.3 Failure of the search for Pukach
3.6.4 Closure of the investigation into Kravchenkos death
3.6.5 The lack of accountability for previous failures
3.6.6 Assessment of the PGO investigation by the parliamentary commission

3.7 Obstruction of the investigation at the political level, and conclusions 107

3.7.1 Political support for officials responsible for failures of the investigation
3.7.2 Ukraines reaction to European Court judgement in the Gongadze case
3.7.3 Conclusions

3.8 Recommendations 112

4 THE INSTIGATORS ARE STILL UNTOUCHED
4.1 Introduction 114
4.2 Surveillance and arrest of Pukach 115
4.3 The questioning of Pukach 116
4.4 Recovery of a skull ---
4.5 The investigation of criminal activities within the MIA 117
4.6 Conduct of the investigation ---
4.7 Political commentary on the case 118
4.8 Conclusions 119

The Authors of the Reports 120
Institutions and Abbreviations 121

7
1 THE FAILURE OF LEGAL
AND JUDICIAL PROCESSES
(Published as Preliminary Report in January 2005)

1.1 Introduction

The political events surrounding the Ukrainian presidential elections of November-
December 2004 have raised hopes for continuing democratic change in Ukraine and
elsewhere in Eastern Europe and the former Soviet Union. The issue of free speech
has been central to these political events: demands were made for an end to the
system of lies and distortion perceived by millions of Ukrainians to be a central aspect
of the misrule of their country, while journalists used the opportunity provided by the
political changes to assert and exercise their right of free speech.

The perception of free speech as a key issue for Ukraine did not develop overnight. A
key stage in the crystallisation of public opinion was the murder in September 2000 of
the journalist Georgy Gongadze, and the authorities subsequent failure to find his
killers. A measure of the importance of this case in Ukrainian politics is the fact that
both candidates for the presidency made a point of promising to solve the murder
should they be re-elected. On 18 November 2004, Viktor Yushchenko told foreign
journalists who asked him about the Gongadze case:

I give you my word that all the high-profile cases closed by Kuchma will be
revisited, commissions will be appointed and we will carry out full-scale
investigations.

Mr Yushchenko guaranteed that his presidency would work to stop the persecution of
journalists and that they would be able to work freely: Now the overwhelming
majority of the political elite, journalists and business circles understand one thing a
free press is an inalienable part of the progress of Ukrainian society
1
. The sacking of
the Prosecutor General [Henadiy Vasylyev] three weeks later and the reinstatement of
former Prosecutor General Svyatoslav Piskun immediately focussed renewed
attention on the Gongadze affair. Although in our view the reasons for Mr Piskuns
earlier dismissal are unclear, Mr Piskuns lawyer claimed that it had been due to the
progress he made with the Gongadze case
2
. And within a few days of his
reinstatement, Mr Piskun reappointed one of his former deputies who had previously
led investigations of the Gongadze case
3
.

Mr Piskun also referred to court a criminal case against former policemen charged
with having committed kidnappings and murders for ransom. These former policemen
included a key suspect in the Gongadze case
4
. The timing of our Preliminary Report
is therefore fortuitous. We undertook to examine the failure of the official
investigations of the Gongadze case and the issues raised, because of our belief that
this failure constituted a serious blow to press freedom not only in Ukraine but across
Europe and internationally. Following the political changes in Ukraine, we believe

1
UNIAN news agency, Kyiv (in Ukrainian), 19 November 2004.
2
UNIAN news agency, Kyiv (in Ukrainian), 10 December 2004.
3
Ukrayinska Pravda website (in Ukrainian), 15 December 2004.
4
UNIAN news agency, Kyiv (in Ukrainian), 13January 2005.
8
that new opportunities have been created for the Gongadze case to be resolved, and
make recommendations in this regard below.

*

Our investigation undertook to examine the apparent failure of legal and judicial
processes in the Gongadze case and the reaction of institutions and civil society to the
case. We therefore stated at the outset that:

The inquiry will not attempt to undertake any forensic investigation of the
circumstances of the murder. Rather it will examine whether the forensic investigation
has been properly undertaken and, if not, why not. The inquiry will examine the
political and social circumstances that surrounded the murder; political and social
factors that have hindered a full investigation; the response of relevant state
institutions and civil society to the case and their role in advancing and/or hindering
the investigation; and the weakness in legal and political systems highlighted by the
case.
5

Further information about our methodology is given in section 2 below (and in
Appendix I, The Work of the Inquiry).

This Preliminary Report covers four aspects of the official investigation into the
Gongadze case:

The substantial and presentational failures of the investigation (section 1.3);
The failure to deal with the Melnichenko recordings (section 1.4);
The alleged surveillance of Gyorgy Gongadze by officials of the ministry of
internal affairs and its possible connection with his murder (section 1.5); and
A series of cases of intimidation of public officials who dealt with the case
(section 1.6).

Finally, we have briefly reviewed and commented on other investigations of the case
(section 1.7). In section 1.3 we note the catalogue of elementary failures, and breaches
of procedure and law, by the investigation into the Gongadze case [overseen and
conducted] by the Ukrainian Prosecutor Generals Office. We summarise the mass of
contradictions in the public announcements by the investigating authorities. Our
findings concur with those of Mr Krger of the Council of Europe in 2003: namely,
that the investigating authorities deliberately obstructed and confounded the
investigation over a long period of time, and also made inconsistent announcements,
often on the basis of fabricated solutions to the case, that betrayed an unwillingness
to solve it.

We submit, further, that the purpose of these announcements was the cynical
manipulation of public opinion inside Ukraine and internationally. The presentation of
such false information to the Council of Europe (statement of 1 March 2001 at the
Councils 739th meeting of ministers deputies) suggests that this public relations

5
Scope and aims of the inquiry, agreed at a meeting of sponsoring organisations in Brussels on 5
November 2003.
9
management of the investigation was undertaken not only by the Prosecutor
Generals Office but also by other senior politicians and officials. This points to
broader political collusion within the Ukrainian establishment to obstruct and divert
the investigation, the substance and motivation of which needs to be uncovered in the
interests of human rights and the rule of law.

In section 1.4 we review the failure of the authorities investigating the Gongadze case
to deal with the so-called Melnichenko recordings. Wider issues concerning the
recordings fell outside our terms of reference, and we do not seek to prejudge their
authenticity or significance. But we note the substantial body of evidence suggesting
that the sections of the recordings that concern the Gongadze case are a genuine
record of conversations involving senior Ukrainian political figures. We submit that
no serious investigation of the Gongadze case can be completed without examining
these sections of the recordings and the nature of the connection between them and
Gongadzes murder.

In this report we detail:

The contradictory accusations by the Prosecutor Generals Office [PGO] that
the recordings were fabricated by Ukrainian politicians, and its inconsistent
actions in relation to these accusations;
The Prosecutor Generals arbitrary and inconsistent attitudes to the various
expert examinations of the recordings;
The refusal of the Prosecutor Generals Office at any time in the last four years
to acknowledge that the recordings must form part of the investigation of the
Gongadze case.

To our knowledge, neither Mr Piskun nor any other senior Ukrainian official has
returned to this central question in the weeks following the presidential election. We
submit that any progress made in the investigation of events in the Ministry of
Internal Affairs will be compromised if the influence on those events of discussions
within the senior Ukrainian leadership at the time of the murder is not also thoroughly
investigated. In section 1.5 we cover the alleged surveillance of Georgy Gongadze by
officials of the Ministry of Internal Affairs [MIA] in the period leading up to his
death, and the possible connection of this surveillance with his death. As with the
investigation of the murder itself, official investigations of this surveillance were
characterised initially by an unwillingness to investigate central pieces of evidence, by
obstruction of the judicial process and by a mass of contradictory public statements.

In 2003, progress was made on this aspect of the case that brought it dramatically into
the political sphere. Public accusations were made by former police officers and by
the head of the ad-hoc parliamentary commission on the Gongadze case of a
connection between the surveillance of Gongadze and his murder, of the involvement
in this of senior MIA officials, and of the existence of illegal armed gangs operating
within the internal affairs ministry. The Prosecutor Generals Office arrested the
former head of the MIA intelligence directorate, Oleksiy Pukach, and charged him
with destroying documents related to the surveillance of Gongadze. A former
policeman, Ihor Honcharov, died in custody after making accusations about the case.
Finally, detailed information appeared in a UK newspaper and on the internet relating
10
to these matters. But this investigation was halted after the sacking of Mr Piskun as
Prosecutor General in October 2003.

Since being reappointed as Prosecutor General in December 2004, Mr Piskun has
made clear his readiness to return to these issues. We welcome his declared
intentions. However, we note that since the political changes of November-December
2004 there has been no change in the official stance on the Melnichenko recordings.
This has led to concern among journalists and human rights campaigners in Ukraine
that an attempt will be made to defuse the issues raised by the Gongadze case
6
. We
submit that this issue must be investigated together with that of senior politicians
possible involvement in the affair: any attempt to break the link between these two
parts of the investigation would be a step backwards.

Section 1.6 of our report deals with a series of cases of intimidation and harassment of
public officials who, in pursuance of their duties, became involved in some way with
the Gongadze case, and of media that attempted to report the case in its early stages.
The list of victims who themselves suffered intimidation through trying to pursue
the case is striking for its breadth. It includes:

A district coroner who tried to perform his duties in regard to Gongadzes body;
A lawyer who attempted to perform his duties by representing Gongadzes
mother;
A former chair of the ad-hoc parliamentary commission on the case;
A former chair of the district court who issued a judgement that Mrs Gongadze
had the right to be represented as an aggrieved party in the case;
And a medical expert who tried to perform her duties with regard to Gongadzes
corpse.

These findings highlight the question mentioned above in relation to section 1.3 of the
report: namely, that there was a considerable network of forces working to obstruct
the investigation of the case. This again raises the issue of political collusion against
the investigation. We submit that, to bring the Gongadze case to a satisfactory
conclusion and to strengthen human rights in the country, the Ukrainian authorities
and international bodies concerned with the case must look at the extent of this
collusion and the reasons for it.

Section 1.7 of this report assesses a number of other investigations made into the case.
In the absence of a serious official investigation, and due to the political significance
of the case, several investigations were undertaken by NGOs, journalists and a private
detective agency. These fall into two categories: investigations that relied mainly on
journalistic methods and investigations that relied on private investigative and/or
quasi-police methods. We comment on the unsatisfactory presentation of the material
of the latter investigations (those by Kroll Associates of New York and Azhur of St
Petersburg) and call for their results, along with clear indications of their
methodology, to be published in full.

6
See, for example, the article by Volodymyr Boiko, www.ord.com.ua/categ_1/article_3188.html (in
Ukrainian), 12 December 2004.
11
We also note the difficulties faced by the Ukrainian parliaments ad-hoc commission
on the Gongadze case, which had insufficient powers in law to do its work, and the
results of which have been kept hidden by the misuse of parliamentary procedure,
which has prevented the commissions chairman from making a report. This again
points to political collusion to obstruct the investigation of the Gongadze case. We
hope that, in the new political conditions in Ukraine, it will at last be possible for this
report to be presented to parliament and published in full.

The Gongadze case will be a litmus test for Mr Yushchenkos promises to
democratise Ukraine and fulfil the expectations of the crowds that brought him to
power. Continued failure to resolve it encourages abuses of power to silence and
intimidate journalists. Without answers to the questions posed by the case:

No citizen can have confidence in parliament, the judiciary and the executive;
No journalist can feel safe to expose abuses of power;
There can be no talk of genuine free speech in Ukraine.

The case has important implications, too, for international civil society. There is
prima facie evidence that, shortly before Gongadzes death, the Ukrainian president
and other senior politicians discussed harming him. The fact that, more than four
years later, this evidence has not been investigated and no framework has even been
established for such an investigation, suggests that those in power still enjoy an
unacceptable level of impunity with respect to alleged intimidation of journalists by
murder and other violent means. For this reason we have made recommendations (see
1.8) to the Ukrainian authorities, international bodies and civil society.

1.2 The inquiry

In November 2003 representatives of four organisations the International Federation
of Journalists, the Institute of Mass Information of Ukraine, The National Union of
Journalists of the UK and Ireland, and the Gongadze Foundation launched an
inquiry with the aim of reviewing and assessing the numerous investigations of the
murder. As explained above (section 1.1), we set out to examine the apparent failure
of legal and judicial processes in the Gongadze case and the reaction of institutions
and civil society to the case. We had no access to material evidence, had limited
resources and had no pretensions to forensic expertise.

We therefore made no claim to be able to solve the murder case; rather, we sought to
assess the previous investigations, and in particular the failure of the Ukrainian
authorities to make progress in the case, in its political context.

We have performed the following work:

Established a comprehensive internet archive of reports of previous
investigations into the Gongadze case, including media reports on these
investigations and published or broadcast interviews with key investigators
(we intend in the near future to make this information resource available to
other researchers working on the case);
12
Sought on the basis of these materials to identify the strengths and weaknesses
in the approaches adopted in the investigations, and to examine the apparent
contradictions in statements about these investigations;
Interviewed key witnesses in the case, with an emphasis on the manner of the
investigations conducted, during a visit to Kyiv in September 2004 (a list of
interviews conducted is given in Appendix I to this report);
Presented a Memorandum to the Council of Europe on the case, which has
helped to inform the councils discussions
7
. This was followed by the
presentation of a Motion of Resolution on the case on 15 October to follow
closely and report on the legal and procedural developments of the
investigation of the Gongadze case, with particular attention to this inquirys
findings (see Appendix IV).

Our inquiry has won the support of prominent organisations and individuals,
reflecting the wide concern in international civil society about the Gongadze case
(Appendix III).

We record our thanks to all of them for the support given in various ways, in
particular in campaigning to highlight the case.

In presenting this Preliminary Report, we recognise that, even under the terms of
reference to which we worked, further research is required (Appendix I). However we
believe that this report can positively impact on the investigation as it unfolds in new
political circumstances.

1.3 Assessment of official investigations

The following account of the investigations into Georgy Gongadzes death by the
Ukrainian Prosecutor General, and related activity by the Ministry of Internal Affairs,
is based on public statements about the case and on information collected by
ourselves and by journalists; the authorities have been reluctant to discuss the case,
and, in particular, declined to meet our researchers in Kyiv.

1.3.1 Early misinformation from officials

The first stage of the official investigation into the case of Georgy Gongadze, who
went missing on 16 September 2000, was notable for its distractions, inconsistencies
and breach of due procedure under law.

After a corpse had been found in Tarashcha, a town near Kyiv, on 2 November 2000,
in the space of two weeks information was revealed which indicated that the headless
torso was probably Gongadze: its physical dimensions, jewellery found with the
corpse, the stomach contents, and shrapnel wounds to the hand. However, rather than
allowing for this probability, which soon became a certainty, investigators tried to
convince the public that the corpse was not Gongadzes and that he was still alive.

7
Press Freedom and the Murder of Georgy Gongadze: Memorandum to the Parliamentary
Assembly of the Council of Europe, available at www.ifj.org/default.asp?index=2721&Language=EN
13
It is reported that Ukraines chief coroner, Yuriy Shupyk, removed the stomach
contents but gave no instructions for the rest of the body to be moved to cold storage
in Kyiv
8
. The corpse therefore continued to decompose in the local morgue. On 15
November journalists arrived at the Tarashcha morgue to claim the corpse, which was
suddenly and inexplicably seized by the police and taken to Kyiv. The next day,
deputy Minister of Internal Affairs Mykola Dzhyha told parliament the corpse was too
short to be Gongadze and had been in the ground for two years
9
.

In the meantime, officials emphasised that there were sound reasons to believe
Gongadze might still be alive. On 25 September, Mr Dzhyha said Gongadze had been
seen in a Kyiv caf the day after he disappeared
10
; the Minister of Internal Affairs
Yuriy Kravchenko repeated this information on 6 October
11
. On the day after the
corpse was found, [first] deputy Prosecutor General Serhiy Vynokurov announced
that Gongadze had been seen on a train in Donetsk Region
12
. On 10 January 2001,
Prosecutor General Mykhaylo Potebenko told the media he had received new
information which suggests that the journalist is still alive
13
.

A few days later his deputy, Aleksei Bahanets, went to Lviv to question people who
said they had seen Gongadze; he said he had no doubt that they were not mistaken
14
. He repeated this claim a month later
15
. In late January Mr Potebenko said a Czech
visa had been issued to Gongadze after he disappeared
16
. In late April [2001], Mr
Bahanets told Russian television: We have a witness who was on holiday in the
Czech Republic and saw Gongadze in February
17
.

There is no indication that the authorities properly investigated these claims. If they
had done, they would have informed the public subsequently of the results. This did
not happen.

Valentina Telychenko, the lawyer for Gongadzes widow Myroslava, points out that a
photo-fit picture [sic] of Gongadze was pasted up in hallways all over Ukraine in the
weeks after he disappeared. Inevitably, given the scale of this campaign, people came
forward claiming to have seen someone resembling the photo-fit, creating a large
amount of work for investigators and deflecting their attention from other lines of
inquiry
18
.

In January 2001, Russian forensic experts issued the results of DNA tests on the
corpse, which indicated a 99.6 per cent probability that it was Gongadzes
19
. Despite

8
Jaroslaw Koshiw, Beheaded: The Killing of a Journalist, (Reading: Artemia Press), 2003, pp. 128,
133.
9
Ibid., chapters 16 and 17.
10
Ukrainian Television Third Programme, Kyiv (in Russian), 1500 GMT, 25 September 2000.
11
Ukrainian Television Third Programme, Kyiv (in Russian), 1500 GMT, 6 October 2000.
12
Ukrainian Television Second Programme, Kyiv (in Ukrainian), 1730 GMT, 3 November 2000.
13
UNIAN news agency, Kyiv (in Ukrainian), 10 January 2001.
14
Ukrainian Television Third Programme, Kyiv (in Russian), 1800 GMT 17 January 2001.
15
Kyivskiye Vedomosti, Kyiv (in Russian), 15 February 2001.
16
Kyivskiye Vedomosti, Kyiv (in Russian), 27 January 2001.
17
Rossiya TV, Moscow (in Russian), 1000 GMT, 20 April 2001.
18
Interview in Kyiv, 13 September 2004.
19
In other words, four mothers in a thousand could be expected to match their DNA with that of the
corpse.
14
this, the Prosecutor General announced in parliament: There are no sufficient
grounds to say that the body is that of journalist Gongadze unless additional forensic
examination is made. He said Gongadze could have been kidnapped by Ukrainian
politicians in order to discredit their political opponents
20
.

Six weeks later (22 February 2001), however, the Russians forensic experts raised
their estimate of the probability to 99.9 per cent. On 26 February, the Prosecutor
General confirmed that the corpse found in Tarashcha was Gongadzes, based on
these results
21
. Only then did he launch a murder investigation
22
. In other words, at
least another six weeks had been lost in the investigation just because of a 0.3 per cent
probability that the corpse was not Gongadzes
23
.

In fact, the police investigator Hryhoriy Harbuz had contacted Gongadzes widow
Myroslava and his colleague Olena Prytula three days after the corpse was found and
learned from them that the jewellery he had found on the corpse was identical to
Gongadzes
24
. In other words, there were grounds to launch a murder investigation
four months before the Prosecutor General did so.

All the same, even as late as August 2002 the deputy prosecutor general in charge of
the Gongadze case refused to fully rule out the possibility that Gongadze might still
be alive. He told Ukrainian television: We dont know for sure whose body this is.
25

Exactly a year previously, his predecessor in the post had announced on television
that tests had fully confirmed that the body belonged to Gongadze
26
.

These contradictory statements were accompanied by numerous announcements that
the various genetic and forensic tests on the corpse were biased, flawed or otherwise
inadmissible as evidence. This served to drag out the investigation and to prevent any
progress. Furthermore, the Prosecutor General refused to recognise Gongadzes
mother, Lesya, as the aggrieved party in the case, thereby preventing her and her
lawyer from having access to the materials of the case and independently observing
its progress. The Pecherskyy district court in Kyiv ruled on 9 February 2001, that the
prosecutors office had acted outside the law in refusing to recognise Lesya
Gongadzes rights
27
.

Hans Christian Krger, special envoy of the Council of Europe, noted these
shortcomings in his report to the Council in July 2003. He said: The Prosecutor
Generals Office made numerous -- and sometimes contradictory -- statements to the

20
Itar TASS news agency (Moscow), 10 January 2001.
21
Corpse confirmed as dead writer, the Independent (London), 27 February 2001.
22
Los Angeles Times, 28 February 2001.
23
Note that this was before the announcement by parliaments ad-hoc commission investigating
Gongadze that DNA tests conducted in Germany suggested the corpse was not Gongadzes. Further
tests subsequently showed the German tests to be flawed.
24
Koshiw, op. cit., p170.
25
Novyy Kanal television, Kyiv (in Ukrainian), 1600 GMT, 9 August 2002.
26
Inter TV, Kyiv (in Russian), 1700 GMT, 17 September 2001.
27
Interview with Judge Mykola Zamkovenko, formerly chair of the Pecherskyy Court, Kyiv, 15
September 2004.
15
press and before Parliament. Inconsistencies in the authorities statements were
often interpreted as proof of bias and unwillingness really to establish the truth.
28

To this conclusion we can add, on the basis of our research, that:

The Ministry of Internal Affairs also made statements with no basis in fact and
which were subsequently shown to be false;

The Prosecutor Generals Office (PGO) continued to pursue avenues of
investigation that subsequently were proved to be false, even when the
authorities knew there was a high probability they were false;

The PGO delayed making the Gongadze case a murder investigation for at
least six weeks, and possibly for several months, in the face of evidence that
the corpse was his;

The PGO continued to make public statements that false avenues of
investigation were valid long after they had been shown to be false.

The authors of this research submit that the effect of these contradictory statements
and actions was seriously to delay the progress of the investigation and to spread
confusion among the public about the case
29
. As a result, fresh clues and
information may have been overlooked or discredited, or their significance ignored.
The consequences for the later progress of the investigation need to be assessed.

In September 2002, Myroslava Gongadze filed a case to the European Court of
Human Rights against Ukraine, claiming: The State of Ukraine failed to conduct an
effective investigation on Georgy Gongadzes case and therefore violated Article 13
of the European Convention on Human Rights. The case is still in progress.

1.3.2 False announcements that suspects are in custody

1.3.2 (a) Citizen K

The lack of progress and the flawed investigation in the early stages of the case might
seem to contrast with announcements in 2004 made by [the new] Prosecutor General
Henadiy Vasylyev, [appointed in late 2003]. Mr Vasylyev appeared to have made no
progress in the case until 21 June 2004, when he unexpectedly announced that a
suspect, Citizen K, was in detention. The announcement raised a mass of

28
Report by Mr Hans Christian Krger to the Bureau of the Parliamentary Assembly of the Council of
Europe, AS/Bur (2003) 60, 2 July 2003, paragraphs 2.18 and 2.19.
29
Further material supporting this conclusion is contained in Koshiw, op. cit., pp 97-137. Koshiw also
points to the fact that the local coroner Ihor Vorotyntsev correctly assessed the corpses height at over
190cm, while deputy Minister of Internal Affairs Dzhyha told parliament the corpse was too short to be
Gongadze. Furthermore, no explanation was given: why an obvious murder victim was allowed to rot
in an unrefrigerated morgue; why the corpse had become just a pile of bones by the time it was viewed
by Gongadzes widow on 17 December; why ex-president Kuchma initially said on television that the
authorities thought it was a homeless person; why [Prosecutor General Mr] Potebenko did not tell
parliament during his report on 10 January that the Tarashcha coroner had jewellery [from] on the
corpse and that Gongadzes widow had told him it matched Gongadzes just three days after the corpse
was found. Ibid., pp 170-175.
16
contradictions, which the Prosecutor General failed to answer despite his requirement
to do so under Ukrainian law.

On 21 June 2004, the press department of the Prosecutor Generals Office declared
that a suspect, Citizen K, had said he killed Gongadze. A spokesperson announced:
The mans testimony is corroborated by the circumstances of the crime, such the
time [of the crime] and some other key facts established by the investigation,
including the beheading [of Gongadze].
30
Citizen K had previously been prosecuted
for several other murders that involved beheading, the spokesperson said.

On the next day a spokesperson for the Prosecutor Generals Office, said: Citizen K
has said he executed and beheaded Heorhiy Gongadze We are almost certain he
did it.
31
The announcement about Citizen K, which was widely reported, came just
two days after the appearance of an article in the Independent (London), which
revealed that leaked documents of the Prosecutor Generals investigation showed that
senior government officials had obstructed those investigations
32
. The Prosecutor
Generals office later confirmed the authenticity of the documents on which the article
was based
33
. The appearance of this article cast the PGOs investigation in a very bad
light. The announcement about Citizen K, in contrast, was made as if it marked a
breakthrough in the investigation.

In July 2004, the Institute of Mass Information, the Ukrainian Law Organization, the
International Federation of Journalists and the National Union of Journalists of Great
Britain and Ireland wrote a formal letter of inquiry to the Prosecutor General to ask
for information about Citizen K under article 9/32/33 of the Ukrainian Law on
Information. A reply was received from the Prosecutor Generals Office on 13
August, signed by chief of the Department of the Investigation of Very Important
Cases. Mr A. Chumachenko stated that Citizen K had not been arrested as part of the
Gongadze case, and that an investigation was continuing. His letter said only that all
theories would be examined and none had yet been ruled out
34
.

On 14 July 2004, the lawyer for Georgy Gongadzes mother also received a letter
from the Prosecutor Generals office, in which deputy prosecutor general Hryschenko
stated that at the present moment there are no suspects in the criminal case of the
murder of Gongadze. In this case no charges have been brought against anyone. This
letter fully contradicted the previous public announcements by the Prosecutor General
35
. Astonishingly, on 16 August the Prosecutor Generals Office retracted its earlier
statement about Citizen K. A spokesperson announced that there are no grounds for
saying that Citizen K has any status in the Gongadze case and that it would not be
appropriate to report any other circumstances regarding Citizen K
36
.

30
Ukraine prosecutors report breakthrough in Gongadze case, Interfax-Ukraine, 21 June 2004.
31
Associated Press Online, 22 June 2004.
32
Askold Krushelnycky , Pressure piles on Ukrainian leader after leaks reveal attempts to cover up
killing, Independent (London), 19 June 2004.
33
UNIAN news agency, Kyiv (in Ukrainian), 2 August 2004.
34
The letter is numbered No. 06/2-9310-01.
35
The letter has been seen by the inquiry.
36
Interfax-Ukraine, 16 August 2004.
17
The information presented above strongly suggests that the Prosecutor Generals
Office made a false announcement in June 2004 about the progress of the case in
order to improve its image. This amounts to a serious breach of law and procedure
and in no way can be seen as furthering the progress of the case.

Moreover, we submit that the handling of Citizen K by the Prosecutor Generals
Office is not an isolated incident: it is simply the most recent in a pattern of
announcements about the case by the Prosecutor General and other officials that
cannot be reconciled with known facts about the investigation. These announcements
appear to have been made primarily with the aim of managing the investigations
public image before both the Ukrainian public and the Council of Europe and other
international bodies.

As noted, in June 2004 the Prosecutor General announced that Citizen Ks confession
marked a breakthrough in the case. However, the Ukrainian delegation to the Council
of Europe (CoE) had already informed the CoE more than three years previously that
a Citizen K had been detained by the Prosecutor General. The delegation, citing the
Prosecutor Generals office, informed the CoE that information about the
circumstances of the murder of G. Gongadze could be possibly known to Citizen K.,
who is currently in custody for committing a number of grave crimes, including
premeditated murders by order. Citizen K had been ordered to murder a famous
oppositional journalist in Kyiv, the delegations report to the CoE stated
37
.

The information provided to the CoE by the Ukrainian delegation was effective in
persuading the Parliamentary Assembly of the Council of Europe (PACE) not to ask
for Ukraine to be immediately excluded from the Council of Europe; instead, Ukraine
was granted an extension
38
. In April 2001 Ukraine was granted guarantees of its
further membership of this international organisation.

No more was heard about Citizen K until the Prosecutor Generals surprise
announcement in June 2004, followed by its equally surprising retraction of its
statement two months later (see above).

1.3.2 (b) Citizens D and G

Dated 1 March 2001, the Ukrainian delegations report to the Council of Europe
stated that the Prosecutor Generals office was analysing the possible involvement in
Gongadzes murder of Citizens D and G, who belonged to an organised criminal
group and whose corpses had been found and identified. The report stated: The
Prosecutor General of Ukraine is analysing the information on [the] possible
involvement in the murder of G. Gongadze of Kyiv residents belonging to one of the
organised criminal groups -- citizens D. and G., who disappeared at the beginning of
November 2000.

37
Annex to Appendix I distributed by the Ukrainian Delegation on 1 March 2001, at the 739th meeting
of the Ministers Deputies regarding the results of the investigation into the Georgy Gongadze case.
The report is signed by Oleksandr Lavrynovych, head of the parliaments ad hoc commission
investigating the Gongadze case; later he became minister of justice in President Kuchmas
government.
38
Assembly grants another extension to Ukraine, CoE press statement, Strasbourg, 26 April 2001
(http://press.coe.int/cp/2001/302a(2001).htm ).
18

Elaboration of this version established the fact that these persons were murdered.
Due to joint actions of the bodies of the Prosecutor Generals Office and of the
Internal Affairs forces, the suspects involved in the murder of the mentioned persons
were identified and the location of the corpses of D. and G. was discovered. At
present, possible involvement of these persons in the murder of G. Gongadze is being
verified.
39

Citizens D and G stood for Igor Dubrovsky and Pavlo Gulyuvaty, also known by
their nicknames Tsyklop (Cyclops) and Matros (Sailor). The president of Ukraine, the
Minister of Internal Affairs and his deputy, the Prosecutor General and his deputy, all
proceeded to announce that the case had been solved and that citizens D and G had
murdered Gongadze.

Within a few months, however, this allegation was revealed to be completely untrue,
and the Ministry of Internal Affairs and the Prosecutor Generals Office were forced
to retract their earlier statements.

On 6 March 2001, the deputy prosecutor general in charge of the Gongadze case, Mr
Bahanets, said on Ukrainian television that: A group of people from a criminal group
may have been involved in Georgy Gongadzes disappearance. One of them has a
nickname Cyclops. They took a journalist, a Georgian, to a forest to get him to pay
some debts.
40

Lavrynovych, head of parliaments ad hoc commission investigating Gongadze and
later to become minister of justice in Mr Kuchmas government.

On 29 April 2001, Mr Bahanets, repeated this allegation
41
. Two weeks late, ex-
president Kuchma announced that investigators had practically discovered the
killers
42
, and he was shortly backed up by his Internal Affairs minister; two days later
Minister of Internal Affairs Smyrnov, declared the case had been solved: We have
proof concerning the criminals, who have died, to our sorrow, he said
43
.

On the same day Mr Smyrnovs deputy, Mr Dzhyha, announced that Gongadze had
been killed by these two criminals
44
. On 24 May 2001, the Prosecutor General, Mr
Potebenko, told Ukrainian television: We have enough proof in order to consider this
case as such to be nearing completion.
45

However, on 25 May a Kyiv newspaper revealed that the two criminals blamed for
Gongadzes death had both been filmed at a wedding on the day Gongadze
disappeared
46
. The very next day, Mr Smyrnov, the Internal Affairs minister,

39
Annex to Appendix I distributed by the Ukrainian Delegation on 1 March 2001, at the 739th
meeting of the Ministers Deputies regarding the results of the investigation into the Georgy Gongadze
case.
40
Ukrainian Television Third Programme, Kyiv (in Russian), 1600 gmt, 6 March 2001.
41
Ukrainian New Channel television, Kyiv (in Russian), 1120 gmt, 29 April 2001.
42
Interfax news agency, Moscow (in English), 14 May 2001.
43
Ukraine aide says thugs killed newsman, The Boston Globe, 16 May 2001.
44
UNIAN news agency, Kyiv (in Ukrainian), 16 May 2001.
45
Ukrainian Television Third Programme, Kyiv (in Russian), 1700 gmt, 24 May 2001.
46
Segodnya, Kyiv (in Russian), 25 May 2001, p 8.
19
retracted his claim
47
. The fact that the two criminals were still alive was originally
discovered by the Russian NGO Azhur (see section 1.7.3 (b) below). On 13 December
2001, representatives of Azhur gave parliaments ad-hoc investigating commission
the proof, including video evidence, that Matros, was safe and sound in
Dnipropetrovsk and nobody had ever arrested him
48
. In January 2002, deputy
Prosecutor General Mr Bahanets announced that the investigation had not confirmed
that the two Kyiv criminals, previously said to have killed Gongadze and to now be
dead themselves, were involved in the journalists murder
49
.

This episode demonstrates that information given to the Council of Europe by the
Ukrainian delegation, and which was used to justify claims by senior state officials
that the investigation was making progress and had even solved the Gongadze case,
was based on elementary errors. As noted above, this information was used to
persuade the CoE not to suspend Ukraines membership.

The information accusing the two criminals was also widely used in Ukraine to
convince the general public that the investigation into the case was nearing
completion. We believe that the success or failure of the Ukrainian authorities
investigation, and the reasons for it, cannot be fully assessed without taking this
aspect into account.

To sum up, over the fours years since Gongadze was killed the there was a pattern of
announcements by officials leading the investigation that Gongadzes killer(s) had
been identified and the case was solved. These announcements concerned Citizen K
and Citizens D and G. In both cases, however, within a few months the
announcements were fully retracted, in the first case after requests were made to the
Prosecutor Generals Office to clarify the situation, and in the second after the media
exposed that the suspects, who were announced to have been identified and the
location of their corpses discovered, were alive and well and had been at a wedding
when Gongadze disappeared.

The mass of contradictions in the public announcements by the investigating
authorities suggest that they made these announcements, often on the basis of
fabricated solutions to the case, with the cynical aim of manipulating public opinion
inside Ukraine and internationally. The presentation of such false information to the
Council of Europe suggests that not only the Prosecutor Generals Office but also
other politicians and senior officials colluded in this PR management of the
investigation. These issues are relevant to the issue of whether or not there was
broader political collusion to obstruct and divert the investigation, and must therefore
be investigated thoroughly.

1.4 Refusal to assess the Melnichenko recordings

The authors of this report believe that there is prima facie evidence on the so-called
Melnichenko recordings that, shortly before Gongadzes murder, the president of

47
Ukraine government backtracks on slaying, The New York Times, 26 May 2001.
48
Holos Ukrayiny, Kiev (in Ukrainian), 9 January 2002; interview with Valentina Telychenko, lawyer
of Myroslava Gongadze, Kyiv, 13 September 2004.
49
Novyy Kanal television, Kyiv (in Ukrainian), 1700 gmt, 25 January 2002.
20
Ukraine and senior ministers discussed harming him. As Oleksandr Lavrynovych,
chair of the Ukrainian parliaments ad hoc commission on Gongadze, put it in 2001:
In my opinion, the original audio records from the presidents office can shed
some light on the alleged involvement of the states top officials in the murder of the
journalist...
50
However, the Ukrainian Prosecutor Generals Office has refused at all
times for the last four years to consider this central aspect of the case.

In November 2000, one of ex-president Kuchmas guards, Mykola Melnichenko,
released recordings which he claimed he had made in the presidents office. On at
least five occasions from 12 June to 3 July 2000, ex-president Kuchma and his
ministers -- head of the presidents administration Volodymyr Lytvyn, minister for
internal affairs Yuriy Kravchenko, chief of the security service Leonid Derkach --
discussed following Gongadze closely, crushing him, taking care of him and
throwing him to the Chechens. Mr Lytvyn, now speaker of parliament, is apparently
heard suggesting to Mr Kuchma that he should let loose Kravchenko to use
alternative methods
51
.

By September 2004, four laboratories had conducted tests on the authenticity of the
recordings (The Kyiv Forensic Science and Research Institute; the International Press
Institute (Vienna); Bek Tek (USA); and the US Department of Justice), and several
individuals. The results have been inconclusive, but successive Ukrainian Prosecutor
Generals have made highly contradictory statements about the recordings. These
statements undermine their claims that the recordings are inadmissible as evidence in
the Gongadze case.

We are aware of the many issues, including human rights issues, raised in the public
discussion of the genesis of and contents of these recordings. However, these
important matters fall outside the scope of our investigations. We are concerned only
that all the available evidence points to the authenticity of the sections of the tape on
which Gongadze is discussed (namely, those that have been publicly available since
November 2000). The possible connection or connections between those
conversations and the murder of Gongadze is a matter for forensic and judicial inquiry
that we in no way seek to pre-judge. Our concern is that such inquiry has not yet
begun.

1.4.1 Melnichenko tapes initially dismissed as fabrications

Before the February 2002 examination of the recordings by the U.S. firm Bek Tek,
the Prosecutor Generals office consistently dismissed the authenticity of recordings
and their relevance to the case. Thus in December 2000 Prosecutor General
Potebenko announced that the recordings were categorically a fake
52
. In his
January report to parliament he said the Kyiv Forensic Science and Research Institute
had found that the recordings had been manipulated with deletions and additions of
phrases, words, fragments of words and sounds
53
.

50
Ukrayina Moloda, Kyiv (in Ukrainian), 2 March 2001.
51
Koshiw, op. cit., p 250.
52
Ukrainian Television Third Programme, Kyiv (in Russian), 1600 gmt, 14 December 2000.
53
21
As a result, the Prosecutor General ended investigations into the possible complicity
of top officials and opened a criminal case against Melnichenko for slander. Mr
Potebenko said the voices on the recordings had been fabricated by means of
superimposing dictation
54
. On 18 January 2001, the PGOs investigators raided the
apartment of Mykola Rudkovskyy, an aide to Socialist Party leader Oleksandr Moroz
and now a member of parliament, seizing a computer and CDs. Later that month Mr
Potebenko said that the search had revealed an underground laboratory that had a
direct relation to the audio tape scandal. The investigators, he said, found several
hours of records of speeches by Ukrainian leaders: It is possible that the faked
records were compiled from separate words and excerpts from those audio materials.
Examination will be conducted soon to answer a lot of questions.
55

A few days later, Mr Potebenko said the recordings were compromised with certain
words or fragments
56
. His deputy, Mr Bahanets, said a week later that the recordings
were compiled from separate fragments of conversations
57
. On 8 February,
Ukraines deputy Internal Affairs minister, Petro Kolyada, repeated that the
recordings had been edited together from several different sources: Some words
were put together letter by letter, he said on Ukrainian television. The voice is that
of a real person, but comes from various originals. The experts have pointed out that
one piece is from a digital recording, one is from a tape recording, some were
recorded with a microphone and some without.
58

More than 18 months later (October 2002), and despite the fact that no evidence had
been presented in court that Rudkovskyy had manipulated the tapes, [the new]
Prosecutor General Piskun returned to this issue, stating that the Gongadze episodes
on the recordings were edited on Mr Rudkovskyys computer.

According to Mr Piskun, the editing started on 18 September 2000 and was carried
out for a month
59
. Mr Piskuns deputy, Viktor Shokin, added shortly afterwards that
Gongadze disappeared on 16 September, while the piece of tape in which the
president allegedly spoke about Gongadze started to be assembled on 18 September.
This has been proved by expert analysis.
60

Mr Piskun spelled out the implication: that the Ukrainian opposition had fabricated
the recordings, and possibly murdered Gongadze, in order to frame ex-president
Kuchma for the murder
61
. Mr Shokin repeated this allegation: The motive was
indeed to frame the president.
62
Despite these extremely serious allegations, no
charges were brought against Mr Rudkovskyy. Furthermore, none of the examinations
of the recordings have implicated Mr Rudkovskyy in fabricating the recordings;

54
Ukrinform news agency, Kyiv (in Ukrainian), 10 January 2001.
55
Kyivskiye Vedomosti, Kyiv (in Russian), 27 January 2001.
56
Financial Times, 7 February 2001 (US Edition).
57
58
Novyy Kanal television, Kyiv (in Ukrainian), 8 February 2001.
59
Interfax-Ukraine news agency, Kyiv (in Russian), 1409 gmt, 2 October 2002.
60
Segodnya, Kyiv (in Russian), 28 November 2002.
61
Interfax-Ukraine news agency, Kyiv (in Russian), 1134 gmt, 2 October 2002.
62
Segodnya, Kyiv (in Russian), 28 November 2002.
22
indeed, Mr Rudkovskyy threatened to sue Mr Piskun for the allegations against him
63
.

1.4.2 The response to Bek Tek

Bruce Koenig, founder of the American audio/video specialist firm Bek Tek and
formerly supervisor of the FBIs audio/video forensic laboratory, examined the five
Gongadze-related excerpts from the recordings and concluded in February 2002 that
the recordings had not been doctored. Bek Tek concluded:

The specimen Q1 recordings are consistent with being clone recordings and there are
no indications of alterations or edits to the audio data in the five designated areas in
the two .DMR files. Based on the flow of speech in the five designated portions, no
phraseology or sentence structure was pieced together by using individual phonemes,
words or abort phrases.

it is the opinion of BEK TEK that the five designated portions, within the two
specimen Q1 files, are continuous and unaltered, based on the above listed analyses.
Though the existence of any digital manipulation is highly improbable, if it did occur,
without now being obvious, then the most probable scenario would be a loss of data,
and not additions or editing of content.
64
Mr Koenig sealed the materials he
examined and has stated he is prepared to defend his examination in court
65
.

An examination in September 2002 by the US Justice Department of those parts of the
recordings concerning illegal arms sales to Iraq confirmed Bek Teks conclusions
66
.
Among the excerpts of the recordings provided to the US Justice Department were
two excerpts on the Gongadze case; Melnichenko himself has complained that the
Justice Department was deliberately delaying its results as a means of putting
pressure on President Kuchma
67
.

Prosecutor General Piskun said he took the Bek Tek findings seriously. He
announced: Taking into account the new findings about [authenticity] tests held on
the so-called Melnichenko records, the Prosecutor Generals Office has ordered an
additional phonoscopic test.
68
No test was forthcoming, however. Almost a year
later -- in March 2003 -- the PGO announced: The Prosecutor General has sent a
request to the US Department of Justice to conduct a joint examination of the original
recordings concerning Gongadze.
69
In September 2003, Mr Piskun announced in the
Kyrgyz capital Bishkek that he had commissioned a unique expert examination
which should clear up the question
70
.

63
Rudkovskyy agreed he had copies of the recordings on his computer -- Moroz has
never denied that he has copies --but that was all. (Interfax-Ukraine news agency,
Kyiv (in Russian), 1409 gmt, 2 October 2002.)
64
Quoted in Koshiw, op. cit., pp 247-248.
65
Interview with Oleksandr Zhyr, Kyiv, 15 September 2004.
66
Interview with Hrihory Omelchenko in Ukrayina Moloda, Kyiv (in Ukrainian), 3 September 2002.
67
Ukrayinska Pravda website, Kyiv (in Russian), 2 August 2004.
68
Ukrayinska Pravda website, Kyiv (in Russian), 2 August 2004.
69
Interfax-Ukraine news agency, Kyiv (in Russian), 1 April 2003.
70
Interfax-Ukraine news agency, Kyiv (in Russian), 4 September 2003.
23
Finally, in December 2003 the new Prosecutor General, [Henadiy Vasylyev]
requested and received $160,000 from the Ukrainian government to conduct an
international expert examination of the recordings
71
; the money went to the Kyiv
Forensic Science and Research Institute. These statements are in direct contradiction
to the Prosecutor Generals earlier statements that the recordings had been fabricated
by Mr Rudkovskyy. If the recordings had been fabricated, why was there any need to
repeat the examination? If they had not been fabricated, why were such allegations
made against Mr Rudkovskyy?

The Prosecutor General turned down requests in 2004 by the organisations sponsoring
this research and others that international journalistic and civil society organisations
be allowed to observe the latest examination
72
. Oleksandr Zhyr, former head of the
parliamentary commission investigating the Gongadze case, said he is prepared to
produce the materials in his possession for examination by the Prosecutor General, on
condition that the examination should be under the control of international journalists
organisations to ensure objectivity and to prevent tampering with the recordings
73
.
The Prosecutor General has not responded to this long-standing proposal.

On 10 September 2004, the head of the Kyiv institute announced the results of the
latest tests: the recordings were a doctored copy, he said, and the voices on them were
unrecognisable
74
. However, three days later the Prosecutor Generals office stated
that the tests had been performed on copies of the recordings provided by members of
parliament, implying that without the originals absolute certainty was impossible
75
.
This announcement made a nonsense of the Kyiv institutes statement that the
examination had revealed that the recordings were copies -- the investigators already
knew that this was the case
76
. Our findings suggest that the Prosecutor Generals
office commissioned an expensive new examination of the recordings which was
certain to produce no new information.

On 22 September 2004, the Prosecutor General again returned to the allegations last
made by his predecessor almost two years ago, announcing to a press conference that
editing of the Gongadze excerpts on the recordings had begun on 18 September 2000,
two days after the journalists disappearance. He said experts had reached this
conclusion after inspecting a computer hard drive and some CDs. He announced a
criminal investigation into the doctoring of the recordings
77
.

This announcement was made as if it was news, although the prosecutor first made
precisely these allegations in January, 2001, after raiding Mr Rudkovskyys flat. On

71
Interfax-Ukraine news agency, Kyiv (in Russian), 8 January 2004.
72
Letter from IFJ, NUJ, RSF, Article 19, IMI to the Prosecutor General of the Ukraine, 2 February
2004; Reply from the Prosecutor General, 19 February 2004; Second letter from IFJ, NUJ, RSF, Article
19, IMI to the Prosecutor General of the Ukraine, 24 February 2004; Reporters Without Borders press
release, 25 March 2004.
73
74
75
Era, Kyiv (in Ukrainian), 13 September 2004.
76
The lawyer Andriy Fedur showed this investigation written proof from the deputy prosecutor
general that the prosecutors office already knew that the recordings used in the latest examination
were not originals. Interview with Fedur, Kyiv, 14 September 2004.
77
UNIAN news agency, Kyiv (in Ukrainian), 22 September 2004.
24
the basis of the information at our disposal, we conclude that the Prosecutor Generals
office:

Made serious allegations against a member of parliament on the basis of
insufficient evidence and in the face of evidence to the contrary;
Failed to substantiate those allegations;
Repeatedly used those unsubstantiated allegations over a 3.5-year period to
discredit the authenticity of the recordings;
Dismissed credible examinations of the recordings that have confirmed their
authenticity;
Ordered a new examination of the recordings, apparently in the knowledge that
it would be certain to provide no new information.

The PGOs contradictory actions in relation to Mr Rudkovskyy, its arbitrary and
inconsistent attitude to the various expert examinations of the Melnichenko tapes, its
refusal to co-operate with the journalistic organisations and press freedom NGOs
following the Gongadze case, and, above all, the lack of a clear statement from the
PGO at any time in the last four years acknowledging that the tapes must form part of
any serious investigation of the Gongadze case all add up to an evasion of a crucial
aspect of the Gongadze case.

To our knowledge, neither Mr Piskun nor any other senior Ukrainian official has
returned to this central question in the weeks following the 2004 presidential election.
Yet any investigation of the case that fails to tackle this issue will also leave
unresolved the questions raised about possible political involvement in the murder.
Any progress made in the investigation of events in the ministry of internal affairs
will be compromised if the possible influence on those events of discussions within
the senior Ukrainian leadership at the time of the murder is not also dealt with. We
therefore call on President Yushchenko, the Prosecutor Generals Office and the
Ukrainian government as a whole to accede urgently to our request for a proper expert
examination of the tapes with observers from civil society and for a transparent form
of investigation of the possible links between the conversations allegedly recorded on
the tapes and the Gongadze case.

1.4.3 An alternative approach to authenticating the recordings

The Prosecutor General has consistently refused to perform a method of analysis of
the recordings suggested by an authoritative institution: namely comparison of the
recordings with real events known to have taken place.

After examining the recordings, the International Press Institute (Vienna) concluded:
Comparison between the violations of law and the criminal acts suggested in the
recordings and the actual happenings in the Ukraine may be a proper method in
achieving a solution.
78

78
Letter to Oleksandr Lavrynovych and Serhiy Holovaty, Investigative Commission of the Verkhovna
Rada (Supreme Council), Kyiv, from Prof. Johann P. Fritz, director, IPI, Vienna, 22 February 2001.
25
Only the Ukrainian parliaments commission on Gongadze has applied this method.
In February 2003 the commission held a meeting to attempt to reconstruct ex-
President Kuchmas day on 12 June 2000, according to the recordings. Two members
of Parliament, Borys Oliynyk of the Communist Party and Ivan Drach of the
opposition Our Ukraine bloc, testified after listening to the recordings that recordings
of their conversations with ex-President Kuchma on that day were genuine
79
.

Oleksandr Zhyr, chair of parliaments ad hoc commission on Gongadze, told this
investigation: At the time we didnt have the technology of Bek Tek, so we took the
route of voice recognition. We gave the recordings to a range of people, and they
agreed that it was their voices on the tapes and their conversations in the presidents
office. The president and [Internal Affairs minister Yuriy] Kravchenko refused to take
part, however.
80

In his book on the Gongadze case, the Ukrainian journalist J.V. Koshiw has also
drawn attention to several instances in which conversations on the recordings
predicted subsequent events known to have taken place
81
. These are:

The attacks on independent TV station STB in 1999 were apparently discussed
by
President Kuchma and the head of the tax office, Mykola Azarov;
The physical attack on member of parliament Oleksandr Yelyashkevych (8
February 2000) was apparently discussed by ex-president Kuchma and SBU
chief Derkach on the day before it happened;
The 9 June 2000, kidnapping and severe beating of political activist Oles
Podolsky was apparently discussed three days later by ex-president Kuchma
and Internal Affairs minister Kravchenko;
Deputy head of the Kyiv city police, Petro Opanasenko, launched an
investigation into Gongadzes complaint that he was being followed -- the
complaint was apparently discussed by Mr Kuchma and Mr Kravchenko on 11
September 2000.

We submit that a new investigation should assess attempts to apply this approach to
authenticating the Melnichenko recordings.

1.5 Police surveillance of Gongadze

1.5.1 Denial, confirmation, denial, confirmation

On 14 July 2000, Georgy Gongadze sent an open letter to the Prosecutor General to
complain he was being followed. Senior Ukrainian state officials at first denied the
fact of surveillance, then made contradictory statements which continue to this day,
despite prima facie evidence of Gongadzes surveillance by police before he was
murdered.

79
Interfax-Ukraine news agency, Kyiv (in Russian), 11 February 2003; UNIAN news agency, Kyiv
(in Ukrainian), 11 February 2003.
80
81
Koshiw, op. cit., pp 32-34, 58-60, 67-68, 82.
26

When, however, serious investigations into police surveillance appeared to be
undertaken, the president of Ukraine intervened to stop the investigation. We submit
that failure to take seriously the surveillance of Gongadze, and its possible connection
to his murder, is part of a pattern of repeated failure to properly investigate vital
aspects of the case.

In October 2000, Ukrainian television reported that both first deputy minister of
internal affairs Dzhyha and a representative of the Security Service of Ukraine
categorically denied their organisations involvement in shadowing Gongadze
82
. In
February 2001, deputy Prosecutor General Bahanets stated that his office had
investigated Gongadzes allegations of police surveillance and had found no evidence
that such surveillance took place
83
.

However, a year later the PGO had changed its tune. On 20 February 2003,
Prosecutor General Piskun stated: Gongadze himself announced that he was being
followed.
84
Moreover, the PGO moved to arrest a police officer for destroying
evidence of Gongadzes surveillance by police. On 24 October, the PGO announced
that the former head of the MIA intelligence directorate, General Oleksiy Pukach, had
been arrested in the Gongadze murder case, accused of issuing orders to destroy
documents listing people who conducted surveillance of Gongadze
85
.

These remarks and actions directly contradict the statements made previously by
Internal Affairs ministers and the PGO in the month immediately after Gongadzes
disappearance. This was not the end of contradictory announcements on this matter,
however.

In June 2004, information from leaked documents from the prosecutors
investigations in 2003 was published in the Independent (London). The documents
appeared to show that MIA undercover police teams carried out surveillance on
Gongadze for weeks until the time of his abduction on the orders of General Pukach.
They showed that the surveillance continued until Gongadzes disappearance on 16
September 2000; on that day, Pukach told officers to forget that there had been any
surveillance operation against Gongadze
86
. The original documents were later
published on a website
87
. At first Prosecutor General Vasylyev stated that he was
very dubious about [publications] with quotations from anonymous sources, or from
mythical employees of law enforcement bodies
88
. Only six weeks later did the
Prosecutor Generals office state at a press conference that the documents were
genuine
89
.

In the meantime, the Prosecutor General stated most emphatically in an open letter to
the Independent that Gongadze had indeed been under surveillance: The

82
Ukrainian Television Third Programme, Kyiv (in Russian), 1700 gmt, 3 October 2000.
83
84
Q&A with Prosecutor General Svyatoslav Piskun, Kyiv Post, 20 February 2003.
85
Ukrainian Television first programme, Kyiv (in Ukrainian), 0800 gmt, 24 October 2003.
86
Askold Krushelnycky, Pressure piles on Ukrainian leader after leaks reveal attempts to cover up
killing, Independent (London), 19 June 2004.
87
www.delogongadze.org .
88
Ukrayinska Pravda website, Kyiv (in Ukrainian), 21 June 2004.
89
UNIAN news agency, Kyiv (in Ukrainian), 2 August 2004.
27
information about the fact that Gongadze was under surveillance prior to his
disappearance has been at the disposal of the parliamentary ad-hoc investigation
commission for a long time, Mr Vasylyev wrote. I knew about this information
when I worked in the commission in 2000-02. Therefore it is, to put it mildly, not
serious to say that the published information is a sensation!
90

Despite this clear statement confirming the surveillance of Gongadze, the MIA
announced a new investigation into the matter. On 14 September, the ministry
reported the results of its investigation, saying it had not been able to establish
whether Gongadze had been followed because documents had been destroyed and
employees denied any surveillance
91
. Two days later the ministry qualified its initial
statement, telling journalists that it was in no position to say yes or no
92
.

The official statements assembled above are among the most startlingly contradictory
in the Gongadze case. They point to extreme confusion within the investigating
organs on a key aspect of the case. We submit that an adequate investigation of the
case must start from the prima facie evidence of surveillance and must prove that
surveillance did not take place, rather than starting from this assumption.

On 12 October 2004, the Supreme Court of Ukraine confirmed the lawfulness of the
reinstitution of a criminal case against Mr Pukach; the Supreme Court criticised the
Prosecutor Generals office for abandoning the case a year before
93
. On 14 January
2005, it was reported that Prosecutor General Piskun intends to re-open the case
against Pukach
94
.

We welcome the Prosecutor Generals readiness to pursue this line of inquiry.
However it must be emphasised that the issue of illegal armed formations within the
internal affairs ministry is only one aspect of the Gongadze case. We do not believe
that pursuit of this issue in isolation can lead to a satisfactory solution of the case.

1.5.2 Possible connections with Gongadzes murder

The Melnichenko recordings provided the first suggestion that the surveillance of
Gongadze might have been connected with his abduction and murder. This possibility
was ruled out by the Prosecutor General early in 2001 on the basis that the recordings
were fabrications. However, two years later (February 2003) a letter to an opposition
newspaper Hrani claiming to be from police officers alleged that the police and
Internal Affairs minister Kravchenko had been involved in Gongadzes murder.

The PGO appeared to take this letter seriously, or perhaps it was already working
along this line of investigation when the letter appeared. So on 20 February 2003,
Prosecutor General Piskun said he was investigating the involvement of MIA staff in
Gongadzes death and was searching for the people who had carried out surveillance
of the journalist. Contradicting previous statements by the MIA and [his predecessor
as] the Prosecutor General, Mr Piskun stated: We do not rule out the possibility that

90
UNIAN news agency, Kyiv (in Ukrainian), 8 July 2004.
91
TV 5 Kanal, Kyiv (in Ukrainian), 1400 gmt, 14 September 2004.
92
Ukrayinska Pravda, 16 September 2004.
93
TV 5 Kanal, Kyiv (in Ukrainian), 1200 gmt, 12 October 2004.
94
Ukrayinska Pravda website, Kyiv (in Ukrainian), 14 January 2004.
28
he was murdered precisely by the people who were following him. And we are
looking for those people.
95
On 24 February, Mr Piskun repeated this statement
96
.

On 28 February, however, Mr Piskun categorically denied saying that his office was
investigating possible police involvement: It is a lie. I never said that, Mr Piskun
told a newspaper
97
. This statement requires explanation, because Mr Piskun is on
record as saying the exact opposite. Indeed, two months later Mr Piskuns deputy, Mr
Shokin, directly contradicted Mr Piskun, saying security service involvement in the
murder was being investigated
98
. When asked if the PGO had rejected the theory
about involvement of security forces in Gongadzes disappearance and murder, Mr
Shokin replied: No theory can be rejected until the murderers are found. That
includes the theory of the participation of security forces.

In the same interview Mr Shokin also confirmed that the PGO was checking on the
involvement in Gongadzes murder of the so-called werewolves, a gang of current
and former police officers, including senior officers, who allegedly kidnapped people
for ransom and sometimes murdered their victims.

That summer an important development heightened existing suspicions of police
involvement in Gongadzes disappearance. On 1 August 2003, a key witness, Ihor
Honcharov -- a former policeman of the MIAs directorate for fighting organized
crime -- died in custody in mysterious circumstances. Shortly afterwards, letters of his
were made public on the website of the Institute of Mass Information
(www.imi.org.ua ). Honcharov had told the Prosecutor Generals investigators a year
before the names of police officers involved in surveillance of Gongadze. He also
alleged that policemen had killed Gongadze on the orders of Kravchenko, the
Minister of Internal Affairs
99
.

On 11 August, the PGO said Mr Honcharovs letters contained practically no new
information because they had already questioned him
100
. However, a month later Mr
Piskun said the letters had helped them make significant progress
101
, confirming
that the some facts [contained in the letters] have proved to be true
102
.

Despite these contradictory statements, during this period the Prosecutor Generals
Office became confident that it was nearing a solution to the Gongadze case.

95
Q&A with Prosecutor General Svyatoslav Piskun, Kyiv Post, 20 February 2003.
96
Interfax-Ukraine news agency, Kyiv (in Russian), 24 February 2003.
97
2000, Kyiv (in Russian), 28 February 2003.
98
Segodnya, Kyiv (in Russian), 25 April 2003.
99
The text of one of Honcharovs letter is on the Ukrayinska Pravda website, Kyiv (in Ukrainian), 7
August 2003; See also Interfax-Ukraine news agency, Kyiv (in Russian), 11 August 2003. It may be
significant to draw attention to the circumstances in which Honcharovs letters were made public after
his death. The letters were made public by Maria Sambur, formerly lawyer to the Institute of Mass
Information, who gave numerous interviews at the time in which she said the letters show ex-president
Kuchma had nothing to do with Gongadze. According to the Institute of Mass Information (IMI), Ms
Sambur removed those parts of Honcharovs letters which were relevant to Mr Kuchmas alleged
involvement before she made them public. The issue is currently the subject of several court cases.
Interview with Sergiy Taran, director of IMI, Kyiv, 12 September 2004.
100
Interfax-Ukraine news agency, Kyiv (in Russian), 11 August 2003.
101
2000, Kyiv (in Russian), 5 September 2003.
102
Kyiv Post, 12 September 2003.
29
On 25 April, deputy prosecutor general Shokin said: There is very serious progress
in the investigation, and I hope that it will develop appropriately. I reckon that the
case will soon be cleared up, moreover perhaps more quickly than the Prosecutor
General promised at one time.
103
On 13 May 2003, Mr Vynokurov, the first deputy
Prosecutor General, said the office had come very close to solving the case
104
. On 4
September, Prosecutor General Piskun said the case was practically solved
105
. Five
days later he issued arrest warrants for two suspects. On 21 September, Mr Piskun
told Ukrainian television the investigation was at the final stage
106
. Hrihory
Omelchenko, now chair of the parliamentary commission on Gongadze, had already
announced that his explanation of the murder coincided with that of Mr Piskuns
107
;
he subsequently confirmed that they were agreed on the issue of Gongadzes
surveillance by MIA police
108
. It is interesting to note that, unlike 2001 when the
PGO declared the investigation was solved and Gongadze had been killed by the
criminals Cyclops and Sailor, in mid to late 2003 there were no statements by the
president or Internal Affairs ministers supporting the prosecutors contention that the
case was nearly over.

It was also during this period (Winter 2002-Autumn 2003) that the Council of
Europes special envoy, Hans Christian Krger, complimented Mr Piskuns office,
praising a professional investigation, transferring his authority to Piskun as reporter
on Gongadze to the Council of Europe, and then issuing a report saying Mr Piskun
was doing all he can to solve the case
109
.

In October 2003, the investigation appeared to have reached a climax with the arrest
of General Pukach in the Gongadze murder case, charged with destroying evidence of
Gongadzes surveillance by police. At this point, however, further progress of this
investigation was halted. On 29 October Mr Piskun was sacked by President Kuchma,
for reasons that are still unclear. Mr Pukach was released from custody a week later
(he was cleared by a Kyiv court in April 2004)
110
. Ex-President Kuchma dismissed
Mr Piskun after a request from the Presidential Coordinating Committee for Fighting
Organized Crime and Corruption, which accused Mr Piskun of committing serious
breaches of current legislation and committing dishonest actions. The committee
further accused Mr Piskun of over-politicising his office, of failing to implement
presidential decrees, and of large-scale corruption
111
. The new Prosecutor General,
Mr Vasylyev, denied that the Gongadze case was nearly solved: The words came
ahead of the deed, he told reporters at his first news conference since taking up the
post in November
112
. In May 2004, he met the president of the National Union of
Journalists of Ukraine, Ihor Lubchenko, to whom he announced that everything has

103
104
105
106
ICTV television, Kyiv (in Russian), 1500 gmt, 21 September 2003.
107
One Plus One TV, Kyiv (in Ukrainian), 1730 gmt, 11 December 2002.
108
Interview with Omelchenko, Kyiv, 16 September 2004.
109
European envoy praises Ukraines journalist murder probe, One Plus One TV, Kyiv (in
Ukrainian), 1730 gmt, 14 December 2002; Interfax-Ukraine news agency, Kyiv (in Russian), 24 June
2003; Report by Mr Hans Christian Krger to the Bureau of the Parliamentary Assembly of the
Council of Europe, AS/Bur (2003) 60, 2 July 2003.
110
Era TV, Kyiv (in Ukrainian), 1300 gmt, 23 April 2004.
111
Interfax-Ukraine news agency, Kyiv (in Russian), 29 October 2003.
112
AP Online, 18 December 2003.
30
been started from a clean slate in the murder investigation
113
. In January 2004,
representatives of the PACE (Parliamentary Assembly of the Council of Europe)
monitoring committee met Mr Vasylyev in Kyiv, but were disappointed that they did
not learn any news about the investigation into the Gongadze case, which appeared
to them to have been shelved. A member of the committee, Renate Wohlwend, said
114
:

The optimism with which [former prosecutor-General] Svyatoslav Piskun told us
that the investigation was close to completion was something new for us. But now it
looks as if this issue were simply shelved. The Prosecutor Generals office has taken a
different tone, and this is disappointing.

This inquiry is in no position to assess the evidence on which Mr Piskun and his
deputies based their optimistic statements about progress in the case. Nor can it
comment on the reasons for their dismissal from their posts. However, there appear to
be very serious and substantial grounds for subsequent investigations to continue to
examine possible links between Gongadzes surveillance and his death. On the basis
of the information available to this inquiry, we submit that the Ukrainian authorities at
first made every effort to avoid reaching the conclusion that Gongadze was followed
by police before his death, and that this surveillance may have been linked to his
disappearance. When, however, lines of inquiry appeared to be leading towards this
conclusion, the investigation was halted and the investigating personnel were
replaced. Since the political changes of November-December 2004, there have been
encouraging indications that this issue may now be taken up again. We believe that
progress in investigating the surveillance is integral to a successful solution of the
Gongadze case.

1.5.3 Honcharovs death and possible connections with the Gongadze case

Ihor Honcharov, the witness who died in custody in August 2003, gave detailed
evidence of the operation of a gang, whose members of which included policemen,
who kidnapped and murdered people for money. This gang, of which Mr Honcharov
was a member, has become known in the press as the werewolves. Mr Honcharov
alleged that the gang abducted and killed Gongadze on the orders of Internal Affairs
Minister Kravchenko. He also said that, after he informed the head of Kyivs
directorate for combating organized crime about these facts, he was given a savage
beating and warned not to tell anyone else. Two months later he died in custody and
the body was hastily cremated. Fearing for his life, Mr Honcharov had written letters,
referring to these issues, and requested they be published in the event of his death.

Mr Honcharovs evidence points to the possible existence and operation of illegal
death squads within the Ukrainian state. Despite the seriousness of this evidence,
and the authority of its source, the evidence available to this inquiry strongly suggests
that the Ukrainian authorities have failed to mount a proper investigation. Very early
on, suspicions were aired that Mr Honcharov did not die a natural death. In November
2003, the respected Ukrainian newspaper Zerkalo Nedeli revealed that specialists
had concluded that Mr Honcharov was administered a series of injections, in

113
Ukrayinska Pravda website, Kyiv (in Ukrainian), 18 May 2004.
114
Interfax-Ukraine news agency, Kyiv (in Russian), 20 January 2004.
31
particular a preparation that paralysed the breathing
115
. In December 2003, however,
Prosecutor General Vasylyev told a news conference: A medical examination did not
establish the cause of death as violent.
116

In June 2004, the Independent (London) published information based on leaked
documents, including a secret autopsy on Mr Honcharov which showed he was
injected with a drug called Thiopental, an anaesthetic. The newspaper concluded:
The autopsy and tests performed for the government by six experts show Honcharov
was injected with Thiopental, which the experts said probably led to death. Doctors
have told The Independent that there would have been no legitimate medical reason
to use the drug.
117
Only after this publication did prosecutors for the first time say
that a Mr Honcharov did not die of natural causes, as previously claimed, although
they denied that the death was caused by injection of drugs. The Prosecutor Generals
office said it had opened a criminal investigation into Mr Honcharovs death in May,
2004; the results showed the cause of death was a blow to the spine
118
.

Two days later, however, the prosecutors office announced that the detective
investigating Mr Honcharov had been removed from the case, and that the prosecutor
had opened another investigation into Mr Honcharovs death
119
. At the time of his
removal from office, Mr Vasylyev had not made any obvious progress in
investigating the cause of Honcharovs death and the information he had left
regarding the activities of the werewolves. Despite Mr Honcharovs claim that his
life was in danger, the Prosecutor General only admitted to his murder after
documents from the Gongadze investigation had been made public in the British
press. As shown above, the Prosecutor General was also reluctant to investigate Mr
Honcharovs evidence that Gongadze had been placed under surveillance.

The evidence presented here suggests that further examination of the werewolves
case may reveal information relevant to the Gongadze murder case. As a leading
member of the werewolves himself, Honcharovs testimony is therefore of the
utmost importance, as are the circumstances surrounding his death. Part of the
problem with the Honcharov issue has been the reluctance at the highest level of the
Ukrainian establishment to acknowledge the need for action to be taken. This was
brought home to our researchers by our interview with Oleksandr Lavrynovych,
formerly chair of the parliamentary commission on Gongadze and now Minister of
Justice in Ukraine. He told this investigation that the Ukrainian government did not
discuss matters such as the possible operation of rogue elements within state
structures: The question of illegal groups [operating in the MIA] has not been

115
Zerkalo Nedeli, Kyiv (in Russian), 8 November 2003.
116
Interfax-Ukraine news agency, Kyiv (in Russian), 18 December 2003.
117
Independent (London), 19 June 2004. In fact there was a legitimate medical reason: the detailed
medical records included among the documents on which the newspaper based its report show that
Honcharov was injected with Thiopental over three weeks before his death as part of a procedure to
move him onto mechanical breathing apparatus as his condition gradually deteriorated. The Thiopental
was administered before intubating the lung; Thiopental is widely used as a bronchial anaesthetic.
However, the autopsy make the point that thiopental was also administered not long before his death,
and that this fact was not documented in the medical records. The autopsy concludes that Thiopental
was contraindicated for a patient in his condition and could have contributed to the rapid onset of
death. See document aut13.jpg at www.delogongadze.org .
118
Interfax-Ukraine news agency, Kyiv (in Russian), 1002 gmt, 21 June 2004.
119
UNIAN news agency, Kyiv (in Ukrainian), 23 June 2004.
32
discussed in the government. What is there to discuss? The work should be done by
those whose job it is. If investigators are making investigations, and the investigations
are not complete, they do not make reports to the government -- that has never been
the case in the whole of human history.
120

On the contrary, we submit that death squads or other illegal formations within the
state are of primary importance for the government, which ought to take an active
interest in the progress of investigations into their operations. We therefore welcome
the fact that, soon after Mr Piskun was reinstated to the post of Prosecutor General
during the Orange Revolution, the Prosecutor Generals Office referred the so-
called werewolves case to court. The case was brought against 12 individuals,
including four former policemen, with having committed kidnappings and murders
for ransom in the period 1996-2000. At one period the gang was headed by
Honcharov
121
. It remains to be seen whether the forthcoming case will throw any new
light on Gongadzes murder.

1.6 Evidence of intimidation and harassment by the authorities

1.6.1 Pressure on individuals investigating the Gongadze case

The authors of this report believe that, such has been the resistance by various figures
in the Ukrainian government, administration and law enforcement bodies to
progressing the Gongadze investigation, that intimidation and harassment may have
been used against those who sought to do so. We draw attention to the following
officials who became involved in the case and as a consequence may have suffered
intimidation and harassment, in breach of both international conventions on human
rights and Ukrainian law.

1.6.1 (a) Ihor Vorotyntsev, district coroner, Tarashcha

Ihor Vorotyntsev conducted the first autopsy on the Tarashcha corpse and matched it
with Gongadze (the external examination of the corpse should by law have been
performed in the presence of an official investigator, although this often does not
happen
122
). He also issued a death certificate in Gongadzes name to Gongadzes
colleague Olena Prytula (by law relatives of the deceased have the legal right to
remove the corpse from the morgue
123
).

Mr Vorotyntsev alleges that he was mistreated and put under pressure because he
tried to carry out his duties in line with his job description, rather than in line with the
wishes of the Prosecutor Generals Office. Mr Vorotyntsev told this investigation that
Prosecutor General Potebenko had come to his home to question him. Potebenko
came to my place and ordered to me to tell the truth. With Piskun it was even more
fun -- it was awful. They shouted at me for a long time, swore at me, put moral
pressure on me. Then they wanted me to sign a protocol saying that there hadnt been
any such pressure.

120
Interview with Lavrynovych, Kyiv, 14 September 2004.
121
UNIAN news agency, Kyiv (in Ukrainian), 13 January 2005.
122
Interview with the journalist Vladimir Boiko, Kyiv, 30 December 2004.
123
Ibid.
33
Other examples of the pressure placed on Mr Vorotyntsev include a phone call to say
that a Black Maria was on its way [konvoi uzhe zakazali], being asked where he
had hidden the money, as if he was carrying out orders for material gain, and being
called early in the morning and told to be in the Prosecutor Generals Office for
questioning by 10 am. It was the same under Potebenko, but under Piskun it started
with new vigour, on a bigger scale, Mr Vorotyntsev told this investigation.

Mr Vorotyntsev is presently on sick leave, having suffered a heart attack
124
. Mr
Vorotyntsev came under intense pressure from successive Prosecutor Generals, who
seemed to want to blame him and other local officials for irregularities and therefore
deflect attention from the much greater irregularities committed by top state officials.

In December 2002, charges were brought against Serhiy Obozov, the Tarashcha
prosecutor, and Serhiy Belinskyy, an investigator from the local prosecutors office.
They were charged with abuse of office, fraud and complicity in crime during the
Gongadze case investigation
125
. Obozov was sentenced to 2 ! years in jail, although
the sentence was subsequently suspended
126
.

Mr Vorotyntsev said: Potebenko had Belinskyy sacked. Obozov has suffered more
than anyone.

1.6.1 (b) Andriy Fedur, defence lawyer for Lesya Gongadze

Having agreed to be the lawyer for Lesya Gongadze, Georgys mother, lawyer Andriy
Fedur says he faced harassment from state officials as a result.

On 12 October 2002, the authorities in Kyiv arrested Mr Fedur on suspicion of
forging documents
127
. Two months later the Prosecutor Generals office prohibited
Mr Fedur from participating in the Gongadze case
128
. Mr Fedur told this
investigation:

First they made some changes to the law in 2001, to the effect that if a criminal case
is taken out against a lawyer, that lawyer cannot defend others. A criminal case was
duly taken out against me and I was put in prison. No judge looked at my case, no one
decided I was guilty.

The new law is unique -- there is no such law anywhere else. If the conditions of the
law came into effect after sentencing, of course, that would be quite another matter.
But as things stand they have deprived me of my profession.

On 30 April 2003, the Kyiv city prosecutor Andriy Boiko declared that Mr Fedur had
not falsified any documents. This investigation has seen a copy of Mr Boikos ruling.
Boiko was in charge of the investigation into my falsifying documents, Mr Fedur
said. He announced in court that the documents were not falsified and that I, Fedur,

124
Interview with Ihor Vorotyntsev, Tarashcha, 13 September 2004.
125
One Plus One TV, Kyiv (in Ukrainian), 1730 gmt, 11 December 2002.
126
One Plus One TV, Kyiv (in Ukrainian), 1630 gmt, 6 May 2003.
127
Interfax-Ukraine news agency, Kyiv, in Russian, 12 October 2002.
128
UNIAN news agency, Kyiv (in Ukrainian), 16 December 2002.
34
did not falsify them. I also have a copy of a magistrates decision ruling that I was
held in jail illegally.
129

The changes to the law under which Mr Fedur was taken off the Gongadze case were
introduced under presidential chief of staff Viktor Medvedchuk, who is also the chair
of the Ukrainian Union of Lawyers and a member of the Supreme Council of Justice.
He therefore has the power to appoint judges. This investigation points to an apparent
breakdown in the separation of powers between the executive and the judiciary in this
instance.

1.6.1 (c) Oleksandr Zhyr, chair of parliaments Gongadze commission (2001-2002)

Oleksandr Zhyr says the results of an election which he was forecast to win by a
handsome majority were falsified because of his role in investigating the Gongadze
case. Late in the evening on 12 July 2002, a local court disqualified Mr Zhyr -- then
chair of the parliamentary commission investigating the Gongadze case -- from
standing in an election for parliament on 14 July
130
. The lateness of the decision
meant Mr Zhyr could not appeal. An election watchdog, the Committee of Voters of
Ukraine, condemned the disqualification
131
. The ad-hoc parliamentary commission
monitoring the observance of law during the by-election stated that massive vote
rigging had taken place
132
. Mr Zhyr told this investigation:

The first round of the election took place on 31 March. I received information that I
had been elected and that 76 per cent voted for me.
Then we were told the numbers of votes had been falsified. We have a video from a
hidden camera of how the head of the electoral commission gathered together all the
members of the commission and said: get a pen and write down what the numbers of
votes should be.
Two thousand police came to the ward. Convoys of coaches arrived with policemen.
They frightened people.
A week before the election, [Mykola] Ahafonov [a member of parliament] came and
warned me that I would be crushed. He explained that a number of high-ranking
officials had spoken to him. They had decided to get rid of me in court. I was told to
stop all meetings with voters. I was removed from the electoral roll on the Friday
before the elections, effectively two minutes before the day of the election.
The governor, [Mykola] Shvets, did not hide that Kuchma had told him: Its either
you or Zhyr. I didnt contest the decision in court. There wasnt any point. And my
wife had died between the first and second rounds of voting.

At the time, the Ukrainian media frequently linked Mr Zhyrs mistreatment to his role
in investigating the Gongadze case. Mr Zhyr confirmed to this investigation: I have
no doubt that this was linked to the Gongadze case, it was done because of Gongadze.

129
Interview with Andriy Fedur, Kyiv, 14 September 2004.
130
131
Interfax-Ukraine news agency, Kyiv (in Russian), 13 July 2002.
132
35
I can prove that the elections were fixed so that the deputy was appointed, not elected.
I can prove this in court.
133

1.6.1 (d) Mykola Zamkovenko, former chair of the Pechersky district court, Kyiv

For several months after Gongadzes disappearance, the Prosecutor General refused to
recognise Mrs Lesya Gongadze, Gongadzes mother, as the aggrieved party. In
February 2001, the judge Mykola Zamkovenko established that deputy prosecutor
Bahanets had acted outside the law in this regard.

At about the same time (March, 2001), Mr Zamkovenko ruled that a prominent
opposition leader and businesswoman, Yulia Timoshenko, should be released from
custody. In May 2001, a criminal suit was filed against Mr Zamkovenko for cases he
had ruled on several years earlier
134
. Viktor Kudryavtsev, the first deputy Prosecutor
General, gave permission for a search of Mr Zamkovenkos premises to be conducted.
A court later ruled that this search had been illegal
135
. In July 2001, a presidential
decree was issued, at the request of the Supreme Council of Justice, sacking Mr
Zamkovenko
136
.

Mr Zamkovenkos case was passed to the Regional Appeals Court in Kyiv, where a
judge delivered a verdict of negligence [khalatnost]. Mr Zamkovenko appealed and
the Supreme Court will examine the case on September 30, 2004
137
.

It is suggested here that Mr Zamkovenkos dismissal may have been related not only
to his ruling on Mrs Lesya Gongadzes application, but also on his ruling on Mrs
Timoshenkos bail application. He himself sees his mistreatment as connected to the
Gongadze case
138
; Mr Bahanets stated publicly that his appeal to the judicial
qualification commission to discipline Zamkovenko was a consequence of the
Gongadze case
139
.

The Timoshenko case falls outside the scope of our investigation. Our concern is with
the evidence of a possible causal connection between Mr Zamkovenkos decision on
Mrs Gongadzes application and his subsequent dismissal, which may have been in
breach of human rights and Ukrainian law.

1.6.1 (e) Svetlana Karmelyuk, legal medical expert involved in DNA tests
on the Tarashcha corpse

In late December 2000, Svetlana Karmelyuk, a legal medical expert who was required
to make DNA tests on the Tarashcha corpse, refused to cooperate further with the
official Gongadze investigation because she saw that procedural rules were being
broken. She took leave and prepared to go away.

133
134
135
UNIAN news agency, Kyiv (in Ukrainian), 31 May 2001; Ukrainian Television Second Programme,
Kyiv (in Ukrainian), 1500 gmt, 15 June 2001.
136
Ukrainian Television Third Programme, Kyiv (in Russian), 1500 gmt, 18 July 2001.
137
Interfax-Ukraine news agency, Kyiv (in Russian), 29 March 2004.
138
Interviews with Andriy Fedur and Nikolai Zamkovenko, Kyiv, 14 and 15 September 2004.
139
36

Two policemen came to her home at 9 pm on 30 December. They demanded she give
them her foreign passport. An argument ensued and the policemen tried to seize the
passport.

The incident was reported as an instance of pressure on the medical expert, who had
been due to fly to Germany to examine the results of independent DNA analysis
commissioned by the parliamentary commission on Gongadze
140
.

1.6.1 (f) Hryhoryi Harbuz, investigator

Myroslava Gongadze, the journalist's wife, told Reporters sans frontires (RSF) in
early 2001: "The judge in charge of the investigation, Hryhoryi Harbuz, started by
carrying out a serious inquiry. I trusted him". But Mr Harbuz was replaced in early
November 2000, after the discovery of Gongadzes corpse
141
.

Valentina Telychenko, Myroslava Gongadzes lawyer, added:

He [Mr Harbuz] was very experienced, very correct, he behaved with Myroslava
very humanely. As soon as he saw that the SBU was interested in the case, however,
he met us in a caf and said: The case is very serious, the SBU is all over it [sidit
plotno]. This was in the first week after Gongadzes disappearance.
Harbuz advised me not to give evidence that I believed that [head of the presidents
administration] Lytvyn and [businessman] Volkov had a motive to kill Gongadze. He
said it would ruin my life. I insisted none the less.
I thought they had simply thrown my protocol away, because the people whose
names I gave were not interrogated. But I was wrong. A few years later I found out
that my protocol still exists.
Then they took Harbuz off the case, sent him to hospital, then on leave, and then into
retirement.

We submit that a senior investigators opinion that giving evidence in the case could
ruin the life of that person is further evidence that the investigation into Gongadzes
disappearance was highly prejudiced from the outset. The fact that Ms Telychenkos
protocol, drawn up together with Mr Harbuz, was not then acted upon further
substantiates this conclusion. We are also concerned that the investigator who voiced
this opinion was swiftly removed from the case.

This section of our report emphasises not only the seriousness of the Gongadze case
but the extent to which it has become a touchstone for human rights in general in
Ukraine. The extraordinary array of people who were involved with it who
subsequently faced intimidation by identified or unidentified people within various
Ukrainian state structures suggests that a considerable network of forces was working
deliberately to obstruct and derail the pursuit of justice. For human rights and press

140
Ukrayinska Pravda, Kyiv, 2 January 2001; interview with Valentina Telychenko, lawyer of
Myroslava Gongadze, Kyiv, 13 September 2004.
141
Mutilation of the Truth: Inquiry into the Murder of Journalist Georgy Gongadze. RSF, Paris, 22
January 2001.
37
freedom to be assured in Ukraine in future, it is important to clarify the nature of this
network. We submit, therefore, that all the cases mentioned in this section form part
of the background to the case and should be taken into account in future
investigations.

1.6.2 Pressure on media investigating the Gongadze case

In the period immediately after the discovery of Gongadzes corpse, several media
affirmed that they were under pressure to change their coverage of the case. The
Reporters Sans Frontires delegation met some 10 editors of newspapers who claimed
that officers of the police and local SBU were behind this pressure on publications,
printing works and distributors.

After publication of the 26 November 2000 edition of Hrani, in which the lead
stories were devoted to revelations in the Melnichenko recordings, the newspapers
printers, which depend on the Ministry of Science, cancelled their contract. In
December the papers editor-in-chief, Yuriy Lutsenko, received a document by fax
resembling a report by the security service in which his daily habits and itinerary were
described. After announcing on 12 January 2001, that he had information on the
identity of the civil servants who shadowed Gongadze, he claimed he was also
followed in Kyiv.

On 27 November, officials who introduced themselves as SBU agents from the town
of Chernenko tried to prevent the printing of the next days edition of the newspaper
Roubezh, which ran a lead story on the Gongadze affair. On 28 November one of the
vehicles distributing the newspaper was stopped by three policemen who confiscated
the entire load.

On 29 November a newspaper of the Trudova Poltavshchina political party in the
eastern town of Poltava was the victim of a bomb scare. The paper was about to
publish an appeal by socialist leader Moroz concerning the Gongadze affair. The
editor S. Bulba recalled: We divided up all our copies between the different
journalists and employees, who stored the newspapers in their homes until distribution
the next day.

On the same day the printers Pressa Ukrainy refused to print the edition of another
Socialist Party newspaper Tovarishch, featuring an article on possible involvement
of the government in the Gongadzes disappearance. The 6 December edition of the
newspaper Litsa in the southern town of Dnipropetrovsk, which published a
transcription of the recordings, was refused by the printers Knizhnaya Tipographia,
following intervention by an agent from the regional SBU. The newspaper was
printed in another region.

The 7 December edition of the newspaper Slovo Veterana in the town of Pavlograd
was censured. A full page devoted to the Gongadze affair and headed The Scandal of
the Year was removed as the newspaper was going to press. The editor-in-chief,
Ludmila Pregseva, said she was called in at 7.30 pm by the manager of the printing
works. The manager explained to me that she could not print the edition with that
article, following the intervention of an officer from the Pavlograd SBU office. I
38
refused to put another article in its place and the edition was printed with a blank page
instead of the censured article.

On 12 January 2001, people claiming to be Ukrainian intelligence officers approached
members of Radio Free Europe-Radio Libertys Ukrainian Service and threatened
reprisals against them if the service did not modify its coverage of Ukrainian political
developments concerning Gongadze. The station had broadcast numerous exclusive
interviews with individuals of key importance to the Gongadze situation, including
Melnichenko
142
.

On 13 December 2000, Matlid Publications, publisher of Eastern Economist
magazine, was raided by tax police and its employees interrogated a week after it
published a scathing editorial on the Gongadze scandal. The magazines Kyiv bank
account was seized the previous day.

On 7 February 2001, a government-owned printing house refused to run an edition of
the Kyiv newspaper Kommersant, which featured a story on anti-Kuchma
demonstrations
143
.

1.7 Other investigations into the Gongadze case

Owing to the intense interest in the Gongadze case, its political importance at one
stage in early 2001, protests focussed on the issue threatened to bring down the
government and the failure of official investigations to solve it, semi or unofficial
investigations have had a resonance and impact on public opinion disproportionate to
their scale. Moreover, given Ukraines geopolitical importance, there have been
frequent accusations that investigations into the case have been covertly sponsored by
foreign governments in pursuit of their own interests, to which they are supposedly
prepared to sacrifice an impartial assessment of the facts. Semi-official or unofficial
investigations claiming to have made progress in the case have therefore become
objects of political polemic. This inquiry has attempted to assess the contributions
they have made.

1.7.1 Parliaments ad hoc commission on Gongadze

On 21 September 2000, parliament (the Verkhovna Rada), under pressure from
journalists voted to establish a 15-strong commission to look into Gongadzes
disappearance. Oleksandr Lavrynovych, from the national-democratic political party
Rukh, was elected the commissions chair.

The commissions work was hampered from the start because parliament did not have
the right to set up committees with powers to subpoena witnesses or use law
enforcement agencies to investigate. Its investigating powers were therefore strictly
limited. Moreover, it rarely achieved a quorum -- members from pro-Kuchma factions
in parliament chose not to attend, so it was left to individuals on the commission to try
to make some progress.

142
Ibid.
143
IPI Report No.1, 2001. International Press Institute, Vienna.
39
Furthermore, the commission was charged not only with investigating Gongadze. Its
commissions full name, as defined by a parliamentary resolution, is as follows: The
temporary ad hoc investigation commission of the Supreme Council [Verkhovna
Rada] on the state of the investigation into: the disappearance of journalist Gongadze,
and of civil activist Boychishyn; the murders of peoples deputies Shcherban and
Hetman; the attempt [on the life of] on peoples deputy Bortnyk; the attacks against
peoples deputies Yelyashkevych and Khara; the abduction of peoples deputy
Alyokhins son; and the death of peoples deputies Boiko, Myaskovskyy and
Drahomaretskyy.
144
Hence its work was spread across several investigations,
although its main focus was Gongadze.

In September 2004, Mr Lavrynovych, who later became Minister of Justice in Mr
Kuchmas government, was positive about his time as chair of the commission. He
told this investigation: During my period [as chair], there was no obstruction of our
investigations. We did a lot to help those who were investigating.

At the time, however, his opinion of the commissions work appeared to be very
different. In December 2000, he told The Guardian (London) that he was losing
confidence in the official investigation: The remains of the body were brought to
Kyiv in the middle of November and we still dont have a positive identification - an
unusually long time. No one has revealed what kind of analyses are being carried out
and how much longer the process will continue for, which undermines ones
confidence in the whole process.
145

He told The Washington Post in February, 2001, that the situation was so politically
risky he wished he had never agreed to head the commission. Basically, I dont have
any support, he said
146
. A month later he told a newspaper:

I assess the investigation of the Gongadze case by the law-enforcement bodies as
unsatisfactory. There have been and their certainly will be so many irregularities and
faults that I just dont know of anyone who is satisfied by the investigation. We have
seen that different agencies cannot always find a common language, and that
coordination of their actions has not been up to standard.
147

In October 2001, Socialist Party deputy Oleksandr Zhyr took over as chair of the
commission. In December 2001, Mr Zhyr made a brief report to parliament on the
commissions findings so far in the Gongadze and other cases. He accused the
Prosecutor Generals office of legal violations and inaction and complained that Mr
Kuchma and other state officials had refused to meet with the commission. He also
called on parliament to earmark 500,000 hryvnia to create an international group to
examine the Melnichenko recordings
148
. Mr Zhyr also criticised the work of the
private investigators Kroll, who had been hired to look into the Gongadze case (see
section 1.7.2 below).

144
145
The Guardian (London), 15 December 2000.
146
The Washington Post, 18 February 2001.
147
148
?Radio Holos Ukrayiny, Kyiv (in Ukrainian), 9 January 2002.
40
After Mr Zhyr failed to be re-elected to parliament in a by-election he claims was
rigged against him (see section 1.6.1 (c) above), Hrihory Omelchenko became chair
of the commission.

In December 2002, Mr Omelchenko sent Prosecutor General Piskun the documentary
evidence on the Gongadze case compiled by the commission, with a request that the
prosecutor address parliament about the matter. However, prosecutors Piskun and
then Vasylyev chose not to appear before parliament. In March 2004, Mr Omelchenko
re-sent the materials to the PGO at the same time as he took out a writ against it for
nonappearance before parliament.

Mr Omelchenko has hitherto been unable to make public in parliament the results of
the commissions work he is forbidden by law to do so until a majority votes for it
in parliament. [But] For two years parliament blocked the commissions report, Mr
Omelchenko says, refusing to include it on the agenda. I make requests that it be
placed on the agenda three to five times every month, Mr Omelchenko told this
investigation.

Nevertheless, he was prepared to summarise his views on the case: There is proof
that, on [Internal Affairs minister Yuriy] Kravchenkos orders, Gongadze was placed
under surveillance by the secret agents of the MIA. The direct organiser of the
surveillance was Kravchenko. This is where we coincided with [Prosecutor General]
Piskun. There are the protocols of the police officers who carried out the surveillance;
the Prosecutor General has confirmed them. There are also the letters from the three
police officers in February 2003.
Pages were torn out [by General Pukach] of the journals which contained this
information [about surveillance]. This is easily proved. Pukach was released precisely
because the next step was to arrest Kravchenko.
With a heavy heart Piskun was forced to carry out the commissions instructions. But
as soon as the commission reached the conclusion that Kuchma was complicit, all
cooperation ceased. Piskun was scared.
A whole series of examinations were conducted by the commission and the
Prosecutor General, up until the point at which the commission concluded that
Kuchma, Kravchenko, Derkach and Lytvyn were to blame. The commission has
concluded that Kuchma organised the disappearance of Gongadze. It has decided that
Kuchma should be impeached. Lytvyn was also complicit.
149

Clearly parliaments ad hoc commission is rent with deep divisions and statements by
its members are highly politicised. This inquiry is concerned that the confrontational
tone adopted by its members is likely to have undermined the commissions work.
However, the commission has enjoyed privileged access to certain information, and it
is the closest approximation to a watchdog placing the work of official investigators
under democratic scrutiny. With the new political situation in Ukraine since Mr
Yushchenkos victory, it is to be hoped that Mr Omelchenko will be able at last to
make public the commissions work and persuade the Prosecutor General to report to
parliament on progress in the case.

149
41
1.7.2 Kroll Associates

In March 2001, the well-known American detective agency Kroll Associates, New
York, was hired by the Working Ukraine party to investigate the Gongadze case.
According to party leader Sergei Tyhypko, he discussed the idea with President
Kuchma, who approved it
150
. Working Ukraine had previously opposed an
investigation into Kuchma, but now they proposed bringing in a foreign firm to do
precisely this
151
.

Neither the Prosecutor General nor any other state or parliamentary organisation
obtained a copy of Krolls report officially, but its conclusions were widely publicized
by Working Ukraine party leaders and Ukrainian representatives in the Council of
Europe
152
. This investigation has also obtained a copy of the original report.

The agencys representatives questioned a huge number of witnesses about the
journalists murder. According to some people who met with the detectives, they
behaved very professionally and sounded unusually well-informed about both the
details of the case and the intricacies of rules of Ukrainian political life
153
. However,
Andrei Konstantinov of the Petersburg Agency for Journalistic Investigations (see
section 1.7.3 (b) below) made a somewhat different assessment: There were only two
Russian speakers among them [the Kroll detectives], and their knowledge of it for
such work was highly problematic -- to say nothing of their knowledge of Ukrainian.
There were a couple of guys who seemed to me to be real policemen, but the others
were, forgive me, something out of Hollywood.
154

Kroll released the results of its investigation in September 2001. It gave no answer as
to who ordered and organised the crime, but stated that president Kuchma was not
involved in it. Neither the circumstances of Gongadzes disappearance nor the
records provide grounds to speak about the presidents involvement, Krolls report
stated
155
. Indeed, Kroll stated that the purpose of its report was solely to investigate
president Kuchmas possible involvement in Gongadzes murder:

The alleged involvement of President Kuchma in the disappearance and death of
Gongadze has been the focus of this investigation. During the course of the
investigation we have become acquainted with alternative theories of the crime which
have been reported in the press, conveyed to us in our interviews, or otherwise
suggested by our investigation. We have not investigated these theories and we do not
possess information or evidence that would support one theory versus another,
156

(emphasis added).

Most of Krolls report consists of a fairly detailed chronology of events during
Gongadzes last day. None of this is contested, however, and by the time the report

150
Itar TASS, 23 March 2001.
151
152
According to Oleksandr Zhyr, Holos Ukrayiny, Kyiv (in Ukrainian), 9 January 2002.
153
Zerkalo Nedeli, Kyiv (in Russian), 29 September 2001.
154
Segodnya, Kyiv (in Russian), 22 February 2002.
155
Krolls report, p 28 (the 53-page document is neither titled nor dated). The report was available in
2001 from Working Ukraines web site, but has since been withdrawn from it.
156
Ibid., p 37.
42
appeared (June 2001) most of it was already known. The core of the investigators
work was an examination of the Melnichenko recordings and the circumstances in
which they were made.

Krolls investigators said they regarded Melnichenkos statement that he had been
working on his own and had recorded conversations on a digital recorder under the
sofa as doubtful. According to Kroll, it was likely the bugging equipment had been in
the presidential office since Soviet times, and that Melnichenko either merely
activated it or acted as a member of a group that used other bugging equipment to
record conversations.

However, they made no conclusive statement as to the authenticity of the recordings.
Krolls audio expert simply raised a number of questions about how they were made
and about the excerpts that they had downloaded from the internet
157
. Kroll therefore
based the conclusions of its report largely on statements by the very people whose
conversations were allegedly recorded by Melnichenko:

[The unreliability of the recordings] coupled with the fact that President Kuchma has
spoken with us and has continued to maintain that he did not make any derogatory
remarks about Gongadze, is the reason we find there is no conclusive evidence to link
the President to the murder.
158

Elsewhere the investigators inability to obtain the testimony of major protagonists of
the recordings is taken as evidence to support their conclusions:

The other participants in the conversations as well as Melnichenko are all
unavailable to explain the circumstances under which the comments were made and
the actions they took as a result. Under these circumstances, the recordings lack the
necessary indicia of reliability to be accepted without other corroboration, of which
there is none.
159

Kuchma denies making the critical statements attributed to him and the other parties
to the conversations are unavailable. Moreover, the President asserts that his words
were edited so as to be taken out of context. Again, no witnesses to the discussions are
available to dispute him.
160

Oleksandr Zhyr, chair of the Ukrainian parliaments ad hoc commission argued that
Kroll was hired by a pro-Kuchma political party, and therefore its conclusions were
suspect. Krolls report also stated that it relied on continued efforts
161
by President
Kuchma to be permitted access to certain witnesses; this amounted to preferential
treatment, according to Mr Zhyrs report to parliament. The commission believed
that, as a result, Krolls report was not reliable
162
.

157
A discussion of the technical failings in Krolls examination of the Melnichenko recordings can be
found in Koshiw, op.cit., pp 221-223.
158
Ibid., p 36.
159
Ibid., p 6.
160
Ibid., p 43.
161
Ibid., p 3, fn 1.
162
Holos Ukrayiny, Kyiv (in Ukrainian), 9 January 2002.
43
Yulia Mostova, deputy editor of the weekly newspaper Zerkalo Nedeli, described
how Krolls detectives first presented their results in public on a live TV link between
Kyiv, Brussels and New York. The reaction of journalists, gathered to hear Krolls
findings, who at the beginning of the link looked genuinely keen to learn results of the
investigation, gradually and obviously changed from disappointment to irony and,
finally, sarcasm with regard to the results. She explained the basis of doubts in
Krolls work as follows:

A pro-presidential party hired Kroll, therefore one can hardly speak of an
impartial and fair investigation;
Being a foreign agency, Kroll was not entitled to carry out investigations on
Ukrainian soil. Consequently, no matter what conclusions they drew and what
evidence they produced, none of it would be admissible in court;
Krolls detectives were denied access to case materials and forensic assessments
163
.

This inquiry concludes that there were weaknesses in Kroll Associates investigation,
the main stated aim of which was to investigate president Kuchmas alleged
complicity in the Gongadze case, rather than to examine the case as a whole. These
narrow terms of reference, Krolls employment by an organisation with an interest in
clearing Mr Kuchmas name, and the selective reporting of the investigations results
substantially devalue the results of the inquiry. Furthermore, it is doubtful that Kroll
had access to all the evidence necessary to make a fully informed judgement on Mr
Kuchmas role.

However, as Ms Mostova has pointed out, Krolls report deserves attention since it is
the first piece of quasi-legal evidence that Mr Melnichenko did not operate on his own
and that recordings were made in a rather different manner to the way he has
described it in public. This issue demands further investigation.

We also draw attention to the inconclusive nature of much of Krolls report. It draws
conclusions from the absence of evidence contrary to its hypotheses, rather than clear
supportive proof. Krolls document raises far more questions that it answers, and
therefore invites further investigations rather than closing them off.

1.7.3 Journalists investigations

1.7.3 (a) Jaroslaw Koshiw

In 2003, J.V. Koshiw, a former deputy editor of the Kyiv Post, published a book in
English devoted to the Gongadze case
164
; an expanded and updated version of the
book was published in Ukrainian a year later.

This is the first and only book-length treatment of the issue. Although it concentrates
on the period up to early 2002, the information it has gathered from published sources
and interviews makes it is an essential guide to journalists and other researchers

163
Zerkalo Nedeli, Kyiv (in Russian), 29 September 2001. Krolls report accepts this point (p 3,
footnote 1).
164
Jaroslaw Koshiw, Beheaded: The Killing of a Journalist, Artemia Press, 2003.
44
seeking a concise introduction to the issues raised by the case. This report has drawn
substantially on the information gathered in the book.

1.7.3 (b) Azhur (St Petersburg)

Staff of the St Petersburg-based Agency for Journalistic Investigations (Agenstvo
zhurnalistskikh rassledovanii, or Azhur) were present in Kyiv at the time of
Gongadzes disappearance. They had been invited to Ukraine to take part in training
journalists by IREX Pro-Media, an American non-governmental organisation. Formed
in 1996 by the crime journalist and novelist Andrei Konstantinov, the agency first
started working on the Gongadze case after a chance meeting former Crimean Prime
Minister Sergei Kunytsyn. It then continued its investigations on the invitation of
former Ukrainian Prime Minister Valery Pustovoitenko, leader of the pro-presidential
Peoples Democratic Party.

The first results of Azhurs investigations were published on its website
www.fontanka.ru on 11 November 2000, before the agencys researchers found out
about the discovery of Gongadzes body in Tarashcha. A series of articles appeared
on this site between 11 and 20 November
165
. A 140-page report in Russian also
appeared in 2001. It was not published, but was circulated to a small number of
NGOs. A copy of this, unbound and undated, has been seen by this inquiry
166
.

In March, 2001, Mr Konstantinov gave a series of interviews to the press in Kyiv,
which were the subject of intense public interest. A year later he published a novel in
Russian, The Investigator (Rassledovatel), loosely based on the Gongadze case
but with the names of the main protagonists slightly altered. The foreword to the
novel states that the book is a work of fiction, not a literary version of the agencys
research: The real Gongadze case served only as the informational basis for writing a
work of fiction. In fact, everything happened DIFFERENTLY [sic], and not quite
as described in this novel.
167

However, from Azhurs first publication on 11 November 2000, the agency held to a
consistent explanation of Gongadzes death. Gongadze, Azhur claimed, was deeply
involved in black PR black propaganda on behalf of major business interests.
Gongadze was murdered because of these activities by people who were already in
possession of Melnichenkos recordings; they wanted the crime to correspond to ex-
President Kuchmas private conversations to make it look as though the president was
to blame
168
. As Mr Konstantinov told the press in March 2001: The more we
worked, the more we clearly we understood that Kuchma had nothing to do with it,
(Segodnya, Kyiv (in Russian), 22 February 2002). The murder had clear political
motives, he said.

165
www.fontanka.ru/60799 , www.fontanka.ru/60800 , www.fontanka.ru/60801 ,
www.fontanka.ru/60802, www.fontanka.ru/60803 , www.fontanka.ru/60804 , www.fontanka.ru/60805
, www.fontanka.ru/60806, www.fontanka.ru/60787
166
Delo Gongadze, n.d. However, a four-page addendum at the back of the report is headed April-
May, suggesting the document was compiled in February-March 2001. The addendum takes the place
of the Preliminary Conclusions promised in the contents list of the report, but which are absent.
167
A. Konstantinov and A. Novikov, Rassledovatel: Predlozhenie Krymskogo premera [Investigator -
The Crimean Premier's Proposal], St. Petersburg, 2004, p 6.
168
Delo Gongadze, op. cit., p 139.
45
Azhurs suggestion that Gongadzes murder was committed by the people who
controlled the Melnichenko recordings was frequently referred to by official
investigators in the Gongadze case (see section 5 above). Most controversially,
however, Azhur claimed that Olena Prytula, the editor of Ukrayinska Pravda website
and the person who last saw Gongadze alive, was unwittingly involved with those
who planned to murder Gongadze, and therefore knew their names; she kept quiet for
fear of what might happen to her.

For the purposes of this inquiry, we shall examine the materials in Azhurs 140-page
report Delo Gongadze, where the evidence for these conclusions is reproduced in
full and we can assess the agencys methods.

The unpublished document consists mainly of quotes taken from interviews with
witnesses, interspersed with the telephone records of certain protagonists and
followed at intervals by Azhurs comments. (The interviews are reproduced in full at
the back of the report, making up almost half its volume.) The editing suggests that
this is a draft, not a finished report: for example, the same quote from Ms Prytula is
reproduced three times within five pages of the report. There are numerous instances
of such repetition.

The report is notable for the way in which it extrapolates from seemingly minor
details to make far-reaching conclusions. For example, Ms Prytula maintains that
Gongadze briefly left her apartment to buy some cat food just a few minutes before he
left the apartment for the last time. Azhur was unable to find anyone who would
confirm Ms Prytulas statement, which -- together with much speculation about the
business interests that were backing Gongadze and Ukrayinska Pravda -- became the
basis for Azhurs conclusion that she was involved in a complex plan to lure
Gongadze out of her apartment.

Prytulas behaviour [after immediately Gongadze had left her apartment] is evidence
that she was in no way a conscious participant in his abduction, the report states
(p.35). But on the basis of the cat food incident, Ms Prytulas use of the internet for 58
minutes on the night of Gongadzes disappearance, and the unproven assumption that
Gongadze was involved in black propaganda for certain business interests -- the report
accuses her of knowing the people who kidnapped and killed Gongadze, but of being
too scared to say
169
.

The report also makes much of the telephone records that Azhurs investigators
managed to obtain. In particular, a phone call was made from Tarashcha to Ms
Prytulas apartment before Gongadzes disappearance, and from Tarashcha to the
offices of Ukrayinska Pravda after he disappeared. There were also calls from a
Tarashcha factory to Czechoslovakia in August and November, at about the same
time as Melnichenko was arranging his visa to escape there. The report states that this
cannot be a coincidence
170
.

Finally, many telephone calls were made between Lavrentiy Malazoniya, a close
colleague of both Gongadze and Prytula, and numbers differing by one digit only. The

169
Ibid., pp 34-36.
170
Ibid., p 60.
46
report states: According to our information all these numbers belong to [Kyiv
businessman Hryhoriy] Surkis people.
171

These telephone calls became the object of intense speculation in the Ukrainian media
and had a significant impact on public opinion. However, much remains to be
explained about Azhurs use of the telephone records it obtained. For example, the
Kyiv journalist Oleksiy Stepura obtained a copy of Mr Malazoniyas telephone
records used by Azhur. Mr Stepura claims that the telephone numbers that differed by
one digit were those of the workplace of Mr Malazoniyas girlfriend -- a major
television station. All calls in or out of the station were automatically routed via
phone lines that differed by one digit
172
.

Moreover, the call from Tarashcha to Ms Prytulas apartment came from a caller who
dialled the wrong number, according to the Kroll detectives who appear also to have
been given these private telephone records. Kroll concluded that the caller may have
been trying to get through to Kyivs central market, whose number differs by only
two digits from Ms Prytulas
173
.

Ms Prytula commented on Azhurs investigation as follows: The first time I
communicated with the Petersburg journalists I honestly told them everything I knew.
But after the publication of their results I felt like I needed immediately to have a
wash. Then they phoned me and apologised and promised to publish corrections, but
this they didnt do. I dont trust them any more and want nothing to do with them.
174

Some of the information revealed by Azhur undoubtedly requires further
investigation. Azhur was invited to appear before parliaments ad hoc commission on
Gongadze, to which it handed over some (but not all)
175
of its documents. It remains
for these documents to be made public so they can be given a full and balanced
assessment.

According to the information available to this inquiry, there were serious flaws in the
methods of Azhurs research and in the way it was presented to the public. The terms
of reference on which it worked, the way in which it was financed and the methods it
used are unclear. In the light of Mr Pustovoitenkos strong public support for the
investigation, the lack of any indication by Azhur about exactly what his relationship
was to the inquiry inevitably compromised its results
176
.

Azhur assembled original information which might be of considerable importance to
any investigation of the Gongadze case. However, it presented this information in
unsuitable forms -- brief and speculative internet articles, a novel, and a press

171
Ibid., p 42.
172
173
Krolls report, p 27.
174
Fakty i Komentarii, Kyiv (in Russian), 28 March 2001.
175
Konstantinov quoted in Segodnya, Kyiv (in Russian), 22 February 2002.
176
Asked about the wisdom of holding a press conference together with such a high-ranking politician,
Mr Konstantinov told this investigation: If there was something incorrect about the press
conference, do you think I would have taken part in it? Pustovoitenko was simply one of its initiators.
Several Ukrainian politicians wanted to be associated with our investigations at different times, but
they quickly lost interest. They saw that it didnt coincide with their interests. Telephone interview, 19
January 2005.
47
conference in the company of a leading Ukrainian politician (Mr Pustovoitenko).
Azhur also circulated to a number of NGOs an unpublished, undated report which
shows signs of being hurriedly put together. Despite this unsatisfactory procedure and
its untransparent research methods, Azhur made far-reaching conclusions on the basis
of speculation as to the significance of its findings. Hence Azhur made it easy for its
conclusions to be appropriated by certain political interests at the peak of the political
crisis of 2001 that was caused by the Gongadze case.

Suspicions of political interference in the inquiry can only be laid to rest, and a proper
assessment of the information can gathered, if its results are published and a proper
explanation given of its methodology and conclusions.

At the time of Azhurs research, the agency placed little emphasis in its public
pronouncements on the failures of official investigations into Gongadzes
disappearance. Four years later, in a brief telephone interview for this inquiry, Mr
Konstantinov said: I was amazed at the unprofessionalism of the organs of law and
order. The reasons for this, he said, were that a proper investigation would have
uncovered details unfavourable to the authorities: Ethical questions would have
arisen none the less if the organs of law and order had worked properly. Crudely
speaking, Kuchma didnt have Gongadze killed, but other unpleasant aspects would
have come out. It was more advantageous for them not to investigate.
177

1.7.3 (c) Reporters sans frontires

The Paris-based NGO Reporters sans frontires (RSF) sent a mission of inquiry to
Kyiv from 5 to 12 January 2001. In this short period it took the testimonies of dozens
of people (family, friends, experts, doctors, judges and jurists, civil servants and
journalists), and also met Mr Kuchma, the head of the State Council for Security and
Defence Evgen Marchuk, Minister of Internal Affairs Kravchenko, head of the SBU
Derkach, presidential spokesperson Martyninko, head of the tax department Azarov,
chair of the parliamentary commission of inquiry Lavrynovych, and the members of
parliament of the different parties represented on this commission of inquiry.

Published ten days after the RSF delegation left Ukraine, its 15-page report,
Mutilation of the Truth: Inquiry into the Murder of Journalist Georgy Gongadze, is a
model of journalistic investigations of this type and stands in sharp contrast to the
work of Azhur (see above). The report is clear, logical, concise and free of speculative
hypothesising.

The RSF mission concentrated on the conditions of the journalists disappearance,
attempts to intimidate him in the weeks preceding his disappearance, and steps taken
in the official inquiry, both before and after the discovery of the body on 2 November.
It describes why Gongadzes journalism might have made him a target, how he was
shadowed before he went missing (an issue seemingly overlooked by Azhur), how the
inquiry into the disappearance had led nowhere, how identification of the body was
obstructed (also overlooked by Azhur), and the concerns raised by Melnichenkos
recordings. It also lists detailed examples of intimidation of the media over the
Gongadze case (see below). None of these points have yet been shown to be mistaken.

177
Ibid.
48

The RSF mission noted that there had been an accumulation of mistakes, of
exceptional gravity, made throughout the judicial inquiry. It appears that the
investigation was carried out primarily with the intention of protecting the executive
from the serious accusations made against it, rather than for the purpose of uncovering
the truth. RSF also condemned the treatment by the authorities of Gongadzes family
and friends.

This inquiry believes that RSFs investigation must be a reference point for any
serious investigation of the Gongadze case. While it does not and cannot claim to
answer all the questions raised by the case, the evidence it compiled deserves at least
to be taken seriously.

1.7.3 (d) Television documentaries

Two television documentaries broadcast in March 2002 received a great deal of
attention, partly because they appeared on the eve of elections in Ukraine during a
period of intense political interest. They both told very different stories, however.

PR, by American producer Peter Powell, presented by Financial Times
correspondent Charles Clover, and broadcast on ICTV, a Ukrainian channel, argued
that the same plotters were behind both the Gongadze and Melnichenko affairs. Mr
Powell and Mr Clover drew on the testimonies of Andrei Konstantinov (see above)
and Oleksiy Stepura, a Kyiv journalist known for his opinion that the people who
made the recordings were the same who killed Gongadze. The documentary also
interviewed the head of Kroll Associates (see above)
178
.

While stressing the way in which much journalism had become financed and
therefore controlled by business interests, and concluding that Gongadze was a
willing tool of these interests, it ignored the tradition of independent campaigning
journalism in the country. There was no mention of state and business hostility to
good journalism in Ukraine, an important part of the background to Gongadzes
murder. Nor was there any mention of the high level of violence and repression
against journalists in Ukraine, among the worst in Europe, or that Gongadzes murder
was one of a succession of murders of journalists.

PR dealt with the Melnichenko recordings in a one-sided manner. It stated that they
are a montage, manipulated to change the meaning of the conversations recorded. As
we have seen, however, authoritative experts have ruled out such manipulation. The
film also ignored other evidence that the conversations about Gongadze on the tape
were genuine, such as the identification by people in the political elite in Kyiv of
voices on the tape, and the correspondence of conversations on the tapes with real
events. The documentary proposed that Melnichenko could have been part of a
conspiracy to discredit the president, of which the murder of Gongadze itself was a
part. PR proposed this conspiracy theory without seriously testing its logic or
quoting the large number of authoritative observers of the case who could refute it.

178
Koshiw, op. cit., pp. 224-228.
49
The makers of PR faced, and denied, accusations that the films approach had been
influenced by the pro-Kuchma stance of ICTV, the channel that aired the film and
was partly controlled by Viktor Pinchuk, a leading Ukrainian businessman and son-in-
law of ex-President Kuchma. Viktor Yushchenko, then leader of the Ukrainian
opposition, claimed that the film had been ordered (i.e. paid for by local business
interests with a view to influencing its content). Charles Clover, one of the film
makers, strongly denied this allegation, stating that he was dismayed that people
believed he would need to be paid to believe in Kuchmas lack of complicity in
Gongadzes murder
179
.

PR was project financed by a US-based company, East European Media Project,
which, as far as we can ascertain, has made no films before or since. In June 2002,
Clover was contacted by the NUJ (of which he was not a member) and invited to
respond to concerns about the film raised with the unions ethics committee by an
NUJ member familiar with events in Ukraine. One of the suggestions made was that
the film makers clarify the nature of the relationship between East European Media
Project, ICTV and other business entitles related to Pinchuk, in order to ensure the
highest journalistic integrity, uphold the reputation of western journalism in Ukraine
and rebut Yushchenkos accusations. Clover declined to respond to, or discuss, the
points raised
180
.

A quite different documentary with a different approach, Killing the Story, was
produced in March 2001 by the BBC and presented by Tom Mangold. It took its
themes from Melnichenkos recordings. It interviewed Mr Yelyashkevych and Mr
Podolsky, attacks on whom matched the tapes (see section 1.5.3 above). It also
interviewed Oleh Yeltsov, a high-profile investigative journalist who claimed to have
been persecuted because of his work. The programmes interviews of deputy
Prosecutor General Bahanets and President Kuchma were hostile.

In something of a scoop, the BBC obtained a lengthy interview with Melnichenko
himself, who described the wider context of the crimes discussed by President
Kuchma with other high-ranking figures, and told how he had been offered six million
dollars by Kyiv to buy his silence
181
.

In September 2004, a third television documentary, No-Go Area, presented by
Volodymyr Arev and shown on [a Ukrainian] opposition station Channel 5,
introduced the possibility that the Russian secret services were involved in
Gongadzes murder. The programme based this conclusion on interviews with SBU
General Valeriy Kravchenko, who defected to Germany in 2004, and the former
Ukrainian consul in Munich Volodymyr Tsvil, who now lives in Germany. The two
men said that that Melnichenko was likely to have had contact with the Russian
Federal Security Service.

None of the television documentaries added very much new or original to
investigations of the Gongadze case, but rather popularised the results of previous
investigations.

179
Kyiv Post, 21 March 2002.
180
Correspondence between the NUJ and Charles Clover has been seen by this inquiry.
181
A transcript of the documentary is available at
http://news.bbc.co.uk/hi/english/static/audio_video/programmes/correspondent/transcripts/1932609.txt
50

1.8 Conclusions and recommendations

This Preliminary Report concludes:

First, that there has been a catalogue of elementary failures, and breaches of
procedure and law, in the investigation into the Gongadze case by the Ukrainian
Prosecutor Generals office. There is a mass of contradictions in public
announcements by the investigating authorities. There has been broad political
collusion within the Ukrainian establishment to obstruct and divert the investigation.
The investigating authorities have deliberately obstructed and confounded the
investigation over a long period of time, and also made inconsistent announcements,
often on the basis of fabricated solutions to the case, that betrayed an unwillingness
to solve it. The purpose of these announcements was the cynical manipulation of
public opinion inside Ukraine and internationally. This public relations
management of the investigation was undertaken not only by the Prosecutor
Generals Office but also by other senior politicians and officials, suggesting political
collusion.

Second, that there is a substantial body of evidence suggesting that the sections of the
Melnichenko recordings that concern the Gongadze case are a genuine record of
conversations involving senior Ukrainian political figures. However, the Prosecutor
Generals Office made contradictory accusations that the recordings were fabricated
by Ukrainian politicians, and took inconsistent actions in relation to these accusations.
It also expressed arbitrary and inconsistent attitudes to the various expert
examinations of the recordings. And yet no serious investigation of the Gongadze
case can be completed without examining these sections of the recordings and the
nature of the connection between them and Gongadzes murder.

Third, that official investigations into Gongadzes surveillance in the weeks leading
up to his death were characterised initially by an unwillingness to investigate central
pieces of evidence, by obstruction of the judicial process and by a mass of
contradictory public statements. In 2003, progress was made on this aspect of the
case, but abruptly halted again after the dismissal of Mr Piskun as Prosecutor General.

Fourth, there has been a series of cases of intimidation and harassment of public
officials who, in pursuance of their duties, became involved in some way with the
Gongadze case, and of media that attempted to report the case in its early stages,
pointing to a considerable network of forces working to obstruct the investigation of
the case and, again, to political collusion.

We also note that high-profile unofficial investigations that dismissed any
involvement by Ukrainian government officials in Gongadzes murder were based on
highly unsatisfactory methods. Moreover, the Ukrainian parliaments ad-hoc
commission on the Gongadze case had insufficient powers in law to do its work, and
its results have been kept hidden by the misuse of parliamentary procedure, again
pointing to political collusion to obstruct the investigation of the Gongadze case.

The Gongadze case will be a litmus test for Mr Yushchenkos promises to
democratise Ukraine and fulfil the expectations of the crowds that brought him to
51
power. Continued failure to resolve it encourages abuses of power to silence and
intimidate journalists.

Without answers to the questions posed by the case:
No citizen can have confidence in parliament, the judiciary and the executive;
No journalist can feel safe to expose abuses of power;
There can be no talk of genuine free speech in Ukraine.

The case has important implications, too, for international civil society. There is
prima facie evidence that, shortly before Gongadzes death, the Ukrainian president
and other senior politicians discussed harming him. The fact that, more than four
years later, this evidence has not been investigated and no framework has even been
established for such an investigation, suggests that those in power still enjoy an
unacceptable level of impunity with respect to alleged intimidation of journalists by
murder and other violent means. For this reason we have made recommendations to
the Ukrainian authorities, international bodies and civil society.

We therefore call on president Yushchenko, the Prosecutor Generals Office and the
government of Ukraine:

To bring together and coordinate investigations into the possible surveillance of
Georgy Gongadze, the allegations of illegal armed formations operating within
the Ministry of Internal Affairs, and the Melnichenko recordings and the
issues raised by them;
To accept the proposal made last year by journalists organisations and NGOs
for the expert examinations of the Melnichenko recordings to include
observers from civil society;
To devise a transparent form of investigation of the nature of the links between
the Melnichenko recordings and the Gongadze case;
To initiate a public inquiry, in an appropriate form under the Ukrainian
constitution, into the broad issue of political collusion in the obstruction of
justice in the Gongadze case;
To ensure that such an inquiry covers the possible political involvement in the
case suggested by the Melnichenko recordings, the apparently deliberate
obstruction of the original investigations into the case, the presentation of false
information about these investigations to the public and to international
institutions, and intimidation of public officials who dealt with the Gongadze
case.

We call on the Ukrainian parliament:

To hear the report of its ad-hoc commission on the Gongadze case without
further delay and publish its findings and accompanying documentation in
full.

We call on the Council of Europe and other international bodies such as the UN and
OSCE:
52

To support the Legal Affairs Commission of the Parliamentary Assembly of the
Council of Europe in following closely and reporting on legal and procedural
developments in the case, with regard to its wider aspects, as outlined in the
Motion of Resolution to the Parliamentary Assembly by Ms Hanne Severinsen
and others (see Appendix IV);
To promote similar monitoring by other international bodies;
To urge the Ukrainian government to commit itself to a broad examination of all
aspects of the case as outlined above.
To develop mechanisms for rapid and concerted international action in the case
of journalists killed for apparently political motives;

We call on the International Federation of Journalists, journalists organisations and
NGOs committed to freedom of speech:

To develop an international campaign around the issue of impunity of senior
political figures in respect of allegations of violent intimidation of journalists.

The International Federation of Journalists
The National Union of Journalists of the UK and Ireland
The Gongadze Foundation
The Institute of Mass Information

January 2005

APPENDICES, REPORT 1

Appendix I: The work of the inquiry, 2003-2005

This Preliminary Report was drafted by David Crouch (NUJ) and Simon Pirani
(NUJ). The research for the report, and assembly of the internet archive, was carried
out by David Crouch. Robert Shaw (IFJ), Alla Lazareva (IMI) and Myroslava
Gongadze (Gongadze Foundation) participated in the research and campaigning.
Documentation was provided by IMI, the Gongadze Foundation, the BBC, the
Ukrayinska Pravda website and by a number of journalists. Thanks are due to Sergei
Taran and colleagues at IMI, Mike Holderness (NUJ), Gavin Knight (NUJ), J.V.
Koshiw, and others who have assisted us.

Interviews were carried out in Kyiv by David Crouch and Simon Pirani during a visit
in September 2004. We interviewed Andriy Fedur, Oleksandr Lavrynovych, Ihor
Lubchenko, Hrihory Omelchenko, Sergiy Taran, Valentina Telychenko, Ihor
Vorotyntsev, Nikolai Zamkovenko and Oleksandr Zhyr. The Prosecutor General and
the Minister of Internal Affairs declined to be interviewed.

All the work of the inquiry has been funded by the four organisations sponsoring it.
53
In order to produce a final report, under the terms of reference used, the authors
consider that at a minimum further work would be needed, as follows:

! In relation to the investigation carried out by the Prosecutor Generals Office,
interviews to be sought with Prosecutor General Piskun, investigators
Bahanets, Harbuz, Shokin and Vynokurov, and former Prosecutor General
Potebenko;
! In relation to the Melnichenko recordings, interviews to be sought with
Major Melnichenko, Mykola Rudkovskyy, experts who have worked on the
tapes, and representatives of Kroll Associates;
! In relation to the other non-official investigations, interviews to be sought with
representatives of Azhur and Kroll.

We should also emphasise that, solely due to constraints of time and funding, we have
not had the opportunity to interview formally some Ukrainian journalists and others
who have a close knowledge of the case, and hope this will be possible also.
The completion of such research, and drafting of a final report, will be dependent on
the availability of resources.

Appendix II:
Chronology of investigations into
the murder of Georgy Gongadze, 2000-2004

2000

September

On the instructions of the Prosecutor General, the Security Service of Ukraine (SBU)
and the Ukrainian Internal Affairs Ministry (MIA) carry out investigations on
surveillance of Gongadze; prosecutor interrogates policemen allegedly involved in
surveillance, all deny it categorically.

The Verkhovna Rada (Ukrainian parliament) votes to establish a 15-strong committee
to investigate Gongadzes disappearance, led by Oleksandr Lavrynovych of Rukh.

November

Post mortem conducted on the body.

December

Prosecutor general unites criminal investigations into Gongadzes disappearance, into
the corpse found in a forest in Tarashcha, and into libel against top officials accused
of committing severe crimes united into one single investigation (7 December).
Parliament asks the International Press Institute (Vienna) to examine the Melnichenko
recordings.
54
2001

January

Prosecutor General Potebenko presents to parliament his report on the Gongadze
investigation (10 January).

Russian experts conclude that recordings of alleged conversations between ex-
president Kuchma and colleagues about Gongadzes disappearance were fake;
prosecutor ends investigation of top officials; Melnichenko charged with criminal
slander.

The Judicial-Medical Centre of the Health Ministry issues its examination of the
Tarashcha corpse.

DNA tests by Russian forensic experts identify a 99.6 per cent chance that the
decapitated body is Gongadzes (a month later the Russian experts raise their estimate
to 99.9 per cent).

Mykola Rudkovskyys flat searched, audio recordings and computers seized.

Reporters sans frontires issue their report, The Mutilation of the Truth.

The Council of Europe issues two reports calling for independent investigations of the
case.

February

Prosecutor General Potebenko launches murder investigation into Gongadzes
disappearance.

International Press Institute concludes that the Melnichenko recordings are likely to
be genuine.

European Union delegation demands a robust, clear and thorough investigation.

March

Prosecutor Generals Office (PGO) announces it is investigating the possibility that
criminals, one nicknamed Cyclops, killed Gongadze.

Parliament announces results of German tests on Tarashcha corpses DNA, claims
Tarashcha corpse is not Gongadzes.

The Working Ukraine political party invites US investigators Kroll to examine the
case.
55
April

Forensic experts from the FBI and the US military go to Ukraine to help identify the
corpse.

May

The FBI confirms that the body belonged to Gongadze.

June

PGO asks the Council of Europe to help with one more examination of the Tarashcha
body; Reporters sans frontires proposes using an experienced French expert.

Kroll delivers the results of its investigation, clearing ex-president Kuchma.

July

PGO rejects involvement of French expert.

PGO is investigating the possibility that Gongadze was killed in a car crash.

October

Oleksandr Zhyr becomes chair of ad hoc parliamentary commission investigating
Gongadze.

December

Council of Europe calls for an international commission to investigate the case.

2002

January

Ad hoc parliamentary commission on Gongadze releases brief report on Kroll
findings.

February

US firm Bek Tek issues results of examination of the Gongadze sections of the
Melnichenko recordings, claims they are genuine.

March

US-produced TV documentary PR broadcast, claiming to support ex-president
Kuchmas innocence in the affair.

BBC documentary Killing the Story premiers in London.
56
April

Prosecutor General Potebenko resigns.

July

Svyatoslav Piskun appointed as Prosecutor General, sacks Bahanets, appointing
Viktor Shokin to lead the Gongadze investigation.

Prosecutor General Piskun announces new Gongadze investigation, including new
third-country tests on the Melnichenko tapes and new DNA tests.

Hrihory Omelchenko becomes chair of parliamentary ad hoc Gongadze commission.

August

PGO announces it is investigating:

The complicity of criminal groups, including Kyiv-based criminal groups led by
Pryshch and Kysil;

A group of three police officers from the investigative group at the Ukrainian MIAs
department to combat organized crime, who are accused of kidnapping and murdering
people, burying their victims bodies in Kyiv Region.

British foreign minister calls for international commission on Gongadze.

September

US Justice Ministry carries out another examination of the Melnichenkos recordings
and confirms their authenticity.

Prosecutor General Piskun announces a special international investigation group to
investigate the Melnichenko recordings and their relevance to the Gongadze case;
experts from the USA, France and Great Britain will be invited to take part.

French expert to examine Tarashcha corpse with Prosecutor Generals approval.

November

Institute of Forensic Medicine in Lausanne (Switzerland) sends a letter to the
Prosecutor-Generals Office of Ukraine inviting it to take part in an expert
examination of the samples received by French expert Jean Rivolier.

British expert Peter French, hired by private detectives the Arkin Group (New York)
carries out repeat analysis on the extracts examined by Bek Tek, concludes they
cannot be proved to be either authentic or false.
57
2003

January

Parliamentary ad hoc commission submits report to PGO.

April

Parliamentary ad hoc commission claims Lausanne tests incomplete because they
did not examine hair samples (The Swiss test showed 99.991 per cent certainty that
the corpse was Gongadze).

PGO asks the US Department of Justice to hold a joint Ukrainian-US examination of
the Melnichenko recordings concerning Gongadze.

July

PACE (Parliamentary Assembly of the Council of Europe) special envoy in charge of
the Gongadze case, Hans Kruger, issues a report praising the PGOs sincere efforts
to resolve the case according to internationally accepted standards.

September

Mr Piskun commissions another expert examination of the Melnichenko recordings
Mr Piskun: Gongadze investigation at the final stage.

October

Mr Piskun dismissed as Prosecutor General. Replaced by Hennady Vasylyev who
dismisses Mr Piskuns deputies working on the Gongadze case.

2004

January

Prosecutor General Vasylyev announces additional tests in the Gongadze case,
including the Melnichenko recordings, will be carried out by the Kyiv Forensic
Science and Research Institute with the involvement of foreign experts.

Representatives of the PACE monitoring committee disappointed on progress: It
looks as if this issue was simply shelved.

May

Mr Vasylyev announces that Everything has been started from a clean slate in the
Gongadze case .

58
July

MIA launches internal investigation into Gongadze surveillance.

September

TV documentary No-Go Area gives detailed new version of Gongadze murder.

Kyiv Forensic Studies Research and Science Institute declares Melnichenko
recordings are fabrications; PGO says doctoring of recordings began on 18
September 2001.

October

Detailed new research identifies weaknesses and omissions in investigations into the
Gongadze case; the research is sponsored by the International Federation of
Journalists, National Union of Journalists, Institute of Mass Information, Gongadze
Foundation.

November

Mr Vasylyev sacked as Prosecutor General.

December

Mr Piskun re-instated as Prosecutor General, re-appoints former Gongadze
investigators.

Appendix III:
Organisations and individuals supporting this inquiry

The inquiry has been organised, funded and undertaken by the International
Federation of Journalists, the National Union of Journalists of the UK and Ireland, the
Gongadze Foundation and the Institute of Mass Information.

Those who have expressed support include:

Aidan White, International Federation of Journalists (IFJ)
Alla Lazareva, Institute of Mass Information (IMI)
Jeremy Dear, National Union of Journalists of the UK and Ireland (NUJ)
Myroslava Gongadze, The Gongadze Foundation
Robert Mnard, Reporters Without Borders (RSF)
Chris Warren, Media, Entertainment and Arts Alliance (MEAA), Australia
Ann Cooper, Committee to Protect Journalists (CPJ)
59
Johann Fritz, International Press Institute (IPI)
Jean-Paul Marthoz, Human Rights Watch (HRW)
Andrew Puddephatt, ARTICLE 19
Arnold Amber, Canadian Journalists for Free Expression (CJFE)
Oleg Panfilov, Center for Journalism in Extreme Situations (CJFES)
Hans Verploeg, Netherlands Association of Journalists (NVJ)
Mark Bench, World Press Freedom Committee (WPFC)
Timothy Balding, World Association of Newspapers (WAN)
Suman Basnet, World Association of Community Radio Broadcasters (AMARC),
Asia-Pacific
Adriana Len, Instituto Prensa y Sociedad (IPYS), Peru
Juliana Cano Nieto, Fundacin para la Libertad de Prensa (FLIP), Colombia
Owais Aslam Ali, Pakistan Press Foundation (PPF)
Ibrahim Nawar, Arab Press Freedom Watch (APFW)
Luckson Chipare, Media Institute for Southern Africa (MISA)
Carl Morten Iversen, Norwegian PEN
Azer Hasret, Central Asian and Southern Caucasian Freedom of Expression
Network (CASCFEN)
Kwame Karikari, Media Foundation for West Africa (MFWA)
Edetaen Ojo, Media Rights Agenda (MRA)
Robert Russell, Cartoonists Rights Network (CRN)
Shobhakar Budhathoki, Center for Human Rights and Democratic Studies
(CEHURDES), Nepal
Karin Deutsch Karlekar, Freedom House (FH)
Corina Cepoi, Independent Journalism Centre (IJC), Moldova
Professor O. Andriewsky, Chair, Department of History,
Trent University, Peterborough, Ontario
Zenia Chernyk, Chair, Ukrainian Federation of America,
Prof. Keith Darden, Yale University
Marta Dyczok, DPhil (Oxon), Associate Professor,
Departments of History and Political Science,
University of Western Ontario
Bill Emmott, Editor, The Economist
Ihor Gawdiak, Ukrainian Federation of America
Neil Gerrard, MP (United Kingdom)
Prof. Alexandra Hrycak, Associate Professor,
Department of Sociology, Reed College
60
Rohan Jayasekera, Index on Censorship
Jaroslaw Koshiw, Author of "Beheaded: The Story of a Journalist"
Askold Krushelnycky, Correspondent, Radio Free Europe
Dennis McShane, MP, Minister for Europe (United Kingdom)
Paschal Mooney, Council of Europe Parliamentary Assembly
Dr. Natalia Pylypiuk, Associate Professor Modern Languages and Cultural Studies
University of Alberta, Edmonton. Member of the Executive of the Canadian
Association of Slavists
Roman Senkus, President, Canadian Association for Ukrainian Studies, Canadian
Institute of Ukrainian Studies, Toronto Office, University of Toronto
John Simpson, BBC World Affairs Editor
Morgan Williams, Executive Director, Ukrainian Federation of America

Appendix IV:
Motion for a resolution of PACE,
Doc. 10330, 15 October 2004

Motion for a resolution presented by Mrs Severinsen and others

This motion has not been discussed in the Assembly and commits only the members
who have signed it

1. The Assembly is seriously concerned by the lack of any progress in the
investigation of the murder of the Ukrainian journalist Georgiy Gongadze. September
16, 2004 was the fourth anniversary of his unsolved disappearance and brutal murder.

2. The Assembly regrets the fact that, more than a year after the report presented by
the independent expert it had designated, the Ukrainian authorities have not succeeded
in finding and bringing to justice those guilty of this particularly horrible crime.

3. Moreover, there are clear indications that the third Prosecutor General appointed to
deal with this case is not pursuing the investigation in an appropriate and timely
manner. In this respect, the Assembly refers to the findings of the representatives of
the International Federation of Journalists, the National Union of Journalists of the
UK and Ireland, the Institute of Mass Information and the Gongadze Foundation,
which were issued on October 1, 2004, and shares the concerns expressed therein.

4. The Assembly regrets that the Verkhovna Rada inquiry commission was prevented
from presenting its report on Gongadze and Alexandrov cases to a plenary session of
the parliament.

5. Stressing the importance of the Gongadze case for freedom of speech in Europe
and democracy in Ukraine, the Assembly decides to follow closely and report on the
61
legal and procedural developments of the investigation of the Gongadze case, in
particular as regards:
- the contradictory statements of the PGO on the so-called Melnichenko tapes;
- the failure of the Ukrainian authorities to investigate the surveillance of Gongadze
by MIA staff in the weeks prior to his murder and possible connections between this
surveillance and the murder;
- the possible connections between the Gongadze case, that of former police officer
Ihor Honcharov (deceased), and criminal activity within the ministry of internal
affairs;
- the recent announcement that a suspect is in custody, and the failure to bring this
suspect to court.

Signed [1]:

SEVERINSEN, Hanne, Denmark, LDR
ARVELADZ, Giorgi, Georgia, NR
ATES, Abdlkadir, Turkey, SOC
BARGHOLTZ, Helena, Sweden, LDR
BINDIG, Rudolf, Germany, SOC
BRUCE, Malcolm, United Kingdom, LDR
GORIS, Stef, Belgium, LDR
HERKEL, Andres, Estonia, EPP/CD
HOLOVATY, Serhiy, Ukraine, LDR
JAKIC, Roman, Slovenia, LDR
JARAB, Josef, Czech Republic, LDR
JUDD, United Kingdom, SOC
LINDBLAD, Gran, Sweden, EPP/CD
LLOYD, Tony, United Kingdom, SOC
MIKKELSEN, Lars Kramer, Denmark, SOC
NMETH, Zsolt, Hungary, EPP/CD
PANGALOS, Theodoros, Greece, SOC
PETROVA-MITEVSKA, Eleonora, the former Yugoslav Republic of
Macedonia, SOC
POURGOURIDES, Christos, Cyprus, EPP/CD
RUSSELL-JOHNSTON, United Kingdom, LDR
TEVDORADZE, Elene, Georgia, EDG
TOSHEV, Latchezar, Bulgaria, EPP/CD

62
2 THE INSTIGATORS ARE GETTING AWAY
(Report 2, September 2005)

Introduction

This second report on the case of Georgy Gongadze, commissioned by the
International Federation of Journalists, the Institute of Mass Information (Kyiv), the
Gongadze Foundation and the National Union of Journalists of the UK and Ireland,
updates our first report published in January 2005
182
. It reviews developments in the
investigation of the case between January and September 2005. Our main conclusion,
set out in the last section, is that the investigation of the process by which Gongadzes
murder was ordered has suffered serious setbacks.

Progress has been made in bringing to trial officers of the Ministry of Internal Affairs
(MIA) who allegedly participated in Gongadzes kidnap, and were present when he
was murdered. But the investigations failures with respect to the links between these
direct perpetrators and those who ordered the murder are so blatant and numerous that
they can most likely be explained as the result of continued political interference and
resistance. Senior political figures have stated publicly that the instigators of
Gongadzes murder are known to investigators, but no details have been made public;
this has left the impression that these statements were part of the public relations
management of the investigation, which was meanwhile directing its focus away
from the instigators.

Our most serious concerns relate to the case of General Oleksiy Pukach, who was
named by the Prosecutor Generals Office as the ringleader of the gang that killed
Gongadze. It appears that, in June this year, a leak of information from the Prosecutor
Generals Office (PGO) enabled Pukach to evade detention by the security forces in
Israel; this leak, which apparently allowed the escape of the person linking the direct
perpetrators of the murder with those who ordered it, does not appear to have been
investigated; the circumstances of Pukachs original release from prison in November
2003, and the possible criminal liability of those responsible, appear not to have been
re-examined. Negligence by the PGO and other agencies with respect to the death in
March this year of another person possibly linking the perpetrators to those who
ordered the murder, former interior minister Yuri Kravchenko, also deserves
consideration. In the context of these shortcomings, the failure of the Prosecutor
General and other authorities to resolve the problems related to the presentation of the
Melnichenko tapes as evidence in court requires scrutiny.

The likelihood that continued political interference and pressure has played a part in
these failures is underlined by the absence of any publicly-reported scrutiny of the
conduct of the case by the Prosecutor Generals Office between 2000 and 2004, which
would no doubt throw light on the forms of political interference at that time. A
further sign of political interference is parliaments repeated decision not to hear the
report of its own commission on the case.

On 8 September, as work on this report was being completed, President Yushchenko
dismissed the government led by Yulia Timoshenko, bringing out into the open

182
Reproduced as part 1 of this document, The Failure of Legal and Judicial Processes, 2000-2004.
63
political tensions that have been growing in the months since the Orange
Revolution. The issue of political interference in the Gongadze case was raised.
Mykola Tomenko, having resigned as deputy prime minister, accused Petr
Poroshenko, leader of the Our Ukraine group in parliament; Mykola Martyninko,
senior aide to Yushchenko; Oleksandr Tretyakov; and Volodymyr Lytvyn,
parliamentary speaker, of trying to hinder the investigation and of doing everything
they could to hinder discussion of the Gongadze case in parliament and in the
media.
183
Lytvyn dismissed Tomenkos statement as nonsense. Myroslava
Gongadze, widow of Gyorgy, said at a news conference that Lytvyn should explain
what role he had played in the case, and said that she was alarmed by Yushchenkos
position on the issue and the lack of political will to drive forward the
investigation.
184

Scope of this report

Our first report examined the reasons for the failure of the investigation into the
Gongadze case in the four years after Gongadzes disappearance on 16 September
2000. Our inquiry, according to its own terms of reference, did not undertake any
forensic investigation of the circumstances of the murder. Rather it [sought to]
examine whether the forensic investigation has been properly undertaken and, if not,
why not. We included in the subject matter of our inquiry the political and social
circumstances that surrounded the murder; political and social factors that have
hindered a full investigation; the response of relevant state institutions and civil
society to the case and their role in advancing and/or hindering the investigation; and
the weakness in legal and political systems highlighted by the case.
185

Our first report, published a few weeks after the presidential elections and the
Orange Revolution, concluded that the Gongadze case was a litmus test for
democracy in Ukraine and had important implications for civil society internationally.
We argued that the investigating authorities had deliberately obstructed and
confounded the investigation over a long period of time, and that a stream of false
and/or contradictory public statements about the case pointed to broader political
collusion within the Ukrainian establishment to obstruct and divert the investigation.
We welcomed the readiness of Svyatoslav Piskun, after his reappointment as
Prosecutor General in December 2004, to acknowledge the connection between the
surveillance of Gongadze by MIA officers and his murder. But we noted Piskuns
reluctance to bring the Melnichenko tapes into the investigation; we submitted that
this issue must be investigated together with that of senior politicians possible
involvement in the affair and that any attempt to break the link between these two
parts of the investigation would be a step backwards. This present report concludes
that, in many respects, that link has been broken.

This present report has, due to the limited resources available, been compiled solely
on the basis of (i) publicly-available information on the progress of the case
(including a wide selection of reports in the Ukrainian media, monitored directly by

183
One Plus One TV, 0700 GMT 8 September 2005, relayed by BBC Monitoring.
184
UNIAN news agency, 1318 GMT 8 September 2005 (Lytvyn) and TV 5 Kanal, 1400 GMT 9
September. Relayed by BBC Monitoring.
185
Scope and aims of the inquiry, agreed at a meeting of sponsoring organisations in Brussels on 5
November 2003.
64
ourselves, and by BBC Monitoring), and (ii) records kept by the Institute of Mass
Information, one of the organisations sponsoring this inquiry.

2.1 Preparation of trial of alleged participants in kidnapping

On 8 August 2005 the Prosecutor Generals Office (PGO) announced that a criminal
case is complete against Valeriy Kostenko, Mykola Protasov and Oleksandr
Popovych, as part of the case of the premeditated murder of Gongadze.
186
It is now
expected that they will be brought to court. A detailed account of how the murder was
committed, based on statements by the accused and by witnesses, had previously been
given in interviews by Viktor Shokin, deputy Prosecutor General. According to
Shokin, Gongadze was kidnapped by a group of serving MIA officers (i.e.
policemen), led by Pukach and including the three mentioned above. Gongadze was
taken to the Belotserkovsky district, where he was beaten and then strangled with his
own belt by Pukach. Pukach and a second, different, group of people, subsequently
moved Gongadzes body to Tarashcha, where it was discovered.
187

The PGO has also stated that, while the three accused are brought to court, its
investigations in to other aspects of the case will continue, including the search for
Pukach and the ascertaining of the organisers of the murder and those that ordered
it. General prosecutor Piskun has stated that Pukach can be sentenced in his
absence, if he is not found, as his complicity in the crime has been proved.
188

However Myroslava Gongadze, Georgys widow, and Lesya Gongadze, Georgys
mother, have stated that it is too early to bring the case to court, given that the main
suspect is at large and that no progress has been made in the investigation of those
who ordered the murder. Myroslava Gongadze stated in a television interview: When
I was in Kiev [in April] Prosecutor General Piskun agreed with me that this case
should not be submitted to court until both the direct killers and those who ordered the
murder are clearly established. Now [] he is moving away from this stance.
189

At a press conference in Kiev on 9 September, Myroslava Gongadze raised some
issues arising from the court papers on the case of Kostenko, Protasov and Popovych.
The PGO intends to try the defendants under a paragraph of Article 93 of the
Ukrainian Criminal Code covering premeditated murder, and a paragraph of Article
166 on breach of public duty. Myroslava Gongadze said: I am concerned that the
case is not being brought under the paragraph of Article 93 covering murder under
orders, rather than the paragraph on premeditated murder. This again leads the case
away from those who ordered and organised the murder. I believe the Prosecutor
General is again trying to manipulate public opinion. At the conclusion of this trial,
people will assume that the case has been solved, when in fact the most important part
of it, regarding those who ordered the murder, has not begun.

186
The case is No. 60-1241. Ukrainskaya Pravda, 8 August 2005; Interfax-Ukraine news agency, Kiev,
1530 gmt 8 August 2005 (relayed by BBC Monitoring).
187
Stolichnyye Novosti, Kiev, 22 June 2005 (BBC Monitoring); Fakty i Kommentarii, Kiev, 5 Jul 2005
(BBC Monitoring).
188
Ukrainskaya Pravda, 16 August; TV 5 Kanal, Kiev (in Ukrainian) 1740 gmt 1 Aug 05 (relayed by
BBC Monitoring).
189
TV 5 Kanal, Kiev (in Ukrainian) 1700 gmt 2 August 2005 (relayed by BBC Monitoring).
65
Clearly the Ukrainian government has political reasons for bringing the case to court
early. For example, Petr Poroshenko, secretary of the National Security Council and
one of President Yushchenkos most senior advisers, stated in an interview that while
the issue of past failures of the investigation should be pursued (see section 2.6
below), it was essential to bring a case into court soon, in order that the president
could be seen to be keeping his word. Poroshenko said: The president has been
informed and I was present then that there are confessions of the direct killers.
And that is enough, Im convinced, to hand the case to the court. I'm convinced that
they are the killers. Asked whether a trial of the immediate perpetrators could have
the effect of postponing the case of those who ordered the murder into the distant
future, Poroshenko denied that and said: The killers have been found and
established! To wait for Pukach, Kravchenko and the higher people who gave the
orders, and I don't rule out the possibility that they exist but society has to know that
the killers of Gongadze are in the dock and convicted by the court And the killing
of journalists is a matter that will bring accountability in Ukraine.
190

Given the complex of circumstances detailed below, and the PGOs failure to make
progress on the issue of those who ordered the crime, we draw to the attention of the
Council of Europe legal affairs commission in particular, and civil society in general,
the danger that the trial of the immediate perpetrators may be used to postpone
indefinitely the search for those who ordered the murder.

2.2 Lack of progress of investigation into those who ordered the murder

2.2.1 General issues

The PGO has concluded that Gongadze was killed by a group of MIA officials headed
by Pukach. It is generally accepted by the PGO and other investigating bodies
among others, to our best knowledge that this group was part of a larger team
undertaking surveillance of Gongadze up to the time of his death, and indeed of a
more widespread system of surveillance and intimidation organised within the
Ministry of Internal Affairs. (A considerable amount of information, and speculation,
has long been in the public domain on this system, and of the connection between it
and the case of the werewolves, a group of murderers comprising mainly former
officers, which was sent to court by the PGO in January this year.) There are therefore
a number of obvious starting-points for an investigation into those who ordered the
murder of Gongadze. Progress on each one of these has been negligible, judging by
publicly available information, as follows:

-- General Pukach himself is missing, despite investigating agencies having been
aware of his whereabouts in June (see 2.2.2 below);

-- The former Minister of Internal Affairs, Yury Kravchenko, died in mysterious
circumstances in March [2005], and alleged irregularities in the PGOs treatment of
his case have not been scrutinised. Kravchenko, who can be heard on the
Melnichenko tapes assuring former President Kuchma and others that he will deal
with Gongadze, was, in the words of Oleksandr Turchynov, director of the Ukrainian

190
Ukrainskaya Pravda website, 29 June 2005.
66
Security Service (SBU), one of the prime suspects
191
in the Gongadze case. It is
possible that, having had the conversations recorded on the tapes, Kravchenko gave
orders to MIA officers including Pukach regarding Gongadze (see 2.2.3 below);

-- The Minister of Internal Affairs, Yuri Lutsenko, announced in February [2005] that
the ministry was undertaking a new investigation into the surveillance of Gongadze,
including into its legal status, if any. He announced that witnesses among the
ministrys staff who had not been directly involved in the murder of Gongadze would
be given immunity in exchange for information. And in mid-March, Lutsenko
commented in a television interview that: In addition to the perpetrators and
organisers of the murder, many other people knew about this, especially those who
communicated with Gen Pukach regarding the shadowing of Heorhiy Gongadze. In a
week after my announcement [guaranteeing immunity], people began approaching
me, including a retired officer who produced a written plan for Gongadzes
abduction.
192
Clearly this investigation could help to clarify the nature of the
command structure of which Pukach was part. But in the five months since Mr
Lutsenko made this statement, no further public statements have been made on the
progress of this investigation;

-- Other senior MIA officers or retired officers, who have been publicly named as
having been involved in the surveillance system, have to our knowledge not been
questioned (see 2.2.4 below);

-- The investigation of the Melnichenko tapes, and the negotiations with Major
Melnichenko about providing the originals, appear close to stalemate. On 10
September, in a TV interview, Prosecutor General Piskun stated that he is now in talks
with officials in the US about arranging for Melnichenko to be questioned; this
contradicted his earlier claims that such questioning had already taken place.
Furthermore, although the investigating authorities accept that material available from
copies of the tapes may be used by them as circumstantial evidence, they have not
given any public indication that they have pursued this line of inquiry. For example
there are other crimes about which the tapes provide circumstantial evidence (e.g.
attempted murder of, and other criminal attacks on, political opponents of the Kuchma
government), none of which have been the subject of a successful criminal
investigation (see section 2.3 below).

The lack of progress on all these issues is all the more disturbing in the light of the
vagueness of the public statements from the PGO and other investigating authorities
about the instigators of the murder. On 2 March, Prosecutor General Piskun stated at a
press conference that he knew who had organised the murder, but that the names will
not be made public until charges have been filed
193
. On 20 April, at a meeting with
Myroslava Gongadze, President Yushchenko said that the names of those who
ordered the crime are known.
194
On 14 May, interior affairs minister Lutsenko
stressed that there are very many witnesses in the [Gongadze] case, some in
parliament, some retired officials from law-enforcement agencies, etc (see also

191
UNIAN news agency, Kiev (in Ukrainian) 2300 gmt 4 March 2005 (relayed by BBC Monitoring).
192
TV 5 Kanal, Kiev (in Ukrainian) 1900 gmt 15 March 2005 (relayed by BBC Monitoring).
193
One Plus One TV, Kiev (in Ukrainian) 1410 gmt 2 March 2005 (relayed by BBC Monitoring).
194
Inter TV, Kiev (in Ukrainian) 1700 gmt 20 Apr 05 (relayed by BBC Monitoring).
67
section 2.2.3 below).
195
On 9 June, Prosecutor General Piskun reiterated in a
television interview that Pukach was following orders from above.
196
On 19 June,
deputy prosecutor general Shokin stated in a television interview that the investigation
of the murder was nearing its logical end in terms of organisers and those who
ordered it
197
but, again, without giving any details.

It is of serious concern that, despite these repeated claims that information is available
about the way in which Pukach received orders to murder Gongadze, not even a small
amount of detailed information has been made public, even after the completion of the
criminal case against Kostenko, Protasov and Popovych.

2.2.2 Case of General Pukach

General Pukach, former head of external surveillance and investigations of the
Ministry of Internal Affairs, was first arrested in relation to the PGOs investigation of
the Gongadze case on 23 October 2003, and charged in connection with the
destruction of documents that testified to the surveillance of Gongadze. This arrest,
during Piskuns first period as Prosecutor General, was regarded as an important
breakthrough in the Gongadze investigation. Six days later, on 29 October 2003,
Piskun was dismissed by the then president, Leonid Kuchma, in response to a request
from the presidential co-ordinating committee for fighting organised crime and
corruption. On 5 November 2003, Pukach was released from custody as a result of an
appeal court decision; his lawyers confirmed at that time that his case was related to
Gongadzes, and that he had destroyed the relevant documents.
198
On 18 November
2003 Gennady Vasylyev was appointed Prosecutor General, and closed the case
against Pukach; he stated that there were no suspects in the Gongadze case and that
his investigation of it was starting from scratch.
199

Piskun was reinstated by Kuchma as Prosecutor General on 10 December 2004, after
a court had upheld Piskuns appeal against dismissal. This was at the height of the
Orange Revolution, and some days after Kuchma and current President
Yushchenko had agreed on a constitutional settlement. On 14 January this year, the
PGO reopened the case against Pukach, but meanwhile he had disappeared.
200
After
the arrest of Kostenko, Protasov and Popovych (all of whom gave testimony about
Pukachs involvement in the murder), and the death of Kravchenko (who had been
Pukachs superior at the Ministry of Internal Affairs), the pivotal role of Pukach,
recognised by many observers at the time of his initial arrest, was no longer denied by
anybody. On 15 March, the Minister of Internal Affairs Lutsenko publicly appealed to
Pukach to give himself up, as his life was in danger.
201

In June this year, Pukach apparently escaped arrest as a result of manoeuvres that
some observers conclude must have been conducted inside the PGO. On 23 June, the

195
Zerkalo Nedeli, 14 May 2005.
196
TV 5 Kanal, Kiev (in Ukrainian) 1840 gmt 9 Jun 05 (BBC Monitoring).
197
One Plus One TV, Kiev (in Ukrainian) 1630 gmt 19 Jun 05 (BBC Monitoring),
198
UNIAN, 6 November 2003, as reported on Topping Web Portal, http://mynews-
in.net/news/scandals/2003/11/06/217728.html
199
These events were covered in our previous report.
200
IMI web site, 3 February 2005.
201
TV 5 Kanal, Kiev, 1900 gmt 15 March 2005 (relayed by BBC Monitoring).
68
Ukrainian newspaper Segodnya, citing unspecified sources, reported that Pukach was
in Israel, under surveillance by Israeli law enforcement agencies working together
with their Ukrainian colleagues. The Israeli police and justice ministries, contacted by
other journalists, issued emphatic denials. Then President Yushchenko, questioned by
journalists in Kyiv that afternoon, confirmed that investigative bodies have been
working on this information for around four days. But nobody detained Pukach. A
few days later the German media reported, citing sources in the Israeli foreign
ministry, that Pukach really was in Israel and that the authorities there hoped to detain
him.
202
At the time of writing, i.e. early September 2005, he had not been detained.

Two days after Segodnyas report on Pukachs whereabouts, Zerkalo Nedeli, the
respected analytical weekly, published detailed reportage of the incident, in which it
stated that people within the PGO, including deputy prosecutor general Shokin, had
ensured that public signals were sent out that the Israeli-Ukrainian investigation was
at an advanced stage, which gave Pukach time to evade investigators. Zerkalo Nedeli
reported that a meeting between the PGO, the SBU and other investigating agencies
took place on 22 June, after which information on the case was leaked to Segodnya.
And on 23 June, while Israeli investigators and their colleagues from the SBU who
knew Pukachs whereabouts, but were awaiting the outcome of various legal
processes needed to sanction the repatriation of Pukach to Ukraine were desperately
trying to repair the damage, information was fed through to President Yushchenko,
who was encouraged by his advisers to confirm that the operation was taking place.
According to Zerkalo Nedeli, the information may have passed from deputy
prosecutor Shokin, to national security council secretary Poroshenko, to Yushchenko.
Zerkalo Nedeli commented: It all looks professional and smells bad.
203

There are two groups of obvious questions about the Pukach case, investigation of
which may yield valuable information about possible deliberate obstruction of the
investigation of the Gongadze case. Such information would in turn shed light on the
method by which the murder was ordered.

First, what action has been taken, or will be taken, at the PGO, to investigate the leak
of information that effectively sabotaged the investigation being undertaken by the
SBU and their Israeli colleagues. (Zerkalo Nedeli posed a related question: The
professional work of the Segodnya journalist, whose aim was to find and publish a
sensation, became possible because of a crime of duty committed by someone in the
PGO or by someone who took part in that [inter-agency] conference [on the Pukach
case]. It will be interesting to see whether, at least this time, the SBU will institute a
criminal case under article 378 of the Criminal Code (from a fine to three years) and
bring to court the person who betrayed the information to the journalist? All the more
so because the identity of the high-ranking informant is known.)

Second, what action has been taken, or will be taken, by the PGO, to investigate the
means by which Pukach was released from custody in October 2003? In the light of
(i) the success of Prosecutor General Piskuns successful appeal against his dismissal

202
Initial article in Segodnya, Kiev, 23 June 2005; Israeli denial on TV 5 Kanal, Kiev, 1700 gmt 23
June 2005; Yushchenko statement on TV 5 Kanal, Kiev, 1607 gmt 23 June 2005; foreign ministry
acknowledgement, UNIAN news agency, Kiev (in Ukrainian) 1536 gmt 28 June 2005 (all relayed by
BBC Monitoring)
203
Zerkalo Nedeli, 25 June 2005
69
by President Kuchma, (ii) the way in which that dismissal appeared to follow so
directly from Pukachs initial arrest, and (iii) the information that has subsequently
come to light about Pukachs crucial role as the organiser of Gongadzes murder,
what action is being taken to investigate the background to the dismissal, including
the subsequently-overturned decision by the presidents special commission that
triggered the dismissal? Has any investigation been undertaken of the decision by
Vasylyev, at the start of his term as Prosecutor General, to close the case against
Pukach? In the light of information now available, has the possibility of political
interference in this decision been considered?

Despite the obvious logical connection of these issues, and their relevance to the issue
of how the Gongadze murder was ordered, the PGO and the Ukrainian government
have, as far as we can determine, held back from any examination of them. We urge
the Council of Europe legal affairs committee, and civil society, to pursue these
issues.

2.2.3 Other MIA officers

Given the connection between the murder of Gongadze and the broader system of
surveillance that was run by MIA officers, it seems clear that investigation of the
latter may help clarify the way that orders were given for the former. On 1 March,
after President Yushchenko had announced that the Gongadze case was solved (see
section 2.4 below), the internet newspaper founded by Gyorgy Gongadze,
Ukrainskaya Pravda, ran an editorial expressing scepticism that the end of the
investigation could come so easily, and reminding readers of those senior MIA
officers who had been involved in running surveillance operations, and whose names
had come into the public domain in 2003-04. It stated: we know who possesses
information on Gongadze case Colonels Berdak and Sydorenko who directly
supervised the surveillance over Gongadze, Generals Gapon, Pukach, and
Prilipko.
204
On 14 May, the Minister of Internal Affairs Lutsenko acknowledged the
importance of interviewing those who had been links in the chains of command in the
ministry and in other state bodies, when he told a newspaper interviewer: I want to
tell the sceptics, who maintain that the death of Yuri Kravchenko has broken the
thread leading to those who ordered the crime, that very many witnesses in the case
are still alive. Some of them are now in the Supreme Council [i.e. parliament]. They
are people who were then top officials in the law-enforcement agencies. Some of
them have now retired. To restore the threads leading to the person who ordered the
crime, there are sufficient witnesses.
205

A related issue is that of the investigation into the werewolves gang. In our previous
report we referred to the case of Ihor Honcharov, a member of the gang who was
apparently murdered in prison last year, and who left a considerable amount of written
evidence on the activities of the werewolves and its possible connection to the
Gongadze case. While investigation of Honcharovs death might also shed more light
on the Gongadze case, we are unaware that any progress has been made in that regard.
On the other hand a case against members of the gang in respect of other murders is
now going to trial. On 28 February this year, there was an unsuccessful grenade attack

204
Ukrainskaya Pravda, 1 March 2005.
205
Zerkalo Nedeli, 14 May 2005.
70
on Yuri Nesterov, a member of the gang who is under police guard as a witness in that
case. Such an attack would appear to be aimed at silencing yet another witness who
may help shed light on the chains of command that operated inside the Ministry of
Internal Affairs. Prosecutor General Piskun has publicly hinted that a group related to
the gang (werewolves 2) continues to operate, and Oleksandr Zhyr, former
chairman of the parliamentary commission on the Gongadze case, has commented
that energetic investigation of the attack on Nesterov could uncover information about
it.
206
However, we are unaware of any progress in the investigation of this case either.

In contrast to the wealth of public statements giving details regarding the forthcoming
trial of Kostenko, Protasov and Popovych, there has been no indication from the PGO
of any progress in the investigation of these chains of command.

2.2.4 The death of former Minister of Internal Affairs Kravchenko

Former Minister of Internal Affairs Yuri Kravchenko was the obvious starting-point
for investigating links between the conversations about harming Gongadze in the
office of former President Kuchma, which are heard on the Melnichenko tapes, and
the activities within the Ministry of Internal Affairs mentioned above. Kravchenko
participated in the conversations, and was in a position to give orders to MIA officers
including Pukach. On 3 March, after President Yushchenkos announcement that the
Gongadze case was solved, Prosecutor General Piskun gave a press conference at
which he stated that he knew who had given the criminal order to Pukach to commit
the murder, but could not name that party. He went straight on to say of Kravchenko:
We are inviting him to the Prosecutors General Office on Friday at 10 a.m. to give
evidence.
207

On 4 March, the following day, Kravchenkos body was found at his country villa,
with two gunshot wounds, one to the chin and one to the temple. A note to his family,
found on his body, said he was innocent of wrong-doing and had fallen victim to the
political intrigues of President Kuchma and his entourage.
208
SBU director
Turchynov and other officials have stated that the available evidence shows that
Kravchenko committed suicide. The PGO also considers that the death was suicide,
although it has opened a murder case with respect to it. Interior affairs minister
Lutsenko has stated, I have doubts about this suicide, but nothing more than that.
209

206
Report of attack on TV 5 Kanal, Kiev (in Ukrainian) 1600 gmt 28 February 2005; interview with
Zhyr in Fakty i Kommentarii, Kiev (in Russian) 1 April 2005; also Holos Ukrayiny, Kiev (in Russian)
5 May 2005 (all relayed by BBC Monitoring).
207
ProUa news service, relayed by IMI
208
The suicide and contents of the note were widely reported, based on statements by the law-
enforcement agencies, e.g. Ukrainskaya Pravda 4 March 2005, RFE/RL Newsline Vol. 9, No. 43, Part
II, 7 March 2005.
209
A statement by Turchynov on the day of Kravchenkos death, UNIAN news agency, Kiev, 2300
gmt 4 March 2005 (relayed by BBC Monitoring). Turchynovs detailed replies to journalists questions
about how Kravchenko could have shot himself twice, Ukrayina Moloda, 16 March 2005, and
Ukrainskaya Pravda, 12 April 2005. As well as the forensic issues, some suspicion about the manner of
Kravchenkos death was raised by the fact that he was given a burial service in a church, which is
normally not done in cases of suicide. Deputy prosecutor general Shokin confirmed that a murder case
had been opened, and gave some other details, in an interview in Segodnya on 12 April 2005. Lutsenko
in Zerkalo Nedeli, 14 May 2005.
71
Two issues relevant to the Gongadze case arise with respect to Kravchenkos death.
The first is that Prosecutor General Piskuns decision to invite Kravchenko for
questioning through the media, rather than inviting him for interview or detaining him
in the standard fashion a decision that he has subsequently defended vigorously in
public
210
has not been subject to scrutiny by any public body. Nor has the decision
not to detain Kravchenko with a view to protecting him as a witness. SBU head
Turchynov implied in a newspaper interview that the issue of detaining Kravchenko
was considered but rejected. Asked whether Piskuns announcement had not put
pressure on Kravchenko, Turchynov replied: You know, the only way to have
prevented the suicide would have been to arrest him. We considered this option which
would have fully saved him from death. But the Prosecutor Generals Office did not
have grounds for acting in this way. The security service would not have allowed
Kravchenko to disappear in an unknown direction, but it was impossible to prevent
him from committing suicide or to stop [Kravchenkos] hand which took the weapon.
[Emphasis added.]
211
Clearly it would be proper for the PGOs decision to invite
Kravchenko for interview not only publicly, but provocatively, to be subject to
scrutiny. Otherwise the suspicion that the Gongadze investigation was deprived of one
of its most important witnesses as a result of a mistake by the Prosecutor General will
remain.
212
This will undermine still further the credibility of the PGOs investigation.

The second issue is that, as long as the PGO has a murder case open with respect to
Kravchenkos death, which implies at least the possibility that another crucial witness
in the Gongadze case was killed to ensure his silence, it is hard to see how the PGO
can claim that the Gongadze case is being brought to a close.

2.3 Unresolved issues surrounding the Melnichenko tapes

2.3.1 Failure of liaison with Melnichenko

The Melnichenko tapes provide prima facie evidence that former President
Kuchma, Kravchenko, and other senior government figures including Volodymyr
Lytvyn and Leonid Derkach, discussed harming Gongadze several days before his
death. In our previous report we expressed concern that in the four years after
Gongadzes death, the PGO and other investigators had refused to consider material
from the tapes, and we argued that no investigation could be considered complete
without that material being taken into account.

It was obvious, prior to the Orange Revolution, that political opposition from within
the Ukrainian government was a major obstacle to any investigation of the tapes. The
failure of successive Prosecutor Generals (Potebenko, Piskun and Vasylyev) to
examine the tapes did not meet any substantial political resistance. In the aftermath of
the Orange Revolution, i.e. during Piskuns second term as Prosecutor General
starting on 10 December 2004, the tapes have been accepted as a legitimate subject of
inquiry by politicians and the PGO alike. But the PGO has failed to overcome
obstacles to obtaining the original recordings and the testimony of Major

210
Ukrayina Moloda, 5 May 2005.
211
Ukrayina Moloda, 16 March 2005.
212
This suspicion was widely voiced after Kravchenkos death, e.g. by the parliamentary deputy Oleh
Tiahnybok (Ukrainskaya Pravda, 3 March 2005). President Yushchenko was moved to announce that
he had no intention of sacking Prosecutor General Piskun.
72
Melnichenko himself, both of which would be necessary if the tapes were to be used
as primary evidence in the Ukrainian courts. This has been combined with a
reluctance on the part of Melnichenko himself to co-operate with Piskun.

Despite the obvious importance of the Melnichenko tapes, Prosecutor General Piskun
limited himself during his first months back at the PGO to laying down conditions
publicly for Melnichenko to fulfil and complaining publicly about Melnichenkos
reluctance to co-operate with him. Piskuns reluctance to engage with Melnichenko
may be summarised as follows. On 18 February 2005, two months after his
appointment, Piskun said that the PGO intended to undertake expert examination of
the tapes. This appears to have been irrelevant to the investigation in a way similar to
previous announcements during Piskuns previous term as Prosecutor General, since
the originals were in Melnichenkos possession, and the copies available had already
been subjected to numerous expert examinations, as discussed in our previous report.
On 25 February 2005, after Socialist Party leader Oleksandr Moroz had demanded
Piskuns resignation if he failed to attach the tapes to the Gongadze case file, Piskun
said he would do so only on condition that Melnichenko provided the original
recordings. Only on 2 March 2005, after the case had been declared solved by
Yushchenko, did Piskun invite Melnichenko publicly to return to Ukraine. On 5 April
2005, Piskun stated in a newspaper interview that he had made attempts to meet
Melnichenko but that Melnichenko had changed the appointments, and said that he
was afraid that Melnichenko may not have recorded the conversations in Kuchmas
office at all.
213

Seven months after his re-appointment, four months after President Yushchenkos
announcement that the Gongadze case was solved, and three months after the
Council of Europes rapporteur on the Gongadze case, Sabine Leutheuser-
Schnarrenberger, had called on the PGO to undertake forensic examination of the
tapes in the USA, Piskun finally visited the USA, where Melnichenko has been
granted political asylum. He failed to meet with Melnichenko, and left the USA
quickly prior to a meeting that had been arranged. But he reached an agreement with
the US Department of Justice that US investigators would take testimony from
Melnichenko, and that the justice department would store the originals of the tapes
and the recording equipment with which they were made. At a briefing on 25 August
2005, Prosecutor General Piskun stated that Melnichenko had answered 86 questions
that had been put to him on the PGOs behalf by US investigators, but on 1 September
the US State Department issued a statement specifically denying this, and on 10
September Prosecutor General Piskun himself admitted that he was only in
negotiations with the US Justice Department about the issue of questioning
Melnichenko.
214

We hope that the belated contact with Major Melnichenko leads to evidence from the
tapes being made available to the Ukrainian courts. It is essential that all obstacles to
this are overcome.

213
Piskuns announcement, Interfax-Ukraine, 18 February, relayed by IMI; Moroz, and Piskuns
response, Tovarishch, 24 February 2005, relayed by IMI; RFE/RL news service, 25 February 2005,
relayed by IMI; Piskun questions Melnichenkos role, Ukrayina Moloda, 5 May 2005.
214
Ukrayina Moloda, 13 July 2005; Interfax-Ukraine news agency, 1246 gmt 9 Aug 2005 (relayed by
BBC Monitoring); IMI, 18 August; Ukrainskaya Pravda, 25 August 2005; IMI, 1 September 2005; TV
5 Kanal, 10 September 2005.
73

We are aware of the enormous amount of public discussion of the tapes contents, by
Melnichenko himself and many others, and we believe that the authorities must
ensure that this does not hinder the investigation. Firstly, it appears possible that
Major Melnichenko did not make the Melnichenko tapes on his own. For example,
his friend and long-time collaborator Aleksandr Litvinenko stated in an interview on 1
April that Melnichenko had worked as part of a team supervised by Yevhen Marchuk,
former defence minister.
215
Secondly, over the last year in particular Major
Melnichenko has made large numbers of public and often contradictory statements
about the contents of the tapes, his own motives and his own actions. He has
participated by way of such statements in various political debates surrounding the
tapes. Thirdly, reports have appeared in the Ukrainian media suggesting that
Melnichenko accepted a large sum of money from associates of former President
Kuchma in the course of (ultimately unsuccessful) negotiations to secure his
silence.
216

Judgements on these issues are beyond our remit. However, neither the possibility that
Melnichenko worked with others, nor his subsequent actions, should influence the
validity of the tapes as evidence. This must be determined by forensic examination.

2.3.2 Use of circumstantial evidence available from the tapes

There are strong grounds for the Melnichenko tapes to be used as circumstantial
evidence and as an aid to the investigation. Minister of Internal Affairs Lutsenko has
made this point, when he said that regardless of who made the recordings, this does
not change the criminal conversations which were held, and for that reason they
should be added to the Gongadze investigation.
217
As we suggested in our previous
report, the method of comparing conversations on the tapes in which criminal acts
were discussed, and the carrying-out of those crimes at around the same time, may
help determine their authenticity, and indeed to solve those crimes. In our previous
report we mentioned the attack on the STB television station in 1999, the attack on
parliamentary deputy Oleksandr Yelyashkevych on 8 February 2000 and the
kidnapping of Oles Podolsky on 9 June 2000.
218
However we are unaware of any
progress made in the investigation of these crimes, or whether those who are heard
discussing them on the tapes have been questioned about them. Clearly such measures
would assist the investigation of the instigation of Gongadzes murder.

We draw to the attention of the Council of Europe rapporteur on the case, and civil
society, the continuing importance of the circumstantial evidence available from the
tapes and the failure to follow the lines of inquiry opened up by it.

Former President Kuchma, current parliamentary speaker Volodymyr Lytvyn, and
former defence minister Leonid Derkach, all of whom are heard on the "Melnichenko

215
Litvinenko on Interfax-Ukraine, 1 April 2005, relayed by IMI. There has been much speculation in
the Ukrainian press and elsewhere on the possibility that Melnichenko was working as part of a team,
which we regard as irrelevant to our inquiry.
216
"Bolshie torgi", by Semen Shevchuk, Ukrainskaya Pravda, 5 July 2005
217
Interfax-Ukraine news agency, 1613 gmt 1 April 2005 (relayed by BBC Monitoring)
218
See section 1.4.3 (January 2005) of this document; Koshiw, Beheaded, pp 32-34, 58-60, 67-68 and
82.
74
tapes" discussing the need to harm Gongadze, have been questioned by the PGO on
the case.
219
No information has been made available about what lines of inquiry were
followed. However if all the other context provided by the tapes has been left out of
account, as the PGO appears to have done, it is difficult to believe that this
questioning can have been conclusive.

2.4 Continuing "PR management" of the investigation

In our previous report we drew attention to the cynical manipulation of public
opinion inside Ukraine and internationally by the PGO and senior politicians. In the
period covered by this report, the political situation has changed as a result of the
Orange Revolution, and whereas President Kuchmas statements on the Gongadze
case were limited and unenthusiastic, President Yushchenko has repeatedly discussed
the case and said that he regards its resolution as a matter of honour for himself and
the nation. Nevertheless, within this context, there has been considerable PR
management of the investigation, in which its successes have been exaggerated. In
particular, we are concerned that the trial of Kostenko, Protasov and Popovych will be
presented as a significant achievement, while the search for the instigators in which
no progress has been made, and which has suffered from the death of one of the two
key witnesses, the disappearance of another, and a failure to follow many basic lines
of inquiry will grind to a halt.

The most problematic statement made in the period covered by this report was
President Yushchenkos assertion at a press briefing on 1 March 2005 that there was
reason to believe that the case has been solved.
220
This was widely criticised by
Myroslava Gongadze, other campaigners, editorially by Ukrainskaya Pravda, by
senior politicians and by the parliamentary commission on the Gongadze case. At this
point no-one had been charged in connection with the murder, let alone tried and
found guilty. Even now, six months later, three people who were accessories to the
crime have been charged; the person believed by the PGO to be its main perpetrator is
missing and no apparent progress has been made on the case against the instigators.

Yushchenkos statement was followed by a series of announcements from the PGO
exaggerating the success of the investigation. Examples include Piskuns statement on
5 May that Pukach is alive and will soon be here; Piskuns statement on 7 June that
the Gongadze case would be in court in July; and Shokins assertion in a newspaper
interview on 19 June that the crime has been completely proved and that the
investigation of those who ordered it is nearing its logical end.
221
It is furthermore
of concern that, in numerous interviews and press briefings, many of which we have
already quoted, Prosecutor General Piskun and deputy prosecutor general Shokin
have encouraged media attention on the immediate perpetrators of the murder and
pushed issues related to the instigators to the background.

219
Interfax-Ukraine, 16 March 2005 (as relayed by BBC Monitoring); Segodnya, 12 April 2005;
Ukrayina Moloda, 5 May 2005.
220
UNIAN, 1 March 2005 (relayed by IMI) and TV 5 Kanal, Kiev, 1500 gmt 1 March 2005 (relayed by
BBC Monitoring).
221
Piskun on Pukach, Ukrayina Moloda, 5 May 2005; Piskun on July trial, Interfax-Ukraine, 7 June
2005 (relayed by BBC Monitoring); Shokin on One Plus One TV, 1630 gmt 19 June 2005 (relayed by
BBC Monitoring).
75

2.5 Unresolved issues surrounding the PGOs work
on the Gongadze case, 2000-04

In our previous report we referred to broad political collusion within the Ukrainian
establishment to obstruct and divert the investigation, as being the reason for a
catalogue of elementary failures, and breaches of procedure and law, in the
investigation into the Gongadze case by the PGO. The existence of such collusion
has been widely acknowledged in Ukraine and, arguably, was one of the features of
the countrys political life against which the Orange Revolution was aimed. We
assume that this collusion was directed, above all, at shielding not so much the
perpetrators of Gongadzes murder as the instigators. It logically follows that an
examination of the past failures of the PGO in the first four years of its investigation
of the Gongadze case could throw important light on the instigators and those who
sought to protect them.

We have already referred to an important example, i.e. the case of General Pukach. A
re-examination of the consequences of his initial arrest, the subsequent dismissal of
Prosecutor General Piskun from his first term in office, and Pukachs release, could
help to explain the political efforts being made at that time to obstruct the Gongadze
inquiry, and in turn shed light on the way in which the murder was originally ordered.
The secretary of Ukraines national security council Poroshenko has indicated the
importance of these issues when he said in a recent interview: I'm sure that the
people who released Pukach from the remand centre should also be held accountable.
Or those who destroyed the proof, dissolved the investigation group and blocked the
investigation for a year! [] There are specific people who will answer for this!
222

Other important questions about past failures of the investigation were raised on 13
January 2005 in a letter from researchers for this inquiry to Prosecutor General
Piskun. Many of these questions retain their importance now, since the answers may
help to illuminate the process by which the Gongadze murder was ordered. These
include the PGOs declarations that the Melnichenko tapes were fakes, the repeated
assertions by the PGO and others that they had been fabricated by parliamentary
deputy Mykola Rudkovskyy, and the failure to bring a case against Rudkovskyy; the
PGOs failure to investigate the surveillance of Gongadze and subsequent change of
course on that issue; the PGOs failure to investigate the Honcharov case; the
dismissal on 30 November 2004 of deputy prosecutor general Mykola Holomsha, the
public accusation by the PGO that he had improperly organised the investigation
into Gongadzes death, and his subsequent reinstatement on 29 December 2004.

We draw attention to the continuing importance of these issues. In particular, we call
on the Ukrainian authorities to open criminal investigations into the instances of
deliberate obstruction of the Gongadze investigation by the PGO.

2.6 Political pressure aimed at limiting the scope of investigations

2.6.1 General

222
Ukrainskaya Pravda, 29 June 2005
76

In the period since the Orange Revolution, the character of political resistance to the
investigation of the Gongadze case has changed. Before then, the pressure was
directed to obstructing the investigation at all levels. This year, the pressure appears to
us to have been directed towards concentrating attention on some of the immediate
perpetrators of the crime in order all the better to prevent those who ordered it being
brought to justice.

As we stated in our previous report, it is widely assumed that during the Orange
Revolution an understanding was reached between former President Kuchma and
current President Yushchenko, providing immunity from prosecution for Kuchma and
some of his associates, with reference to the Gongadze case and other high-profile
cases. This is considered by analysts both within and outside Ukraine as a convincing
interpretation of events.
223
President Yushchenko has denied the existence of such a
deal. We make no assumptions on this issue. However, we acknowledge that the
Gongadze case has been conducted in such a way consistent with the existence of
such an arrangement, however informal or general its terms. In this respect it is worth
reproducing the statement by Deputy Prime Minister Mykola Tomenko in a
newspaper interview: For me, the Gongadze affair, which I wanted so much to
speed up, is the case of Leonid Kuchma and, as experts think, Volodymyr Lytvyn.
Possibly, there was no arrangement with Kuchma. But there was, to a large extent, a
conscious decision not to enter into direct conflict with several political players. I
have the feeling that a certain group of politicians have agreed on a collaboration that
will guarantee that they won't come in for any attention from the law-enforcement
agencies. I say once again that, if I were the prosecutor, I would start with the case of
Kuchma, since the Gongadze affair is derivative and is directly connected with the
case of Kuchma.

Tomenko argued that the investigation should start in the reverse fashion from the one
adopted, i.e. from the top: Only the architects of the political regime should be the
subject of the discussions, although I agree that there will be no Kuchma case in the
near future. And, if that doesn't take place, then none of all the other cases will either.
At the moment, I can't see the Gongadze and Yelyashkevych affairs coming to an
end.
224
As discussed above (in section 2.1), there is strong political pressure within
government to take the opposite approach, i.e. to bring the immediate perpetrators to
trial as quickly as possible, to show the public that the new regime is meeting its
obligations. This political approach coincides with the practical approach of the PGO.

Apart from the general aversion within the political establishment to the approach
advocated by Tomenko, there is also political pressure to curtail international scrutiny
of the case. A clear example of this is the special declaration on the Gongadze case
that the government has ordered the Ukrainian plenipotentiary representative for
observing the European Convention on Protection of Human Rights and Fundamental
Freedoms to sign. This declaration provides for Myroslava Gongadze, Georgys
widow, to receive "100,000 as a pledge of a friendly out-of-court settlement of the
case that she has brought in the European Court on the failed investigation into the
circumstances of her husbands disappearance. Under the terms of the proposed

223
For a recent discussion of this theme, see Janes Intelligence Digest, 6 July 2005
224
Den, 15 July 2005 (relayed by BBC Monitoring)
77
settlement, Myroslava Gongadze would lose the right to file any complaints against
Ukraine with regard to the case. She has publicly rejected any such arrangement.
225

2.6.2 Parliaments failure to hear report of its own commission

The single clearest indication of political resistance to the pursuance of investigations
of the instigators of the Gongadze murder is the Ukrainian parliaments failure to hear
the report of its own commission in to the case. Some indication of the contents of the
parliamentary commissions report, the suppression of which we referred to in our
first report, were given by the commissions chairman, Hryhoriy Omelchenko, in an
interview on 18 March 2005.
226
He said that the report names former President
Kuchma and former Minister of Internal Affairs Kravchenko as the organisers of the
murder; it names parliamentary speaker Volodymyr Lytvyn and former defence
minister Leonid Derkach as being responsible for instigating the perpetration of
violent acts against Gongadze. Omelchenko said that the report had cited evidence
from the Melnichenko tapes and evidence from witnesses. This all suggests that the
motive for preventing publication of the report is precisely that it concentrates on the
issue of those who ordered the murder, rather than the perpetrators.

Commission chairman Omelchenko had proposed delivering his report on numerous
occasions in 2003-04, and been blocked from doing so. In March 2005, the issue
came up again at a meeting of the conciliation commission of parliamentary fractions,
which declined to approve the timetabling of a report by the Omelchenko
commission. Socialist fraction leader Oleksandr Moroz, addressing a parliamentary
session, said the decision was a disgrace, aggravated by dubious excuses that
allowing the commission to report would violate some political agreements.
227
In a
subsequent interview, Omelchenko claimed that the pressure to block the
commissions report emanated from President Yushchenko and speaker Lytvyn. He
said: I have exhausted already all the possibilities provided by the law to force this
question through. The only things I haven't done is to smash up the rostrum, seize
people by the lapels, tear my shirt or declare a hunger strike in protest. [] at the
conciliation council Oleksandr Moroz, Anatoly Matviyenko [deputy from the Yulia
Timoshenko Bloc] and your humble servant [i.e. himself] once again demanded from
the speaker a hearing of the commission of inquiry's report. But there was nothing
doing. Volodymyr Lytvyn got nervous and looked irritated. And he replied that he
had talked with President Yushchenko, and the latter had requested that the report not
be heard, in order not to politicise the situation.
228
On 19 April, a plenary session of
parliament voted against hearing Omelchenkos report and a report by Prosecutor
General Piskun: only 184 deputies out of 424 voted to add it to the agenda, with the
majority of deputies from Our Ukraine (Yushchenkos party), the Ukraine Peoples
Party (Lytvyn), the United Social-Democratic Party (Kuchma ally Viktor
Medvedchuk) and Regions of Ukraine not participating in the vote. Volodymyr
Stretovich, head of the parliamentary commission on combating organised crime,
stated in an interview that the vote resulted from someone [being] very much afraid

225
Inter TV, Kiev, 1700 gmt 1 June 2005 (relayed by BBC Monitoring); Resolution of Gongadze
Murder Blocked, by Taras Kuzio, Eurasia Daily Monitor, 20 July 2005.
226
Segodnya, 18 March 2005.
227
TV 5 Kanal, 0900 gmt 16 Mar 05 (BBC Monitoring) Segodnya, 18 March 2005.
228
Kyivskiye Vedomosti, 29 March 2005.
78
of the information becoming public and a political hope that the [Gongadze] case
will be stifled.
229

We urge the Council of Europe rapporteur on the Gongadze case, journalists
organisations and civil society to take note of the political pressure being exerted to
divert the investigation of the Gongadze case away from the instigators.

Conclusions and recommendations

We conclude that the only progress made by the investigation into the murder of
Gongadze this year is the completion of the case against Kostenko, Protasov and
Popovych. On the other hand the investigation has suffered a number of substantial
setbacks, including:

-- The disappearance of General Pukach; the leaking of information that disrupted the
work of Ukrainian and Israeli agencies who were preparing to detain him; the lack of
any public scrutiny of that potentially criminal action; and the absence of any
investigation into the process by which General Pukach was previously released and
the Pukach case closed in December 2003;

-- The death of former Minister of Internal Affairs Kravchenko, who could have
provided important information about the link between the conversations recorded by
Melnichenko and the murder; and the lack of any public scrutiny of possible
negligence by the PGO in its handling of the case of Kravchenko and in protecting
him as a witness;

-- The failure to interview the numerous witnesses from within the Ministry of
Internal Affairs with a knowledge of the system of surveillance operated there; and
the failure to investigate thoroughly the links between the werewolves case and the
Honcharov case with the Gongadze case;

-- The failure to resolve the problems surrounding the Melnichenko tapes, with a view
to using them as primary evidence in court, caused mainly by the mistakes and
sluggishness of the PGO;

-- The failure to follow lines of inquiry arising from circumstantial evidence available
on the Melnichenko tapes, including information on other criminal acts that senior
state officials can be heard discussing on the tapes.

As a result of these manifold failures, the opportunity provided by the political
changes in Ukraine following the Orange Revolution has in some respects been
missed. These failures, by their nature, can hardly be other than deliberate. Overall,
they present a picture of unwillingness on the part of the PGO to investigate the
Gongadze case to its end, and in particular to pursue the instigators of the crime.

The persistence with which the Ukrainian president and government have supported
the PGO, combined with the efforts made to prevent the publication of the
conclusions of the parliamentary inquiry on the Gongadze case, indicate a level of

229
Den, 19 July 2005.
79
political collusion to limit the Gongadze investigation. Whereas under the Kuchma
government this collusion was aimed at stifling the investigation all together, under
the new government it appears to be aimed at limiting the investigation to the
immediate perpetrators of the crime.

We recommend:

To the Ukrainian government:

-- To put in place mechanisms for public scrutiny of the PGOs work, and to
commence an immediate investigation into the basic failures of the PGO as listed
above;

To the Ukrainian parliament:

-- To hear with urgency a report from the PGO on the Gongadze case;

-- To hear without further delay the report of the parliamentary commission on the
Gongadze case.

To the Council of Europe rapporteur on the Gongadze case:

-- To bring pressure to bear on the PGO with regard to the failures listed above;

-- To question the PGO about these failures and to examine the issue of continuing
political collusion to limit the investigation of the Gongadze case.

To civil society and journalists organisations, within Ukraine and across Europe:

-- To continue to bring pressure to bear on the Ukrainian government and PGO for the
investigation of the Gongadze case to focus on the instigators of the crime and not to
be limited to the immediate perpetrators.

80
3 OFFICIAL OBSTRUCTION IS REWARDED
(Published in September 2007)

3.1 Introduction

This is the third report on the Gongadze case published by the inquiry established in
November 2003 by the International Federation of Journalists, the Institute of Mass
Information of Ukraine, the National Union of Journalists of the UK and Ireland and
the Gongadze Foundation. It is an update and continuation of our two earlier reports,
published in January 2005 and September 2005
230
.

The case of Gongadze, the founding editor of the Ukrayinska Pravda web site who
was murdered in September 2000, remains crucial not only for Ukraine but for
Europe, and internationally. Above all the case concerns the impunity of those in
power who sanction violence and intimidation against journalists. Gongadze was
brutally murdered, allegedly by officers in the Ministry of Internal Affairs. Prima
facie evidence was made available, soon after Gongadzes death, of discussions
between senior politicians about harming him, and these almost certainly had some
connection with the preparation of the murder.

The multiple attempts by senior Ukrainian officials to frustrate and sabotage
investigations of the murder, both before and after the Orange Revolution of
December 2004, are testimony to the importance of the issue of impunity. It is not
surprising that Georgys family and colleagues have, together with international
journalists organisations and media freedom campaign groups, been at the forefront
of calls for new international legal and political frameworks to confront the impunity
of those who try to silence journalists by violence.

The title of this third report Official Obstruction Is Rewarded refers, in particular,
to the award to former Prosecutor General Mikhail Potebenko in February 2007 by
President Yushchenko of the Order of Prince Yaroslav the Wise. It was Potebenko to
whom Georgy Gongadze appealed for help in July 2000, when he realised he was
being followed; it was Potebenko who ignored that appeal. It was Potebenko who
repeated to the public fanciful and illogical hypotheses about Gongadzes
disappearance, which he probably knew had no foundation. It was Potebenko who
continued to obstruct the investigation of the murder by refusing to consider the
Melnichenko tapes and other crucial evidence. It was Potebenko who was
ultimately responsible for carrying out an effective investigation of Gongadzes
murder, which, the European Court later found, the authorities failed to do.

That the Ukrainian president has presented Potebenko with a state honour while the
investigation of those who ordered the murder has moved far too slowly during the
two-and-a-half years since the Orange Revolution epitomises the official
indifference, and even opposition, to dealing with many of the issues raised by the
case.

230
Reproduced as parts 1 and 2 of this document, The failure of legal and judicial processes and
The instigators are getting away.
81
We have concluded from our research that the investigation of the case indeed faces
indifference and opposition at the political level. No matter how many hundreds of
statements are made about the need to solve the case, actions such as the honouring of
Potebenko, taken while his successors at the Prosecutor Generals Office (PGO)
continue to resist pursuing crucial issues, and while those investigating officers who
have made the most progress on the case are removed from it without explanation,
can not be characterised as mere lack of political will. If at a time there was
political will to find the instigators of Gongadzes murder, it appears that it has now
been overcome by the will for members of the political establishment to protect each
other, and each others reputations.

This report covers the investigation of the case, and factors impacting upon it, in the
period of approximately two years (September 2005-August 2007) since the
publication of our Report No. 2. It is structured as follows:

Section 3.2 covers the trial of three Ministry of Internal Affairs (MIA) officers
charged with conspiracy to murder and other offences in respect of the killing of
Gongadze, which is currently in progress. Almost all official sources, journalists, and
others monitoring the case, agree that Gongadze was probably killed by General
Oleksiy Pukach, former head of the Chief Directorate of Criminal Investigations of
the MIA, with the help of these three officers, who have made statements confessing
to their involvement. Since this case was sent to trial in August 2005, the PGO and
other Ukrainian law enforcement agencies have continued to investigate the
instigation and preparation of Gongadzes murder, and the remainder of this report
covers this issue.

Section 3.3 reviews the information now available about the system of intimidation
that operated in the MIA, to which Gongadze fell victim, and considers the failure of
the authorities investigating Gongadzes murder to pursue this avenue.

Section 3.4 reviews the information now available about the Melnichenko tapes,
recorded by Nikolai Melnichenko, a former bodyguard of President Kuchma, that are
crucial to the case. It examines the failure by the PGO, and by Major Melnichenko, to
present these tapes as evidence in the way required by the Ukrainian legal system.

Section 3.5 reviews the attitude of some leading Ukrainian politicians, who are
potentially important witnesses, to the case.

Having reviewed the new information available on these three crucial aspects of the
case, the report then, in Section 3.6, considers the investigation carried out by the
PGO. It covers the numerous changes of personnel and policy at the office during this
period; the pursuit of General Pukach; and the PGOs decision to close the case of
former Minister of Internal Affairs Yuri Kravchenko, whose death in March 2005 was
linked to the Gongadze case.

Section 3.7 of the report examines the attitude of Ukrainian political institutions and
politicians to the case, and concludes that a lack of political will in Kiev has been an
essential factor in the lack of progress in the investigation of the case. Section 3.8
makes recommendations.

82
3.1.1 Terms and scope of this inquiry

The purpose of our inquiry is to examine the apparent failure of legal and judicial
processes in the Gongadze case and the reaction of institutions and civil society to the
case. We stated at the outset that: The inquiry will not attempt to undertake any
forensic investigation of the circumstances of the murder. Rather it will examine
whether the forensic investigation has been properly undertaken and, if not, why not.
The inquiry will examine the political and social circumstances that surrounded the
murder; political and social factors that have hindered a full investigation; the
response of relevant state institutions and civil society to the case and their role in
advancing and/or hindering the investigation; and the weakness in legal and political
systems highlighted by the case.
231

Our sources of information for this third report have been: (i) Ukrainian media
outlets; (ii) official documents; (iii) the BBC Monitoring archive; and (iv) interviews
with key figures, including deputy prosecutor general Mykola Holomsha, Myroslava
Gongadze and her legal representative, Oleksiy Podolsky, and journalists.

3.2 Trial of participants in the kidnapping

On 8 August 2005, the PGO announced that it had completed its investigation into
accusations against three former MIA officers Valeriy Kostenko, Mykola Protasov
and Oleksandr Popovych under Article 93 (plotting to commit a premeditated
murder by an organised group) and Article 166, Part 3 (abuse of powers) of the
Ukrainian Criminal Code. On 23 November 2005, the PGO sent cases to court under
these provisions. This prosecution was separated from case No. 60-1241 on the
premeditated murder of Georgy Gongadze, pre-trial investigation of which was to be
continued by the PGO.
232
There was concern among politicians, journalists and civil
society that this separation of the cases would lead to an indefinite postponement of
the investigation of the instigators and organisers of the killing: this investigation is
dealt with in Sections 3.3-3.6 below.

On 28 November 2005, the Supreme Court ruled that the case would be heard by the
Kiev court of appeal; on 19 December preliminary hearings were held; on 9 January
2006, the court, presided over by Judge Irina Hryhoryeva, held its first session, at
which the case was opened and adjourned until 23 January.
233
Two of the defendants
entered guilty pleas, and one entered a plea of partial guilt, which he said he would
explain during his testimony in court.
234

In the first weeks of the court case, there was some public criticism of the fact that
certain sessions were closed to the public. Lawyers for the PGO argued that because
members of police intelligence units would be called as witnesses (according to press

231
Scope and aims of the inquiry, agreed at a meeting of sponsoring organisations in Brussels on
5 November 2003.
232
UNIAN news agency, Kiev 28 November 2005 (BBC Monitoring); Interfax-Ukraine news
agency, Kiev, 0932 GMT, 25 November 2005 (BBC Monitoring).
233
TV 5 Kanal, Kiev, 1000 and 1300 GMT, 9 January 2006 (BBC Monitoring).
234
Segodnya, Kiev, 11 February 2006 (BBC Monitoring).
83
reports, there were up to 15 witnesses), the trial should be partly closed; lawyers for
the defendants also argued against the use of recording devices by journalists at the
trial; and on 22 March 2006 the Ministry of Internal Affairs declared case material to
be top secret, which required all attendees at court to obtain security clearance.
Andriy Fedur, the lawyer who was at that time representing Georgy Gongadzes
mother Lesya Gongadze, was among those who demanded complete openness of the
trial; Valentyna Telychenko, representing Myroslava Gongadze, accepted that the trial
should be partly closed to conform with legislation on state secrets. Having heard
arguments and requested expert advice, Judge Hryhoryeva has closed some, but not
all, sessions of the trial.
235

Telychenko summed up the progress of the trial during 2006 in an end-of-year
interview, saying that the court had heard testimony from the three accused, a victim
of the crime (Myroslava Gongadze), and 24 witnesses out of a total list of 47. These
included: three employees of law enforcement agencies; Sergei Shushko, who with
his late father Vladimir Shushko had found the body at Tarashcha on 3 November
2000 that is believed to be Gongadzes; journalists who worked with Gongadze
including Olena Prytula, Lavrentiy Malazoniya, Konstantin Alaniya and Ludmila
Dobrovolskaya; and Igor Vorotyntsev, the Tarashcha coroner. Telychenko said that
when sittings reopened in 2007, representatives of the victims of the crime intended to
call other witnesses not yet listed.
236

3.2.1 Political pressure on the court

This inquiry notes with concern that deputies to the Verkhovna Rada (parliament)
have on several occasions made unsubstantiated derogatory comments about the
conduct of the trial. The trial judge was denounced from the parliamentary tribune
without any reasoned explanation. Such comments can not possibly have helped the
work of the court, and, on the contrary since all judicial appointments in Ukraine are
subject to political approval could be interpreted as, potentially, a form of pressure
on the judge.

On 5 September 2006, Aleksandr Moroz, speaker of parliament and leader of the
Socialist Party, commented negatively on the work of Judge Hryhoryeva, bracketing
her conduct of the case with that of the PGO and giving no further explanation. In
remarks to parliament about the Gongadze case, Moroz said: To continue this
comedy with the investigation [] is shameful, and it wont work. The judge [our
emphasis] and the prosecutors in this case are bringing shame on themselves. [] we
can not continue to mark time for this imitation of an investigation and trial [our
emphasis].
237
It seems incongruous that Moroz is linking the failings of the
prosecutor with the conduct of the trial.

On 15 September 2006, Sergei Golovaty, a former justice minister and appointed
representative of Georgy Gongadzes mother Lesya, who then represented the Our
Ukraine bloc led by President Yushchenko and is now in the Party of Regions, stated
in parliament that the process of the trial was a political trial, which in plain language

235
Segodnya, Kiev 11 February 2006 (BBC Monitoring); UT1, Kiev (in Ukrainian) 1900 GMT 22
Mar 06 (BBC Monitoring).
236
Ukrayinska Pravda, 26 December 2006.
237
Verbatim record of the Verkhovna Rada session, 5 September 2006.
84
is called a farce.
238
He in no way justified this statement, apart from making
reference to the fact that some of the trial is being conducted behind closed doors
(discussed above).

We are concerned that senior political figures should attempt to discredit the judge
and the conduct of the trial, without explaining why.

3.3 Investigation of criminal activity within the Ministry of Internal Affairs

In our previous reports, we criticised the PGO for its reluctance to investigate the
Gongadze case in connection with other criminal activity within the MIA. Such
activity included (i) the conduct within the MIA of a system of intimidation of
political opponents and dissidents, to which Gongadze fell victim; and (ii) the conduct
of kidnappings and murders for private, non-political gain by informal networks of
MIA officers, former officers and criminals.

Immediately after the Orange Revolution, hopes were raised that such issues would be
taken into account. It was hoped that the political changes in Ukraine would create
better conditions for the investigation into the instigation of Gongadzes murder to
progress, and that it would focus on the chains of command in the MIA, including
formal, informal and illegal relationships. This was clearly understood in the
Ukrainian political establishment: in May 2005, Yuri Lutsenko, then Minister of
Internal Affairs, responded to sceptics, who maintain that the death of Yuri
Kravchenko has broken the thread leading to those who ordered the crime, by saying
that very many witnesses in the case are still alive, including some in parliament
and some top officials in the law-enforcement agencies now in retirement.
239

More than two years later, there is no indication that these highly-placed witnesses
have been interviewed, or that, in general, the investigation of the instigators of
Gongadzes murder has moved in this direction. On the other hand, (i) some progress
has been made in the PGOs investigations of the two types of criminal activity (i.e.
political and non-political) within the MIA, and (ii) as a result of the efforts of
journalists and others, and as a result of the announcement of reforms in the MIA by
the government, more information has come into the public domain about these
criminal activities. Here we summarise the new information that has become available
on these two types of illegal activity.

3.3.1 The Podolsky case and the system of political intimidation

On 9 June 2000, Oleksiy Podolsky, a journalist and political activist, was abducted,
beaten up, tortured by being strangled with a belt, and left, severely injured, in a
forest. His attackers who, later investigations showed, were a group of police
officers led by Oleksiy Pukach threatened to kill him unless he stopped his civil and
political activities. The similarities with the Gongadze case are remarkable: the leader
of the gang, the manner of abduction, the method of torture, and the type of threats,
were the same. The only substantial difference was that Podolsky escaped with his
life. The Podolsky case showed that the attack on Gongadze was not unique, but that

238
KID news agency, 15 September 2006; Delovaya Nedelia, 15 September 2006.
239
See this document sections 1.5.2 and 1.5.3 (January 2005), and Part 2 (September 2005),
especially sections 2.2.1 and 2.2.3; Lutsenko in Zerkalo Nedeli, 14 May 2005.
85
Pukach and other officers in the MIA were more than once called on to deal in this
fashion with journalists, or other people considered undesirable.

Podolsky and his friends faced obstructions to having his case investigated similar to
those faced by Gongadzes family and friends. Podolsky told this inquiry that
immediately after he was attacked, he wrote a statement claiming that Kravchenko,
then Minister of Internal Affairs, had ordered the attack, and demanding that that
aspect of the case be investigated. He had been a member of Mi, a civil society
group that campaigned on political and human rights issues, and the group had issued
a declaration complaining of a campaign of surveillance and harassment against it.
Other members of the group had been beaten, less seriously, by unknown assailants.
Despite all this, it was only two months after the attack, in August 2000, that law
enforcement agencies began an investigation and then only under the paragraph of
the criminal law code on hooliganism.
240

It was only after the Orange Revolution of December 2004, and the subsequent
changes at the PGO, that the investigation of the Podolsky case was accelerated, and
successfully brought to court, by the team of investigators headed by Roman Shubin
and Yuri Hryshchenko. It is clear from PGO documents that have come into the
public domain that Shubin and Hryshchenko considered the Podolsky case to be
closely linked to that of Gongadze, and believed that by investigating the organisation
of both attacks, they might uncover a system of intimidation within the MIA of which
they both formed part. In October 2005, investigator Shubin and two investigators
from the SBU, major E. Skulish and major I. Gerasimovich, jointly signed a plan for
further investigating the Gongadze case, entitled Plan of Further Investigative
Activity and Operational-Search Measures in Criminal Case No. 60-1241 on the
Premeditated Murder of the journalist G.P. Gongadze.
241
Among measures to push
forward the investigation of the instigators of Gongadzes murder which are fully
listed in Section 3.6.1 below Shubin and his SBU colleagues proposed to investigate
those who ordered, and carried out, the attack on Podolsky, and to investigate those
who had obstructed the investigation of the Podolsky case.

The investigation of those who carried out the attack on Podolsky was completed last
year, the case went to the Kiev court of appeal, and on 8 May 2007 a verdict was
reached: two former policemen, former colonel Mykola Naumets and former major
Oleh Marynyak, were found guilty of attacking and kidnapping Podolsky. They were
sentenced to three years imprisonment, stripped of their ranks, and barred from
senior posts in future. During the pre-trial investigation, Naumets admitted his guilt,
repented, and asked the victim and his family for forgiveness, as a result of which
Podolsky and his lawyers asked for minimum punishment for Naumets. The
prosecution stated in court that the perpetrators of this crime were Naumets,
Marynyak, and General Pukach. The latter is also alleged to have led the attack on
Gongadze, and is believed to have left Ukraine and is the subject of an Interpol search

240
Interview with Oleksiy Podolsky, 2 March 2007.
241
The deputy prosecutor general, Mykola Holomsha, confirmed to this inquiry the veracity of the
text of this document, which was leaked and published on the internet in December 2006. Interview
with Mykola Holomsha, 3 July 2007; Plan dodatkovikh slydchikh dyi ta operativno-rozshukovikh
zakhodyv u krimynalnyi spravy no. 60-1241 za faktom umisnogo vbivstva zhurnalysta Gongadze
G.P., published with commentary by Stanislav Rechinskii at
<http://www.ord.kiev.ua/categ_1/article_51160.html> (accessed 15 January 2007).
86
warrant. The court heard that Pukach, Naumets and Marynyak abducted Podolsky,
took him to a forest outside the village of Petrovske in Pryluky district, Chernihiv
region, beat him, up and threatened to kill him unless he stopped his civil and political
activities. When threatening murder, they showed Podolsky a canister and a spade.
Pukach tortured Podolsky by strangling him with a belt.
242

For the investigation team led by Shubin and Hryshchenko, the attack on Podolsky
was one piece of a larger jigsaw that included the Gongadze case. Their Plan of
Further Investigative Activity set out a method of tracing the path by which the
Gongadze murder was instigated, initially by examining Pukachs formal and
informal links with other MIA officers, and of simultaneously tracing the path by
which the attack on Podolsky was organised. One of the investigators hypotheses
was that whoever ultimately ordered Gongadzes murder may have used networks run
by two of the most senior MIA officers, Eduard Fere and the late Yuri Dagayev, and
others.

Among the plans proposals were: (i) to widen the scope of the investigation to
consider the contacts, superior officers etc of Pukach, who had organised the attacks
on both Podolsky and Gongadze having received an illegal instruction from senior
officials of the MIA who have not yet been identified by the investigation; (ii) to
examine the significance of contacts after Gongadzes murder between Pukach,
Dagayev and Fere, and to examine evidence of their involvement in the planning of
Gongadzes murder; (iii) in this connection, to investigate further the transfer of
Gongadzes body to Tarashcha; (iv) in this connection, to investigate the destruction
of documents relating to the Gongadze case in 2001 and in 2003 the crime in
connection with which Pukach was detained in 2003 in the first place by
questioning officials of the Chief Directorate of Criminal Investigations; and (v) in
this connection to ascertain those persons who were involved in erecting obstacles to
the investigation and solution of a serious crime, i.e. the premeditated murder of the
journalist G.P. Gongadze, and in the first instance to question a series of named
senior officials who had failed to provide documentation to the PGO.

One breakthrough in the investigation, which enabled investigators to proceed along
this path, was the recording of testimony by Aleksandr Popovych, one of the three
officers now on trial for his part in the attack on Gongadze. Popovych, who had been
Pukachs driver, told investigators, and repeated in court, that Pukach, Fere and
Dagayev met at a restaurant in late October 2000, five or six weeks after Gongadzes
death, and discussed Gongadzes death and the need to rebury his body. A journalistic
investigation of this issue, on the web site Glavred.info, suggested that there is a
possibility that Dagayev, then Kuchmas chief of staff, had conspired together with
Fere and Pukach to organise Gongadzes murder without the knowledge of Kuchma
and Kravchenko. We regard this as a credible hypothesis that should be further
tested.
243

242
UNIAN news agency, Kiev, 8 May 2007 (BBC Monitoring).
243
Plan dodatkovikh slydchikh, op. cit.; Glavred.info, Novye imena v dele Gongadze ili
Molchanie generalov, part 1, <http://glavred.info/archive/2006/09/13/115242-6.html> (accessed
23 July 2007).
87
When we compiled our previous reports, we were unaware of the interest being
shown by the investigating officers in the role of Fere and the late Dagayev. It is
worth recounting published information about their careers.

Fere, aged 71, began work in the MIA in 1962. From 1977 Fere worked at the highest
level of the MIA, as a deputy head of its Chief Committee. In 1984-92 he headed the
7th directorate of the MIA, which, according to a journalistic investigation, had in
Soviet times been responsible for surveillance of dissidents and for punishing them
by means of taking them out to the woods
244
exactly the method used against
Podolsky and Gongadze. In 1992-95, Fere headed one of the MIAs departments
dealing with criminal investigations. In 1995, when Kravchenko became Minister of
Internal Affairs, Fere was appointed to head the ministry apparatus; in November
2001, after his friend Dagayev had become head of the state administration, Fere
became an adviser to Dagayev.

Dagayev, a major-general, started work in the MIA in 1972 at the age of 22; from
1993 headed the GAI traffic police of Ukraine; and in the late 1990s became deputy
interior minister, under interior minister Kravchenko; at that time he was involved in
the formation of the elite armed formation Cobra. In February 2000 Dagayev was
appointed, by means of an unpublished, confidential order, as head of the state
administration, effectively President Kuchmas chief of staff.

The wide-ranging investigation proposed by Shubin and his colleagues into the MIAs
system of intimidation, and the extent to which it formed the context for the murder of
Gongadze, appears to have foundered for three main reasons:

Firstly, Dagayev died in mid 2003, and from about the same time Fere has been
in a coma, from which doctors do not expect him to recover;

Secondly, Shubin and Hryshchenko were removed from the investigation at
some point in the year following this plan being drawn up;

Thirdly and most important, we presume that since strong political support
would have been required for the investigation to proceed along these lines
that there has been either negligence or obstruction at the political level.

The death of Dagayev and illness of Fere, together with the death of interior minister
Kravchenko and the disappearance of Pukach, mean that, with respect to the
organisation of Gongadzes murder within the MIA, none of the most important
potential witnesses known to investigators can be questioned. Not surprisingly, the
fates of Dagayev and Fere have been the subject of a considerable amount of media
speculation. Fere suffered from a stroke in June 2003 that left him in a vegetative
state; since then he has been in a coma, in the central MIA hospital, and is not
expected to recover; he has lost his functions of muscle movement and speech. Three
weeks after Feres stroke, Dagayev also suffered from a stroke which led, after an
unsuccessful operation at an Austrian clinic, to his death.
245
Suggestions that they may

244
Glavred.info, Novye imena v dele Gongadze ili Molchanie generalov, part 1, op. cit.
245
Glavred.info, Novye imena v dele Gongadze ili Molchanie generalov, part 2,
<http://glavred.info/archive/2006/09/14/134142-8.html>, accessed 23 July 2007.
88
have been poisoned have been published in the Ukrainian media, and we believe that
this issue should be considered by the PGO.

3.3.2 Informal networks conducting non-political criminal activity inside the MIA

From 2002, there has been public discussion in Ukraine of possible links between the
instigation and organisation of Gongadzes murder and the second type of illegal
activity within the MIA, i.e. murder, kidnapping and other crimes carried out for
private gain rather than for political ends.

Much of this discussion has related to the case of the werewolves, a gang that
included serving and former MIA officers and carried out 11 murders and a series of
kidnappings between 1996 and 2000, mainly aimed at the extortion of ransom
payments from victims families. Details of the case were first made public by
investigative journalists in 2002;
246
under Kuchma, investigation of it by the law
enforcement agencies proceeded slowly, and it was finally referred to court by the
PGO straight after the Orange Revolution.
247
The trial of 12 gang members, including
four former MIA officers, began in the Dneprovsky district court in November
2005.
248

There are indirect links between the werewolves case and the Gongadze case, and
possibly direct links. The possibility of a direct link, mentioned in our previous
reports, was raised by Ihor Honcharov, a leader of the werewolves gang and senior
MIA officer, who died in police custody in August 2003. Before his death, Honcharov
wrote letters alleging that the werewolves had undertaken Gongadzes murder on
the orders of interior minister Kravchenko, and that others within the MIA wanted to
kill him to prevent him making this public. Subsequently, documentation came into
the public domain suggesting that Honcharov may have been murdered, or his death
may have been hastened, by the improper administration of anaesthetic.
249
It is outside
the scope of this report to deal with Honcharovs case in detail. But media freedom
campaigners and other observers concur that his testimony was probably unreliable,
and that the letters he wrote may have been used deliberately to disorient the
investigation of the Gongadze case and divert it from the truth, rather than to push it
forward. But in either case that Honcharovs assertions had some merit, or that they
were the subject of manipulation a study of the background to them may help to
clarify the situation within the MIA in which the attacks on Gongadze and Podolsky
were organised.

At least as significant as this possible direct link is the indirect link between the
werewolves case and the Gongadze case. The werewolves case revealed a system
of illegal activity within the MIA that continued through the 1990s and survived into
the new millennium. This system combined straightforward criminal activity such as
that carried out by the werewolves, and criminal activity carried out for political
reasons, such as the attacks on Gongadze and Podolsky.

246
Segodnya, Kiev, 1 August 2002 and 27 November 2002.
247
See for example Zerkalo Nedeli, Kiev, 5 March 2005.
248
ProUA.com, 29 November 2005, <http://www.proua.com/news/2005/11/29/221812.html>.
249
See section 1.5.3 (January 2005) of this document.
89
The existence of such a problem was tacitly acknowledged by President Kuchma as
early as 6 February 2003, when he issued a decree proclaiming the work of the MIA
directorates on organised crime and corruption to be inadequate and ineffective, and
ordering changes. It was subsequently confirmed that officers linked to the
werewolves case and other illegal activity worked in the departments to which
Kuchma referred, e.g. the Chief Directorate of Criminal Investigations (in which
General Pukach also worked) and the Directorate to Combat Organised Crime.
250

The issue of criminal activity within the MIA was repeatedly discussed by Ukrainian
journalists long before the Orange Revolution, for example by Aleksandr
Primachenko of Zerkalo Nedeli, who wrote:

Many officers of the law enforcement agencies are today convinced that what is
unique about the werewolves gang, about whom so much is said and written,
is not its existence, but the fact that it has been uncovered. Because in our state,
in the transitional period, such informal groupings are certainly not isolated
cases. Not if you define them by the concrete criminal activities with which
their members are incriminated, at any rate.
251

Primachenko, in order to show the scale of the problem, pointed out that in 2003 the
courts had convicted 160 law enforcement officers, including 139 from the MIA, of
criminal offences. In December 2006 it was reported that the case of a further gang of
seven werewolves, who had been MIA employees based in Kiev and Zhitomir, had
been sent to court.
252

After the Orange Revolution, Yuri Lutsenko, the new Minister of Internal Affairs,
announced wide-ranging reforms of the MIA. One of the changes was that the
Directorate to Combat Organised Crime was reorganised. Lutsenko stated in a
newspaper interview that the system of surveillance, to which Gongadzes attackers
had belonged, had also been completely reorganised, so that MIA officers activity is
systematically checked by SBU officers.
253
However, as is discussed in Section 3.6 of
this report, there is no evidence that these efforts to reform the ministry have been
accompanied by any substantial progress by the PGO in examining the role played by
these criminalised sections of the MIA, or networks within them, in the instigation
and organisation of Gongadzes murder. On the contrary, the proposals by the Shubin-
Hryshchenko team in this regard appear to have been abandoned.

3.4 Lack of progress in making use of the Melnichenko tapes

The revelation of the Melnichenko tapes in the Ukrainian parliament in November
2000, by Socialist party leader Aleksandr Moroz, was a key turning point in the
Gongadze case. Before then, Gongadze was another in a long list of murdered
journalists whose attackers seemed likely to escape justice. The tapes, made by Major

250
RFE/RL Organized Crime and Terrorism Watch, 27 March 2003.
251
Zerkalo Nedeli, 26 June 2004.
252
Persho Dzherelo web site, 18 December 2006,
<http://jerelo.com.ua/ru/news/show_print_version/12135>.
253
Fakty i Kommentarii, Kiev, 6 January 2006 (BBC Monitoring); Taras Kuzio, Kyiv Launches
Far Reaching Reform of Interior Ministry, Eurasia Daily Monitor web site, 4 March 2005.
90
Melnichenko in the office of President Kuchma, for whom he had served as a
bodyguard, amounted to prima facie evidence that Kuchma and other senior
politicians such as Volodymyr Lytvyn, Leonid Derkach and the late Yuri Kravchenko
had discussed harming Gongadze in the weeks leading up to his kidnapping.

In the period between the revelation of the tapes and the Orange Revolution
(November 2000-December 2004), there were significant barriers to the tapes and/or
Major Melnichenko ever being brought before a Ukrainian court in the Gongadze
case. Melnichenko had fled the country, reasonably calculating that the publication of
the tapes put his life in danger. Successive Prosecutor Generals, bowing before
political pressure from Kuchma and others, declined to consider the connection
between the tapes and the Gongadze case, dismissed credible examinations of the
recordings that confirmed their authenticity, and frequently made statements designed
to discredit the recordings.
254
As a result of the Orange Revolution, hopes were raised
that the political opposition to using the tapes, and testimony by Melnichenko, in
court, would be overcome. Shortly after the Orange Revolution, in March 2005,
Svyatoslav Piskun, who was reappointed Prosecutor General as the result of a
decision taken by the courts during the Orange Revolution, closed a case that had
been opened on the illegal surveillance of the presidents office (no. 49-945), which
constituted a significant barrier to Melnichenkos return to Ukraine.
255

In the period since then, i.e. just under two-and-a-half years, Major Melnichenko has
visited Ukraine at least twice, in November 2005 and September 2006. He has met
with officials at the PGO on at least six occasions, addressed parliament and made a
large number of public statements. But he and the PGO have missed, declined, or
avoided one opportunity after another to cooperate with each other to meet three
essential legal prerequisites for the tapes to be used as evidence in the Ukrainian
courts, i.e.:

(i) that the original tapes made by Melnichenko (rather than copies) are
delivered to the PGO and attached to the case file on the premeditated murder of
Gongadze;

(ii) that the apparatus used to make the tapes is delivered in the same way; and

(iii) that Melnichenko himself gives testimony to the PGO, with a view to
repeating it in court, which (a) sets out the conditions under which the tapes
were made and (b) provides a motivation for making them (which was clearly
an illegal act) that will be accepted as substantial, enabling the court to accept
them as evidence.

Up to the time of writing, neither the original tapes nor the apparatus on which they
were recorded have been made available by Melnichenko. Yuri Felshtinsky of the
Civil Liberties Foundation, a non-governmental body sponsored by the Russian
billionaire Boris Berezovsky, with which Melnichenko at one time cooperated, in

254
See section 1.4 (January 2005) and section 2.3 (September 2005) of this document.
255
Segodnya, Kiev, 17 March 2006; also interview with Mykola Holomsha, deputy prosecutor
general, 3 July 2007.
91
November 2005 handed to the PGO copies of the tapes on CD disks, which the
Foundation had received from Melnichenko.
256

This two-and-a-half year delay, in a case that was already four years old at the time of
the Orange Revolution, has been excused on the parts of both the PGO and Major
Melnichenko under pretexts that scarcely bear repetition. At the same time, secondary
and irrelevant issues relating to the tapes have repeatedly been discussed in public by
the PGO and other officials.

For example, in September 2006, Prosecutor General Aleksandr Medvedko reported
that phonoscopic tests were being carried out on the tapes. In July 2007, deputy
prosecutor general Holomsha stated, in an interview with this inquiry, that tests were
being arranged in the presidents office to determine whether the Melnichenko
tapes could really have been made there.
257
These tests even became the subject of a
public dispute between Melnichenko and the present head of the presidential
administration, Viktor Baloha.
258
But such tests could have little bearing on the
preparation of any legal proceedings in the Gongadze case, since all that is needed for
these is the original tapes, the original apparatus used to make them, and
Melnichenkos own evidence.

Publicly, therefore, the impression has been created that a great deal of activity is
going on around the tapes, while there has been almost no progress towards
presenting them as evidence in court. Major Melnichenko has given testimony to the
PGO, but has stated publicly that he will not give evidence in court until various
conditions are met. So on 15 September 2006, the sixth anniversary of Gongadzes
disappearance, his friends and relatives witnessed the sight of Melnichenko telling
parliament that he would only testify in court when the tapes are accepted as
evidence, and the then Prosecutor General Medvedko retorting that the tapes could
not be accepted because Melnichenko had failed to provide evidence of their
authenticity.
259

One of the difficulties of researching the issue of the tapes is in understanding Major
Melnichenkos continued reluctance to meet the criteria needed to bring the case to
court. In the immediate aftermath of the Orange Revolution, when the political
situation in Ukraine remained unstable, he expressed distrust of the PGO and other
authorities and this is entirely understandable, given the conduct of the Gongadze
case by these authorities. In response to these expressions of distrust, not only was the
case against Melnichenko closed in March 2005, but guarantees of his personal safety
given both by government ministers and the security services.

While we in no way wish to suggest that the conditions in Ukraine were ideal, or that
the standards of the judicial system are particularly high, it is also unrealistic to expect
that these will improve rapidly. If the case on the premeditated murder of Gongadze

256
Interfax-Ukraine news agency, Kiev 1511 GMT, 2 November 2005 (BBC Monitoring).
257
TV 5 Kanal, Kiev, 0910 GMT 8 September 2006 (BBC Monitoring); interview with Mykola
Holomsha, deputy prosecutor general, 3 July 2007.
258
TV 5 Kanal, Kiev, 1100 GMT 20 June 2007 (BBC Monitoring); Ukrayinska Pravda, 20 June
2007.
259
TV 5 Kanal, Kiev, 0720 GMT and 0850 GMT, 15 September 2006 (BBC Monitoring). The
speeches by both Melnichenko and Medvedko were broadcast live.
92
(i.e. the case concerning not only those who carried out the crime but also those who
instigated it) is ever to come to court, it will be in the Ukrainian court system that
currently exists. Given these realities, it is hard to explain Major Melnichenkos
reluctance.

An additional problem is that there is now a great deal of contradictory information in
the public domain about the way that the Melnichenko tapes were made. Various
credible sources, including the late Aleksandr Litvinenko, a close friend and former
security services colleague of Melnichenko, had long ago stated that Melnichenko
worked with other security services officers in making the tapes.
260
We remain of the
view expressed in our previous reports that however the tapes were made, they
remain an essential source of evidence in the Gongadze case. Nevertheless, it has now
become clear that the issue of how the tapes were made may have some bearing on
Melnichenkos reluctance to give evidence about them.

In March 2006, information came into the public domain suggesting that Melnichenko
had worked closely with Socialist leader Moroz and former Prime Minister Yevhen
Marchuk during 2000, when he made the tapes. This information, in the form of
statements recorded in private by Melnichenko himself, also throws doubt on the
version of events that Melnichenko has given in public.

As a result, Ukrayinska Pravda, the site founded by Georgy Gongadze, called
editorially for the case against Melnichenko for illegally bugging Kuchmas office to
be reopened. In a significant shift of its editorial line concerning the death of its
founder, Ukrayinska Pravda argued that this was now the best means of compelling
Melnichenko to give evidence vital to the case, in a way that he has failed to do since
making the tapes public.

The evidence that has raised these questions was published in March 2006 by
Ukrayinska Pravda, in the form of a transcript of a conversation in 2003 between
Melnichenko and a potential biographer, the Radio Liberty journalist Roman
Kupchinsky. The conversation was published by Ukrayinska Pravda in text form, with
MP3 audio files also made available. Kupchinsky also gave evidence to the
prosecutors office and handed the recordings to investigating officers. In the
recording, Melnichenko can be heard saying that he shared with Marchuk and Moroz
information received as a result of bugging Kuchma as early as 1999 and 2000,
although the two have denied this before.
261

Ukrayinska Pravda stated that the publication of the tapes had not been sanctioned by
Melnichenko. By way of editorial comment, the site said that since Gongadzes death,
Marchuk and Moroz had categorically denied they had anything to do with the
making of Melnichenkos recordings. Ukrayinska Pravda argued that it has been
proved that Yevhen Marchuk was in constant contact with Melnichenko in 1999 and
encouraged him, including financial incentives, to make recordings in Kuchma's
office; there is reason to believe, moreover, that Moroz cooperated with
Melnichenko long before Georgy Gongadze disappeared from the beginning of
2000.

260
See section 2.3.1 (September 2005).
261
Ukrayinska Pravda, 15 March 2006.
93

In the recordings, Melnichenko explains how he first met Marchuk in the early spring
of 1999; how he took money from him; how he conveyed information to him that he
had learned from the recordings; how he met Moroz in early 2000; how Moroz
arranged secret means of meeting; how he passed on information to Moroz about
provocations against opposition politicians being discussed in Kuchmas office.

Ukrayinska Pravda further reported that, although Melnichenko had visited Ukraine
and held six meetings with officers from the PGO, he had refused to talk about the
circumstances under which he made his recordings or explain the matter of the
original recordings. Melnichenko explained his reticence at first by claiming that
Myroslava Gongadze had asked him not to answer questions; this was subsequently
denied publicly by Myroslava Gongadze. Ukrayinska Pravda concluded: Earlier, the
criminal case against Melnichenko seemed to hamper the investigation of the
Gongadze case. Now, because of Mykolas behaviour, the situation has changed to
exactly the opposite. Only reopening the case on illegal bugging of Kuchmas office
would persuade Melnichenko to speak, Ukrayinska Pravda argued.

In practice, Melnichenkos refusal to give any details about how the tapes were made,
together with the continued weaknesses of the PGOs investigation, have obstructed
any significant progress towards the Melnichenko tapes being brought to court as
evidence. We believe that unless the PGO can bring the tapes to court without
resorting to reopening a criminal case against Melnichenko, it should consider that
course of action.

3.5 Leading politicians attitude to the investigation

Given the importance of the Gongadze case for the development of Ukrainian
democracy, we believe that the attitude of leading politicians who have either
themselves suggested that they have information about the case, or who may logically
be believed to have that information, deserves to be scrutinised. Among the questions
that may be raised are the following.

3.5.1 Aleksandr Moroz

Aleksandr Moroz, speaker of the Ukrainian parliament and leader of the Socialist
Party, is clearly an important witness in the Gongadze case. Moroz, who received the
Melnichenko tapes from Major Melnichenko and played them in parliament in
November 2000, has spoken many times in public about the case. Nevertheless some
questions about his role remain unclear even now, seven years after Gongadzes
death.

Firstly. Moroz has stated that he had known that Gongadze was being followed by the
security services, and warned Gongadze about this. In an interview in February 2001,
he stated: Since I left the post of parliamentary speaker [in May 1998], I have
retained good contacts with high-ranking employees from the Ministry of Internal
Affairs, the SBU and other structures. From those sources [NB], I learned that
Gongadze had been shadowed. I told Gongadze that something serious was being
prepared. However, he could not believe it. [] I advised him to write to the
94
PGO.
262
On 7 September 2006, Moroz again publicly asserted, at a press briefing,
that he hoped to give evidence in court about the situation, when he had warned
Gongadze, that he was being followed, and urged him to get in touch with the PGO
about this.
263

These statements raise the questions: from which high ranking employees from the
Ministry of Internal Affairs, the SBU and other structures exactly did Moroz learn of
the surveillance of Gongadze? What else did he know about the system of
intimidation within the MIA? Has he yet given testimony to the PGO on these issues?
What else has he done with this information in the two-and-a-half years since the
Orange Revolution?

Secondly. It remains unclear when Moroz first came into contact with Melnichenko,
and what the nature of their collaboration was. Moroz has many times insisted that he
met Melnichenko for the first time on 18 October 2000, i.e. more than a month after
Gongadze was murdered. This is however contradicted by other accounts, i.e.:

(a) the account of the cassette scandal by Volodymyr Tsvil, who helped to
protect Melnichenko when he first left Ukraine in November 2000, who wrote
that Moroz introduced him to Melnichenko in the spring of 2000;
264

(b) Melnichenkos own account, recorded in private and published by
Ukrayinska Pravda in March 2006 (see above), which says that he was put in
touch with Moroz in early 2000, and from that time gave him information based
on the material in the recordings.

Since by early 2000 Moroz already knew enough about the system of intimidation in
the MIA to be able to warn Gongadze about the surveillance being conducted, and
given the repeated public suggestions that he met with Melnichenko prior to the date
he himself suggests, it is surely in the investigations best interests that he testifies in
detail on these issues.

Certainly the Shubin-Hryshchenko team at the PGO, when it sought to widen the
investigation in November 2005, considered the contacts between Melnichenko and
Moroz to be an important avenue to follow. In their Plan of Further Investigative
Activity, they proposed to investigate the circumstances under which N.
Melnichenko and A. Moroz had come to know each other, by establishing which
individuals apart from Melnichenko might have taken part in the recording operation
in the presidents office; to whom and under what circumstances Melnichenko handed
the tapes that he had made; who had offered the tapes to Communist party leader Petr
Simonenko; what contact if any there had been between Moroz, Gongadze, and
various other politicians; and whether Melnichenkos associates A.I. Evko and
Pashun had been involved in the copying and publication of the tapes.
265
When
interviewed by this inquiry in July 2007, deputy prosecutor general Holomsha

262
Vecherniye Vesti, Kyiv, 2 February 2001, quoted in J.V. Koshiw, Beheaded: the killing of a
journalist (Reading: Artemia Press, 2003), pp. 80-81.
263
UNIAN news agency, 7 September 2006; www.glavred.info, 7 September 2006.
264
Tsvil, Volodymyr, V tsentre kassetnogo skandala (Starnberg, Germany, 2004), p. 24.
265
Plan dodatkovikh slydchikh, op. cit.
95
declined to comment on whether these avenues of investigation were still being
followed.

In its editorial commentary on Melnichenkos recordings, Ukrayinska Pravda asserted
that Moroz had not cooperated with the PGOs investigation, in response to which
Moroz sued for libel. On 26 December 2006, the Pechersky district court upheld
Morozs complaint and ordered Ukrayinska Pravda to publish a correction, and
Ukrayinska Pravda announced that it intended to appeal.
266
In fact Morozs assertion
that he has cooperated with the investigation does not fully agree with accounts by the
PGO itself. The PGO investigator Oleksandr Kharchenko confirmed, in a letter to
Ukrayinska Pravdas lawyers, (i) that investigators had met with Moroz in December
2000, and again in 2005, but that these meetings had always been held in the
parliament building, and (ii) that the meetings always ended due to Morozs insistence
that he had other duties, i.e. before the questioning was completed. A further letter
from investigator Hryhorhi Harbuz, who had worked on the Gongadze case but was
then removed, and subsequently retired from the PGO, had also complained of the
difficulty of arranging to speak with Moroz about the case.
267
This inquiry wrote to
Moroz to ask for comment on all the issues raised, but received no reply.

3.5.2 Yevhen Marchuk

Melnichenko has stated that he first began recording conversations in President
Kuchmas office at the behest of Yevhen Marchuk, the former prime minister and
former senior KGB officer, who afterwards, in late 1999, was appointed as secretary
of the National Security and Defence Council of Ukraine. We have been unable to
find any record of any public statement by Marchuk about the Gongadze case. As a
former prime minister and former senior KGB officer, he should have information
about the system of intimidation that operated in the MIA, and also should be able to
corroborate or dispute Melnichenkos version of events. We are not aware that he has
given testimony to investigators.

3.5.3 Volodymyr Lytvyn

The involvement in the Gongadze case of Volodymyr Lytvyn, one of Ukraines most
senior parliamentarians, stems from his alleged participation in conversations with
President Kuchma about harming Gongadze that were recorded by Melnichenko.
Lytvyn was an aide to President Kuchma from 1994 to 1999, and was then appointed
head of the presidents office, a position he held throughout 2000. From 2002 to 2006,
i.e. both before and after the Orange Revolution, Lytvyn was the parliamentary
speaker. The Melnichenko tapes record four conversations where doing harm to
Gongadze is discussed, the participants in which are Kuchma, Kravchenko, Leonid
Derkach and Lytvyn. The conversation in which Lytvyn allegedly participated reads
as follows. This version is based on the copy of the tapes stored at the International

266
Glavred.info, 26 December 2006.
267
Raport by H. Harbuz, 9 February, letter from Viktor Shokin, deputy prosecutor general, to
Aleksandr Moroz, 14 June 2006, and letter from Oleksandr Kharchenko, investigator, to Valentyna
Telychenko (copies made available to the inquiry). On Harbuz, see also section 1.6.1 (f) (January
2005) of present document.
96
Press Institute in Vienna, translated into English by J.V. Koshiw, author of a book on
the Gongadze case:

[Kuchma] Give me the same about Ukrayinska Pravda and And we will
decide what to do with him. He has gone too far.

[Lytvyn] I need to begin a [court] case.

[Kuchma] What?

[Lytvyn] Start a case? [undecipherable]

[Kuchma] Good.

[Lytvyn] The case we will make in duplicates.

[Kuchma] No, I dont need a case.

[Kuchma] Ukrayinska Pravda well is simply too much the scum, fucker,
Georgian, Georgian.

[Lytvyn] Gongadze?

[Kuchma] Gongadze. Well, who is financing him?

[Lytvyn] Well, he actively works with [] Moroz, with Grani [a newspaper
sponsored by the Socialist party]. On Saturday I saw with [Socialist MP
Volodymyr] Makeyenko.

[Kuchma] Maybe take the MP to court, let the lawyers take it to court. This goes
to the prosecutor, right?

[Lytvyn] No, let loose Kravchenko, in my opinion, decide how, and also
[Horbanyeyev, or Komanyeyev?] and Kholondovych [who was head of the
main directorate for logistic control of the MIA].

[Kuchma] Simply shit is there any limit, after all, son-of-a-bitch he needs to
be deported the scum to Georgia and thrown there on his ass!

[Lytvyn] Take him to Georgia and drop him there.

[Kuchma] The Chechens should kidnap him and ask for a ransom!

(Source: IPI, GO3007p2.dmr, 0:07:38-0:10:45, July 3, 2000).
268

We have found no record of any comment by Lytvyn on the Gongadze case prior to
the Orange Revolution. During the revolution, Lytvyn, who had formerly been a
strong Kuchma supporter, switched sides and declared his support for the re-running

268
Koshiw, Beheaded, pp. 73-74.
97
of the elections that the revolutions supporters had demanded. Having retained his
position as parliamentary speaker, he began to comment publicly on the Gongadze
case.

In October 2005, Lytvyn addressed the Parliamentary Assembly of the Council of
Europe on Ukrainian integration into European institutions and other issues. The
following question was asked by Matyas Eorsi, a Hungarian deputy:

Mr Eorsi (Hungary). We were very pleased to hear President Yushchenko say
that the Gongadze case would be investigated, but we also heard that you
personally were one of those who were heard on the Melnichenko recording
discussing how to get rid of the critical journalist, Gongadze, with former
President Kuchma. I should very much like to hear your comments.

The official transcript of the session in English, which is not a literal translation,
records the answer as follows:

Mr Lytvyn said the situation was not as clear as had been suggested. Certain
phrases had been added to the report [of the Ukrainian parliamentary
commission on the Gongadze case], there was no conclusion, and he rejected
any suggestion of politicisation.

A reporter from Ukrayinska Pravda was present, and, having heard Lytvyn speaking
in Ukrainian, recorded that Lytvyn had also said that international analysis had
found that the Melnichenko tapes had been doctored. Lytvyn also said that the report
of the Ukrainian parliaments commission on the Gongadze case, which had
suggested that Lytvyn was implicated in the murder, was not objective.
269
If such
international analysis exists, it has never been published. On the other hand, the
most substantial international analysis of the tapes, by former FBI agent Bruce
Koenig who, unlike the specialists mentioned by Lytvyn, made his conclusions
public showed, on the contrary, that the sections of the Melnichenko tapes
recording conversations about Gongadze had not been doctored.
270

In our opinion Lytvyn, who has elsewhere stated that he hopes that the Gongadze case
is resolved, could help the investigation by explaining: which international analysis
showed that the Melnichenko tapes had been doctored and why has it not been
published? How does he account for the contradiction between this and the analysis
by Koenig and other specialists? Why has he not done more in the years that have
passed to resolve these issues? Does he have any record of his conversation with
President Kuchma on 3 July 2000, and it what way was it falsified? We have written
to Lytvyn to ask for comment on these issues, and received no reply.

3.5.4 Politicians statements about the medical expertise on Gongadzes body

We also note the extraordinary statements made by some politicians in the last two
years, casting fresh doubt on one of the established facts in the Gongadze case, i.e.
that the so-called Tarashcha corpse indeed is that of Gongadze. In November 2000,

269
Ukrayinska Pravda, 6 October 2005; verbatim report of PACE session at
<http://assembly.coe.int/Main.asp?link=/Documents/Records/2005/E/0510061000E.htm#4>.
270
98
Russian experts had established with 99.9% certainty that the Tarashcha corpse was
Gongadzes, and three further expert groups from the US, Switzerland and Germany
confirmed this, all admitting a possibility of error of less than 1% and some of less
than 0.01%. (It should be noted that DNA tests can not produce a zero margin of
error; these were as good as any.)
271
There was one test, undertaken by the Genedia
clinic at Munich, Germany, that failed to produce a positive result, but journalistic
investigations have shown that the standard procedures were not followed and that the
biological matter tested may not have come from the Tarashcha corpse.
272

In spite of the certainty that the Tarashcha corpse was Gongadzes, sufficient not
only under Ukrainian law but under all recognised international standards, the
politicians Sergei Golovaty, a former justice minister, and Valeriy Ivasiuk, a former
health minister and member of the parliamentary commission on the Gongadze case,
have again raised this question, which this inquiry regards as solved. Ivasiuk stated at
a press conference in March 2005 that most of the experts had found that the body
was not Gongadzes, despite their conclusions having been just the opposite,
273

while Golovaty stated in September 2005 that he did not accept the results produced
by the various experts.
274

We are disturbed by the possible impact of these statements on the investigation, since
they can add to the public confusion about the case, which in turn creates better
conditions for those who are obstructing progress.

3.6 Investigation by the PGO into the instigators of the murder

3.6.1 Progress of the investigation

On 17 September 2005, five years after Gongadzes murder, and a few weeks after the
PGO completed its case against the three MIA officers who were present when he was
killed, President Yushchenko said that the next stage of the investigation finding the
instigators and organisers of the murder would be much more difficult. Many of
the players are dead, and many of those who are alive have fled in different directions.
[But] I am sure that we possess investigators who will be able to complete this case,
he said.
275

Another two years have gone by, but the investigation has moved forward very
slowly. Investigators regarded by knowledgeable observers as the most capable have
been removed from the case. No action has been taken against officials who
obstructed the investigation at an earlier stage. And one of those who carries the
greatest personal responsibility for obstructing the investigation, former Prosecutor
General Potebenko, has been awarded a state honour.

271
See section 1.3.1 (January 2005) of this document; Koshiw, Beheaded, pp. 176-178; Ukrayinska
Pravda, 1 December 2006.
272
Koshiw, Beheaded, p. 178.
273
ForUM news agency, 2 March 2005, Vremya Novostei, Moscow, 3 March 2005.
274
GlavRed web site, 14 September 2005; ForUM news agency, 14 September 2005.
275
Ukrayina TV, Donetsk 1800 GMT 17 September 2005 (BBC Monitoring).
99
In October 2005, some significant moves were made to take the case forward. But
then a series of changes were made at the PGO that appear first to have slowed down
the investigation and then brought it to an almost complete standstill.

On 8 October 2005, a criminal case was opened under Part 3, Article 365 of the
Ukrainian Criminal Code on the unlawful dismissal on 29 October 2003 of
Prosecutor-General Svyatoslav Piskun by Ukrainian President Leonid Kuchma, on the
grounds that this had significantly hampered the earlier investigation of the
Gongadze case. This raised the possibility of an investigation of the sequence of
events in 2003 that began with Piskuns sacking, and ended with the freeing from
prison of General Oleksiy Pukach, who by almost all credible accounts murdered
Gongadze and would have been a prime witness against those who instigated and
organised the crime.
276

On 12 October 2005, Piskun (who had been returned to his post in December 2004,
during the Orange Revolution), stated that a plan had been approved by Yuri
Lutsenko, Minister of Internal Affairs, and Ihor Drizhchanyy, SBU chairman, for the
second stage of the investigation.
277
It seems probable that Piskun was referring to the
Plan of Further Investigative Activity and Operational-Search Measures in Criminal
Case No. 60-1241 on the Premeditated Murder of the journalist G.P. Gongadze,
drafted by investigator Shubin and two investigators from the SBU, major E. Skulish
and major I. Gerasimovich, which has been referred to above (Sections 3.3 and
3.5).
278
The main points in this document, which was leaked and published on the
internet, and whose authenticity was confirmed to this inquiry by the PGO, were:

(i) proposals to widen the scope of the investigation to consider the contacts,
superior officers, etc., of Pukach, who had organised the attacks on both
Podolsky and Gongadze having received an illegal instruction from senior
officials of the MIA who have not yet been identified by the investigation;

(ii) operational proposals on the search for Pukach;

(iii) it drew attention to the significance of contacts after Gongadzes murder
between Pukach, Dagayev and Fere, and proposed to investigate all the
contacts between Dagayev and Fere, and to examine any possible evidence of
their involvement in the decision to murder Gongadze;

(iv) operational proposals for investigating the transfer of Gongadzes body to
Tarashcha;

276
Source: UNIAN news agency, Kiev, 1030 GMT 9 October 2005, quoting an announcement by
the PGO. (BBC Monitoring).
277
Interfax-Ukraine news agency, Kiev, 12 October 2005 (BBC Monitoring).
278
The deputy PGO, Mykola Holomsha, confirmed to this inquiry the veracity of the text of this
document, which was leaked and published on the internet in December 2006. Interview with
Mykola Holomsha, 3 July 2007; Plan dodatkovikh slydchikh dyi ta operativno-rozshukovikh
zakhodyv u krimynalnyi spravy no. 60-1241 za faktom umisnogo vbivstva zhurnalysta Gongadze
G.P., published with commentary by Stanislav Rechinskii at
<http://www.ord.kiev.ua/categ_1/article_51160.html> (accessed January 2007).
100
(v) proposals to investigate the issue of the destruction of documents relating to
the Gongadze case in 2001 and in 2003, in the first place by questioning
officials of the State Directorate of Criminal Investigations;

(vi) measures to ascertain those persons who were involved in erecting
obstacles to the investigation and solution of a serious crime, i.e. the
premeditated murder of the journalist G.P. Gongadze, and in the first instance
to question a series of named senior MIA officials (Iu. Smirnov, former
minister; O.A. Gapon, former state secretary at the MIA; Iu.E. Cherkasov,
former first deputy state secretary; G.V. Epur, former state secretary at the MIA;
and A.M. Karatsiuba, former head of the secret department) who had failed to
provide documentation to the PGO;

(vii) measures to investigate those who ordered, and carried out, the attack on
Podolsky;

(viii) proposed measures to investigate those who had obstructed the
investigation of the Podolsky case;

(ix) proposals to investigate public statements in September 2000 by the
politician Sergei Golovaty, who said that he had invited Gongadze to a press
conference on 15 September to expose a campaign by Kuchma to discredit
Golovaty; proposals to investigate the circumstances under which N.
Melnichenko and A. Moroz had come to know each other, by establishing
which individuals apart from Melnichenko might have taken part in the
recording operation in the presidents office, to whom and under which
circumstances Melnichenko handed the tapes that he had made, who had offered
the tapes to Communist party leader Petr Simonenko, what contact if any there
had been between Moroz, Gongadze, and various other politicians, and whether
Melnichenkos associates A.I. Evko and Pashun had been involved in the
copying and publication of the tapes.

The publication of this document on the internet did not have entirely positive
consequences. It contained certain details that compromised some witnesses, and
others the publication of which forewarned people who have things to hide about the
investigators plans. The manner of the leak, a year after the document was written,
was perhaps partly a consequence of the public perception that the investigation is
moving too slowly. In any case, we believe that the document touched on many of the
most important avenues that should be followed by the investigation, and it is worth
reviewing what is publicly known about the progress made in the year since it was
drafted.

As far as we can ascertain from publicly available sources, little or nothing has been
accomplished with regard to points (i) on Pukachs contacts and superiors, (ii) on the
search for Pukach (see section 3.6.3 below), (iii) on Fere and Dagayev and (viii) on
the obstruction of the investigation of the Podolsky case. On point (vi) on the
obstruction of the initial investigation of the Gongadze case, and point (ix) on
Melnichenko and various politicians, some interviews have been carried out, but an
enormous amount of work remains to be done.

101
In the case of point (v) on the destruction of documents, progress has been limited, at
least partly due to legislation on state secrets.

The PGO has dealt more or less fully only with points (iv) on the reburial of
Gongadzes body and (vii) on the attack on Podolsky.

When this inquiry interviewed deputy prosecutor general Holomsha in July 2007, we
asked what the main directions being followed by the investigation were. He said (a)
that the veracity of the tapes presented to us by Melnichenko were being checked
by means of a test to be staged in the presidents office a test on tapes that are not
originals, with a machine that is not an original, and therefore can have little bearing
on the case, and (b) that the search for Pukach is continuing. In response to specific
questions he added that the PGO is examining the connection between the Gongadze
and Podolsky cases, and the relationship between Pukach, Fere, Dagayev and other
senior MIA officials.
279

3.6.2 Changes of personnel

On 14 October 2005, around the time the Plan of Further Investigative Activity was
drafted, Prosecutor General Piskun was sacked by President Yushchenko.
280
(Piskun
had been sacked in October 2003, soon after ordering the arrest of Pukach, and
returned to office during the Orange Revolution.)

Soon after Piskuns second departure, deputy prosecutor general Viktor Shokin was
replaced as head of supervision of government agencies by Viktor Pshonka; this was
interpreted as an effective demotion for Shokin, although he retained the title of
deputy prosecutor general. Shokin later said that at this point he was removed from
being in charge of the Gongadze investigation.
281

In September 2006, Renat Kuzmin, who had risen through the ranks of the
prosecutors offices in Donetsk in eastern Ukraine, was appointed deputy prosecutor
general, and was put in charge of the Gongadze investigation. In November 2006, he
spoke publicly about the case, suggesting that the PGO was studying new versions
of the crime.
282
In February 2007, Shokin resigned his post.
283

In April 2007, Medvedko was sacked as Prosecutor General and replaced by Piskun,
who returned to the post for a third time.
284
Piskuns return resulted temporarily in a
weakening of the position of Kuzmin and a strengthening of Holomsha: on 17 May,
Piskun removed Kuzmin from being in charge of the Gongadze case and three other
important cases (those of the poisoning of Yushchenko, the death of nationalist party
leader Vyacheslav Chornovil in 1999 and of alleged financial improprieties by

279
Interview with Mykola Holomsha, 3 July 2007.
280
Zerkalo Nedeli, Kiev, 5 November 2005, and other press reports.
281
Segodnya, Kiev, 18 October 2005 and 24 February 2007 (BBC Monitoring).
282
Kommersant-Ukrainy, 24 November 2006.
283
Segodnya, Kiev, 24 February 2007.
284
Ukrayinska Pravda, Obkom, Interfax, 27 April 2007 (BBC Monitoring).
102
Oleksiy Ivchenko, head of the national oil and gas company), and transferred these to
Holomsha.
285

Many of these changes were correlated with political changes. President Yushchenko
replaced Piskun with Medvedko in October 2005, shortly after the dismissal of the
government headed by Yulia Timoshenko, at a time when the Orange coalition
collapsed and the power of the eastern industrial lobby and the Party of Regions
increased; the Party of Regions leader Viktor Yanukovich was appointed prime
minister in August 2006; the president replaced Medvedko with Piskun again in April
2007, at a time when friction was mounting between Yushchenko and Yanukovich.

For the Gongadze investigation, the most important change in personnel was the
removal from the investigation in late 2006 of the investigators Roman Shubin, Yuri
Hryshchenko and Yuri Stoliarchuk, who had pushed the investigation forward most
effectively. It is worth quoting an interview with Valentyna Telychenko, lawyer for
Myroslava Gongadze, who has had continuous contact with the PGO during the
investigation of the case.

Question. You say that the PGO recently made another change in the
investigative team. Wasnt that motivated by a desire to bring a fresh view,
since the case has already been under investigation for several years?

Telychenko. I have the impression that the investigative group is changed only
when it gets rather too close to certain people, so that the new investigators can
start checking versions that their predecessors have long since discounted. With
only one difference: previously, the investigators were closing in on those who
carried out the crime, but this time they were getting closer to the organisers and
instigators. I cannot get it out of my head that the new authorities [i.e. those who
came to power in the Orange Revolution] are doing this deliberately.

It is very hard to take seriously the assertion by deputy prosecutor general Renat
Kuzmin that the decision was taken so that someone with a fresh eye, new
ideas and a new approach can take the case, and swiftly get to grips with it. If
the investigative group really needed strengthening, they could simply have
added to it someone with new ideas.

Question. And why have they changed the investigative group just now? Its a
long time since there was any indication of movement forward by the PGO.

Telychenko. In my opinion, the dismissal of the principal investigators is
evidence of the intention to obstruct any consistent information-gathering,
because even a very talented investigator would need time to acquaint himself
with a new case and in this one there are 100 volumes [of evidence] and to
get to know the large number of witnesses. And right now time is of the
essence. Its getting more difficult to get to the truth with every day that goes
by. [] With every passing day, witnesses memories will fade and important
material evidence will be lost. For example, the period during which official

285
Segodnya, Kiev, 17 May 2007 (BBC Monitoring).
103
archives have compulsorily to retain relevant documents, which could stand as
proof of particular facts, is running out.
286

Asked which group of investigators had worked most effectively, Telychenko said
that, judging by the documentation that had come to court, it was Shubin, Stoliarchuk
and Hryshchenko and those are just the ones who have several times been taken off
the case.

In view of Telychenkos remarks, this inquiry believes that the international
journalistic community and civil society should seek an explanation for the changes of
personnel that have negatively impacted on the investigation.

3.6.3 Failure of the search for Pukach

In our first report, we detailed how General Oleksiy Pukach, who had been arrested
for destroying documents relevant to the Gongadze case, had been released from
prison. In our second report, we detailed the way in which Pukach, who by 2005 had
become publicly acknowledged as the chief suspect in the murder, had evaded arrest,
and how in June 2005 information was leaked about measures being taken to detain
Pukach in Israel, thus allowing him to escape. We asked what was being done to
investigate (i) the leakage of information in June 2005 that had allowed him to escape,
and (ii) the background to his release, and the related dismissal of Piskun as
prosecutor, in 2003.
287

In September and October 2005, newspaper articles were published suggesting
variously that Andriy Kozhemyakin, the SBU officer who travelled to Israel to arrest
Pukach, and Viktor Shokin, then deputy prosecutor general, were partly responsible
for the failure of the arrest.
288
In our view the rehearsing of these mutual
recriminations in public results from (i) the failure of the PGO energetically to
investigate the actions that allowed Pukach to evade justice in both 2003 and 2005,
which clearly amount to aiding and abetting criminal activity, and (ii) the
unwillingness of Ukraines political leadership to compel the law enforcement
agencies to investigate the Gongadze case with the necessary vigour.

Since the failure of the law enforcement agencies to arrest Pukach in June 2005, little
information has come into the public domain about the search for him. According to
the then Prosecutor General Medvedko, in March 2006 the Israeli Prosecutor General
issued a warrant to arrest Pukach on suspicion of murdering Gongadze if he appeared
in Israel.
289

In June 2006, the SBU web site reported that the SBU had seized a foreign passport
issued in Pukachs name, when conducting searches related to illegal money
conversion operations, and contraband imports and sales of precious stones. A
journalistic investigation by Ukrayinska Pravda showed that the raid reported by the
SBU had been at a premises owned by Valentyn Brodovskyy, a minor figure in Yulia
Timoshenkos political bloc, who stated that he had been interviewed in the money-

286
Osen 2006. Ocherednye pokhorony dela Gongadze?, Ukrayinska Pravda, 1 December 2006.
287
See section 1.5.2 (January 2005) and section 2.2.2 (September 2005) of this document.
288
Segodnya, 19 and 25 September and 18 October 2005 (BBC Monitoring).
289
TV 5 Kanal, Kiev (in Ukrainian) 0910 GMT 8 September 2006 (BBC Monitoring).
104
laundering case only as a witness. Ukrayinska Pravda concluded in editorial comment
that the SBUs report could be a result of either (i) a mix of truth and lies, and an
SBU operation to discredit Timoshenko, or (ii) it could be true.
290

None of this apparently moved the search for Pukach forward. In September 2006, the
then Prosecutor General Medvedko said that information had been received that
Pukach may have tried to travel to India.
291

3.6.4 Closure of the investigation in to Kravchenkos death

The death of Yuri Kravchenko, former Minister of Internal Affairs, in March 2005,
deprived the investigation into the instigation and organisation of the Gongadze
murder of a key witness. A voice that is apparently Kravchenkos is heard on the
Melnichenko tapes discussing with former President Kuchma the need to harm
Gongadze. The attack on Gongadze was subsequently carried out by officers
answerable to Kravchenko. In March 2005, after Prosecutor General Piskun had
called Kravchenko for questioning in an extravagantly public manner, and on the day
that the questioning was due to take place, Kravchenkos body was found at his house
with two bullet wounds in the head.

Although his death was apparently suicide, there were suspicions about it, due to the
unusual nature of his injuries (two gunshot wounds to the head). Investigators
originally judged that Kravchenkos death was a suicide, but in 2006 the Pechersky
district court ruled that the case should be reopened. On 27 February 2007, the
prosecutors office once again concluded that Kravchenkos death was by suicide, and
once again closed the case.
292

Explaining the decision in a television interview, Andriy Ralsky, the investigator for
especially important cases at the PGO, stated that an expert commission made up of
senior health ministry specialists on facial surgery, toxicology and other branches of
medicine concluded that Kravchenko could have shot himself in the head twice.
Ralsky said that there have been numerous cases where people have shot themselves
in the head even four or five times. He said:

It should be taken into account that the first shot in the chin was not life
threatening: the bullet did not touch the brain or main arteries, damaging only
the teeth and soft tissues. The special expert examination investigated the
possibility of a repeat suicide attempt taking into account the nature of the head
wound and the generals individual physical characteristics.

Ralsky said that investigators were unable to confirm suggestions that Kravchenko
was under surveillance in the days before his death. He also dismissed media reports
that two of Kravchenkos fingers were broken, and that there were other injuries to
Kravchenkos body.
293

290
Ukrayinska Pravda, 16 and 20 June 2006.
291
TV 5 Kanal, Kiev 0910 GMT 8 September 2006 (BBC Monitoring).
292
TV 5 Kanal, Kiev, 27 February 2007 (BBC Monitoring).
293
Fakty i Kommentarii, Kiev, 6 March 2007 (BBC Monitoring).
105
These conclusions have been disputed by Mykola Polishchuk, a former health
minister and Ukraines foremost expert in firearms injuries. In an interview with
Zerkalo Nedeli newspaper he stated:

Polishchuk. Going by the nature of the injuries described in the documents, it is
quite clear that this was a violent death and the injuries could not have been
inflicted by the persons own hand. The possibility that this could have been
suicide has to be ruled out. [] The first firearms wound was at close range
from a weapon pressed against the body. The direction of the wound is
uncharacteristic of a wound inflicted by the person himself, because it travels
from bottom to top and from inside to outside. It is extremely difficult to believe
that a person would be capable of injuring himself in this way: it would be too
awkward. As a result of this firearms wound he sustained several fractures of
the lower jaw, seven teeth were broken (traumatic amputation), a fracture of the
upper jaw and nasal cartilages and damage to the tongue. Thus, he had to lose
consciousness as a result of such a trauma.

Question. Do you admit there is a hypothetical possibility, albeit one in a
thousand, that with such an injury a person could not lose consciousness?

Polishchuk. I don't think that is possible, however strong-willed he might be.
After such an injury he could only have grown weak and feeble and he would
have to have let a pistol fall from his hands. Nobody could have held a weapon
in his hands after such an injury. He was sitting not in an armchair, in which he
could have propped himself up on his elbows, but on a high chair. With his
height (over 190 cm) and weight, it is also ruled out that after such a shot he
would not have fallen from the chair. Unfortunately, the question of whether he
could have lost consciousness was not put to the experts.

The second injury to the temple was the fatal one. It was delivered at close
range, but it left no contact imprint. That would have been characteristic of a
suicide, and especially bearing in mind the previous injury, if he had shot
himself he would have had to press the barrel against his temple.
294

Kravchenkos successor as Minister of Internal Affairs, Yuri Lutsenko, has publicly
questioned whether Kravchenko committed suicide, stating that the investigation
should have carried out more thorough tests.
295

The Ukrainian Criminal Code includes an article on driving a person to suicide. Given
the confident assertion of former Prosecutor General Medvedko that Kravchenko had
committed suicide, we asked deputy prosecutor general Holomsha whether any case
would be opened under this paragraph. He said that prosecutors are studying that
issue.
296

3.6.5 The lack of accountability for previous failures

294
Zerkalo Nedeli, Kiev, 29 July 2006.
295
One Plus One TV, Kiev (in Ukrainian) 1630 GMT 20 July 2006 (BBC Monitoring).
296
Interview with Mykola Holomsha, Kiev, 3 July 2007.
106
We have raised in our second reports our concern that, even after the Orange
Revolution, no measures had been taken to investigate the broad collusion within the
Ukrainian establishment [in 2000-04] to obstruct and divert the investigation, and the
extent to which such collusion had been the cause of the catalogue of elementary
failures, and breaches of procedure and law, in the investigation into the Gongadze
case by the PGO.
297
We argued that an investigation of these issues was relevant to
the investigation of the murder itself. In the two years since that report was drafted,
there has been no indication whatever that any progress has been made along these
lines.

In November 2006, Vasily Silchenko, deputy head of parliamentary commission on
the Gongadze case, noted that he was very surprised by the declaration to the
commission in late 2006 by former deputy prosecutor general Shokin that everything
was done correctly on the Gongadze case, but we started again from the beginning.
Silchenko wrote:

How is that? Did the previous investigators do nothing? If so, they must answer
for that! Should they not be punished? Shokin also asserted, that the
Melnichenko tapes are not essential for the Gongadze case, and that the
Prosecutor General will get to the truth even without the tapes. In which case,
the question arises: what is holding up the completion of the case?
298

We remain of the view that a proper accounting of previous failures is an essential
part of the successful investigation of the murder.

3.6.6 Assessment of the PGO investigation by the parliamentary commission

In December 2006, Vladimir Moisyk reported to parliament on behalf of the
parliamentary commission on the Gongadze case, and summed up the commissions
concerns about the progress of the investigation. He made the following points, to
which we draw attention:

During this period [since Gongadzes murder], there have been five changes of
Prosecutor General in Ukraine, and of course all of them were to some degree
involved in the investigation. There were also a number of changes in the
investigation group, and the officers in charge of it, which in the commissions
view served no purpose. You can imagine a situation where there are more than
150 volumes of documents for the case, and just to familiarise oneself with
them is physically a major problem.

[] In the Prosecutor Generals opinion, one of the reasons that the
investigation has gone so slowly is the behaviour of Nikolai Melnichenko. The
prosecutors believe that he does not want to cooperate with them, give evidence
or hand over the original recordings that relate to Gongadzes murder.

297
See section 2.5 (September 2005) of this document.
298
Ukrayinska Pravda, 9 November 2006.
107
[] The slow pace of the investigation also made possible the release from
custody of General Pukach, who could have given evidence both about the
actual murder and about those who ordered it. The need to question responsible
officials then, when there was a possibility to do so, was ignored. Yuri
Kravchenko died, Ihor Honcharov died, Eduard Fere is critically ill and Pukach
is being sought.
299

Moisyk concluded that the prerequisites for the case to move forward are for the trial
of those accused of involvement in the murder to be completed; for a pre-trial
investigation to be completed of responsible officials whose actions or inaction
slowed down the investigation; for it to be proved to 100% certainty that the body
recovered at Tarashcha is Gongadzes;
300
and for Melnichenko to hand over the
recordings, and for these to be checked in accordance with Ukrainian law.

While this inquiry differs from the parliamentary commission on the issue of the
Tarashcha corpse, we concur with its other conclusions.

Finally we draw attention to the opinion of Vasily Silchenko, deputy chairman of the
parliamentary commission, who felt able to reinforce Moisyks conclusions more
forcefully outside the formalities of parliament, in an article that called for a change to
the law on the protection of witnesses:

The strange and unexpected death of the nurse from the Tarashcha morgue, the
early death of Dagayev, the coma that has struck Fere, the suicide of
Kravchenko And more: the death in a custody cell of Goncharhov, the
grenade attack on Nesterov, a member of the werewolves gang, who was
being guarded by the militia [], the disappearance of Pukach even after he
was arrested, the small calibre bullet in the skull of Irina Radzievskaya [an
important witness in the case of the death of Kravchenko]. And these were
all important witnesses, who had things to say about the Gongadze case! And
they all in one way or another were in the field of vision of the law enforcement
agencies or special forces. How many more coincidental deaths must there be
in this chain, until it becomes impossible to refute the obvious logic?
301

3.7 Obstruction of the investigation at the political level, and conclusions

3.7.1 Political support for officials responsible for failures of the investigation

We have catalogued in this and earlier reports the negligence and deliberate
obstruction of the investigation of Gongadzes death, in particular by the PGO under
Prosecutor Generals Potebenko and Vasylyev, but also by officials of the MIA and a
range of other state institutions. We have set out above (in section 3.6.5), the failure
of the PGO and other authorities to incorporate the issue of past lapses as a crucial
element of the investigation itself.

299
Stenogramme of the session of the Verkhovna Rada, 20 December 2006.
300
Here we consider the parliamentary commission to be in error (see section 3.5.4 above).
301
Ukrayinska Pravda, 9 November 2006.
108
At political level, too, despite the regular statements by President Yushchenko and
other senior state officials about the importance of the Gongadze case and, for
example, the public promise by Petr Poroshenko when secretary of the National
Security Council that there are specific people who will answer for this!
302
there
has been no attempt to investigate instances of negligence and deliberate obstruction.

This year, President Yushchenko took the political obstruction of the Gongadze
murder investigation to its logical conclusion, by awarding a high state honour to one
of those who carries the most personal responsibility for the failure of the
investigation. On 17 February 2007, Yushchenko signed a decree awarding the Order
of Prince Yaroslav the Wise to Mykhaylo Potebenko, Prosecutor General from 1998
to 2002 and currently adviser to the PGO. It is to this award that the title of this report
refers.

As explained in our previous reports, it was Potebenko who failed to respond to
Georgy Gongadzes letter of 11 July 2000, appealing for protection from those who
were following him. In this respect, Potebenko by his negligence paved the way for
Gongadze to be kidnapped and killed a failure that the European Court in November
2005 adjudged to be a breach of human rights.

After Gongadze went missing, the PGO under Potebenko continued to pursue avenues
of investigation that were false; and it issued false and misleading statements about
the case apparently designed to deflect attention from the relevance to it of the
Melnichenko tapes. Our first report concluded that the PGO under Potebenko had
perpetrated a deliberate obstruction of the investigation.
303
In the light of
subsequent events it appears that it would have been more appropriate to launch a
criminal investigation into the sabotage of the inquiry instead of which Potebenko
was awarded a medal.

In March 2007, a group of ten NGOs and journalists trades unions, headed by the
International Federation of Journalists, protested to Yushchenko about the award to
Potebenko, stating that: the fact of such an award, together with failure to carry out a
proper investigation as to the attempt to manipulate the case of Gongadze, is an
outrage to those who are working to consolidate democracy and a law-based state in
Ukraine.
304
They received no reply.

Other officials who played key roles in the failure of the investigation may also yet
receive state awards. For example Judge Maria Prindiuk, who in April 2004 had
closed the criminal case against General Pukach for destroying documents related to
the investigation of the Gongadze case and thereby made it easier for General
Pukach to evade justice was in July 2007 proposed for a state honour, the title of
Lawyer of Honour of Ukraine, by the collegium of the Kiev Appeal Court. Of

302
Ukrayinska Pravda, 29 June 2005.
303
See sections 1.3.1 and 1.3.2 (b) (January 2005) of this document.
304
Press release at <http://www.ifex.org/en/content/view/full/82034/> (accessed 23 July 2007). The
protest was signed by the International Federation of Journalists, the Institute of Mass Information
(Kyiv), the Kharkiv Human Right Group, the Independent Media Trade Union of Ukraine,
Internews-Ukraine, the Media Law Institute, the Center of Social Media, the Laboratory of
Legislative Initiatives, the National Union of Journalists of the United Kingdom and Ireland and the
Gongadze Foundation.
109
course the legislative and executive branches of government had no role in this
decision. Nevertheless, in our opinion it would be more fitting if an investigation was
undertaken that would compel Judge Prindiuk to explain her decision on Pukach.
305

In our first report, we catalogued the PGOs failure, under successive Prosecutor
Generals, to conduct an inquiry into the Gongadze case that met even basic standards.
In our second report, published shortly after the Orange Revolution, we listed
examples of the failure of the PGOs work, investigation of which might itself shed
light on the collusion of state officials in the intimidation of opponents under the
Kuchma regime.
306

Under Yushchenko, not only have these issues not been pursued despite the
readiness to do so declared by investigator Shubin and others in October 2005 but
Potebenko, the state official most directly culpable in sabotaging the investigation of
Gongadzes murder, has been awarded a state honour.

3.7.2 Ukraines reaction to the European Court judgement in the Gongadze case

Further evidence that the Ukrainian political authorities are not only failing to push
the Gongadze investigation forward, but are effectively obstructing it, comes from the
attitude of the Cabinet of Ministers and the ministry of justice to a verdict passed
against Ukraine in the Gongadze case on 8 November 2005 by the European Court of
Human Rights.

The court unanimously established that Article 2 of the European Convention on
Human Rights was violated in the Gongadze case, as the Ukrainian authorities were
unable to protect the life of Georgy Gongadze, and failed to carry out an investigation
into his death. The court expressed serious doubts about the authorities
commitment to investigating the case thoroughly, and ruled that the authorities had
been more preoccupied with proving the lack of involvement of high-level state
officials than by discovering the truth about Gongadzes disappearance and death.
The jury also said that Article 3 of the Convention (forbidding inhumane treatment)
and Article 13 (the right for efficient legal protection) were also violated. It ordered
Ukraine to pay 100,000 Euros in compensation to Myroslava Gongadze.
307

Prior to this judgement, in the summer of 2005, the Ukrainian Cabinet of Ministers
had offered Myroslava Gongadze an out-of-court settlement of the case being heard in
the European Court, and said it was willing voluntarily to pay her 100,000 Euros in
compensation for financial and moral damages, and all expenses incurred. However,
with such an out-of-court settlement in place, Myroslava Gongadze would have lost
the right to complain against Ukraine. The only possible purpose of this offer which

305
306
See sections 1.3, 1.6.1, and 1.8 (January 2005) and section 2.5 (September 2005) of this
document.
307
European Court of Human Rights, Second Section: Case of Gongadze v. Ukraine (application
no. 34056/02): Judgment (Strasbourg, 8 November 2005), especially pp. 23 and 25. Available on
the European Court of Human Rights web site,
<http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF0
1C1166DEA398649&key=11345&sessionId=1474411&skin=hudoc-en&attachment=true>.
110
was turned down by Myroslava Gongadze was to try to buy her silence over the
breaches of human rights implicit in the case, to avoid Ukraine being embarrassed by
a negative judgement.
308

Following this judgement in the European Court, the Committee of Ministers of the
Council of Europe stated that it would continue to ensure [] that Ukraine adopts all
necessary measures to comply with the judgements of the European Court of Human
Rights, that it was supervising changes in Ukraine necessary to prevent new
violations of the European Convention on Human Rights, and that it counts on the
full co-operation of the Ukrainian authorities in this respect.
309
But in October 2006,
the justice ministry wrote to Myroslava Gongadze, communicating a decision
confirming the payment of 100,000 Euros in compensation, but also saying that the
execution of all the tasks presented to the Ukrainian government as a result of the
European Court ruling had been closed.
310
In other words, there was no response to
the European Courts criticism of the authorities, or to the proposals for change made
by the Council of Europe.

3.7.3 Conclusions

The PGOs investigation of the Gongadze murder over the last seven years falls
approximately into three phases.

In the first phase (2000-04, up until the Orange Revolution), the PGO proceeded in a
grossly negligent manner, starting with the catalogue of deliberately false and
misleading public statements, continuing with successive prosecutors refusal even to
consider the Melnichenko tapes and culminating with the freeing of General Pukach
from arrest.

In the second phase (in the months after the Orange Revolution, from December 2004
to the autumn of 2005) the political changes in Ukraine gave an impetus to the
investigation. While the intention to deal with the instigators and organisers did not
often go beyond public declarations, and the death of general Kravchenko and other
events set back that aim, there was one significant breakthrough: the three MIA
officers who had allegedly participated in the attack on Gongadze were arrested and
put on trial.

In the third phase of the investigation, from the autumn of 2005, there has been one
significant step forward the Podolsky case was brought to court, and a connection
established between it and the Gongadze case but in other respects, the investigation
of the instigators and organisers of the crime has foundered, changes in personnel at
the PGO have hindered the investigation, and crucial time has been lost. Finally, in
this third phase, the position of Ukraines political establishment has changed: while
the statements about the investigation have been supportive, as they were in the

308
Interfax-Ukraine news agency, Kiev, 1521 GMT 8 November 2005 (BBC Monitoring).
309
Parliamentary Assembly of the Council of Europe, doc. 10785, 16 January 2006, Honouring of
obligations and commitments by Ukraine: reply from the Committee of Ministers. Available on the
PACE web site.
310
Postanova no. 70/13 pro zakinchennia vikonavchogo provadzhennia, issued by the department
for executing state orders of the ministry of justice, 24 October 2006.
111
second stage, in practice it has hardened its stance against the investigation. Thus the
award to Potebenko and the refusal to take up the points made by the European court.

Consequently, during the last two years, many of the Ukrainian politicians, lawyers
and journalists who have monitored the Gongadze inquiry most carefully from the
start believe that the principal obstacle to the case being solved is political. The
emphasis has been on the presidents failure to act more decisively.

When Vladimir Moisyk reported to parliament on behalf of the parliamentary
commission on the Gongadze case in December last year, the parliamentary deputy
Nikolai Onishchuk asked Moisyk:

What do you see as the basic I emphasise, the basic reason that the
investigation of this criminal case moves forward so complacently, and has not
been completed?

Moisyk: All five Prosecutor Generals that were involved in investigating this
case referred to the lack of political will for it to be completed. But if we talk
about political will, we must talk about those who express that will. And so the
answer is clear to you, I think.
311

Valentyna Telychenko, Myroslava Gongadzes lawyer, asked whether she believed
that those responsible for Georgys death would ever be punished, answered:

The Gongadze case is not just a case of three policemen who abused their
official powers, who killed a person who was previously unknown to them. The
murder of the founder of Ukrayinska Pravda was political: its a long time since
anyone had doubts on that score. And thats the reason the case is so hard to
investigate, thats why is was important for parliament to monitor the
investigation, thats why for the investigation to be effective, the political will
of the senior leadership of the state is essential including the holder of the
highest office, the president of Ukraine.

You can change as many Prosecutor Generals as you like, but the crime against
Gongadze will not be solved until the president takes care to ensure that the
investigation is undertaken by experienced professionals, and that politicians
can neither block its progress nor influence the courts. Unfortunately, the case
will not be pursued to the end if the president maintains his current passive
stance.

Given the failure of the presidency and other political institutions to support the type
of investigation to which Telychenko refers, and given the political support given to
those such as Potebenko who obstructed the investigation, it is logical to conclude that
while strong verbal support is being given to solving the case, in practice it is being
obstructed at the political level.

311
Stenogramme of the session of the Verkhovna Rada, 20 December 2006.
112
3.8 Recommendations

This inquiry calls on the Prosecutor General:

(i) To make public without exceeding the limits on publicity required by any
criminal investigation the priorities being adopted in the investigation of the
instigators and organisers of the murder of Gongadze; for those priorities to deal
with the murder in the context of the system of intimidation developed in the
MIA;

(ii) To open criminal cases against those who obstructed the investigation of the
Gongadze case at earlier stages;

(iii) To open criminal cases against those who destroyed documents related to
the Gongadze case, and to take measures to preserve relevant documents whose
period of compulsory retention is coming to an end;

(iv) To clarify publicly what measures are being taken to bring Major
Melnichenko to court as a witness, and to bring to court the original recordings
and apparatus that made them; and if necessary to open a criminal case to
achieve this end;

(v) To clarify publicly, with a view to answering concerns expressed in
parliament and in civil society, his policy on the staffing of the Gongadze
investigation.

We call on the president and government of Ukraine:

(i) To urge the Prosecutor General to pursue more vigorously the investigation
into the instigators and organisers of the murder, and give him the guarantees
necessary to do so;

(ii) To urge the Prosecutor General to pursue more vigorously the investigation
into all those, up to ministerial level, who obstructed the investigation of the
case, urge him to open the relevant criminal cases, and give him the guarantees
necessary to do so;

(iii) To direct the Minister of Internal Affairs to take measures to encourage
employees to divulge instances of criminal activity and abuse of power, that are
relevant to the Gongadze and Podolsky cases and the system of intimidation of
which they were part;

(iv) To consider urgently the issue of protection of witnesses raised by members
of the parliamentary commission on the Gongadze case;

(v) To strip former Prosecutor General Mykhaylo Potebenko of the state honour
awarded to him, and to ask the Prosecutor General to investigate his actions
with respect to the Gongadze case, with a view to opening a criminal case;

113
(vi) To ask the Prosecutor General to investigate the actions of former
Prosecutor General Gennady Vasylyev with respect to the Gongadze case, with
a view to opening a criminal case.

We recommend to the Council of Europe:

(i) To express its concern to the government of Ukraine over the obstructions
faced by the investigation both within the Prosecutor Generals Office and at
political level;

(ii) To continue to monitor the investigation.

We recommend to journalists and civil society, both inside and outside Ukraine:

(i) To continue to report on and monitor the investigation;

(ii) To put pressure on the Ukrainian government to stop obstructing the
investigation.

114

4 AFTER THE ARREST OF GENERAL PUKACH,
THE INSTIGATORS ARE STILL UNTOUCHED
(Report 4, September 2009)

4.1 Introduction

This report continues the long-term monitoring of the investigation into the killing of
the Ukrainian journalist Gyorgy Gongadze. The monitoring is undertaken with the
support of the International Federation of Journalists, the National Union of
Journalists of the UK and Ireland, the Gongadze Foundation and the Institute of Mass
Information to record the failure of legal and judicial processes in the case, and to
challenge the impunity of those who ordered the killing. This report is published in
the light of the arrest on 21 July this year of Aleksei Pukach, the main suspect in the
murder. It is an addendum to our three previous reports
312
and should be read in
conjunction with them.

The ninth anniversary of Gyorgy Gongadzes death is approaching. He was kidnapped
on 16 September 2000 by a group of MIA officers, and soon afterwards his headless
body was found buried in woods near Kyiv. In November 2000, Major Mykola
Melnichenko, a former bodyguard of former President Leonid Kuchma, made public
tape recordings, apparently made in the presidents office, of conversations about
harming Gongadze. The participants were senior politicians, including Kuchma,
current Ukrainian parliamentary speaker Volodymyr Lytvyn, and the late Yuri
Kravchenko, then Minister of Internal Affairs.

There followed several years during which the investigation of the murder was
deliberately obstructed both by successive Prosecutor Generals and at the political
level. Matters were made still worse by failures and mistakes by investigating
officers. For example, Pukach was identified as a key suspect, but released from
custody by a court. The prosecutor who had presided over his arrest was sacked and
the judge who wound up the criminal case against him, allowing him to be released,
was promoted. In 2005, when, according to statements by the authorities, SBU
officers were preparing to arrest Pukach in Israel, he was tipped off by unknown
sources inside the security services and vanished. No investigation was conducted into
the tip-off.
313

Meanwhile, individuals who seemed likely to have acted as links in the chain between
Pukach and senior political figures who ordered the murder disappeared from the
scene: in 2005 former Minister of Internal Affairs Yuri Kravchenko died in suspicious
circumstances, and subsequently so did Eduard Fere and Yuri Dagayev, senior MIA
officers who had come to investigators attention. In 2007, three junior officers who
had accompanied Pukach in kidnapping Gongadze were convicted and sentenced for
their part in the crime.

312
The three reports, published in January 2005, September 2005 and September 2007, form parts 1, 2
and 3 of the present document. The way that our Inquiry was established and its terms of reference are
detailed in sections 1.1 and 1.2 (January 2005) and 3.1 (September 2007) of the present document.
313
See sections 2.2.2 (September 2005) and 3.6.3 (September 2007) of the present document.
115
On 21 July this year, Pukach was arrested in the village of Molochky in Zhytomyr
Region, in an operation conducted jointly by the Prosecutors General Office (PGO)
and officers of the Ukrainian security service (SBU). The PGO stated subsequently
that, during questioning, Pukach told investigating officers where Gongadzes head
was buried. The site was searched, and in August, a skull that is almost certainly
Gongadzes was found.

Gongadzes family and fellow journalists have expressed concerns which we share
that Pukachs arrest will be followed not by a more thorough investigation of the
instigators of Gongadzes murder, but by Pukachs case being sent rapidly to court
and the investigation of the instigators being further obstructed and delayed.

There are also widespread fears in Ukraine that, with a presidential election
approaching in January 2010 and politicians anxious to bolster their reputations, the
arrest and possible trial of Pukach will be heralded as a successful end to the case.
Such an outcome would be a blow to justice and to the freedom of speech, and a
signal to those with power and influence that they can order physical attacks on
journalists with impunity.

This report surveys developments since Pukachs arrest, and makes recommendations
aimed at intensifying the investigation into the instigators of the killing.

4.2 Surveillance and arrest of Pukach

Fears that Pukachs arrest may have been timed according to some political agenda
were raised by officials statements that he had been under surveillance for a long
period. Nikolai Golomsha, deputy prosecutor general, said in a television interview on
28 July that we have for two years in a row, together with the SBU and operational
officers of the Ministry of Internal Affairs, followed in Aleksei Pukachs tracks. We
knew where he was.
314

Why, then, was Pukach arrested in July 2009, and not earlier? Was he previously
under the protection of elements in the law enforcement agencies? Such a possibility
was raised by Aleksandr Medvedko, Prosecutor General, on 24 July. He told a press
conference that prosecutors would check information they had received that Pukach,
while in hiding, had had contact with a senior official in the Ministry of Internal
Affairs (MIA). He said that prosecutors had so far not confirmed this information.
315

While Medvedkos announcement that such contacts will be checked is welcome, it
underlines the glaring lack of such checks in the past. The PGOs failure to conduct
an investigation of Pukachs possible links with his former colleagues, and possible
connections between the Gongadze case and other criminal networks within the MIA,
has been raised many times in the Ukrainian media, and in our previous reports.
316

314
5-y Kanal TV, 28 July 2009, cited by Ukrayinska Pravda
315
UNIAN press agency 24 July 2009, cited by Ukrayinska Pravda
316
See section 3.6.1 (September 2007) of this document and elsewhere in that years report.
116
4.3 The questioning of Pukach

We are concerned about two issues arising from the questioning of Pukach following
his arrest. First, and most seriously, is the fact that he was questioned without a
lawyer being present. Valentyna Telychenko, legal representative of Myroslava
Gongadze (Gongadzes widow and next of kin), has warned that this could invalidate
some of Pukachs testimony in a future court case.
317

Secondly, after Pukachs arrest, law enforcement agencies made a flood of
contradictory statements about information Pukach had supposedly provided about
the instigators of Gongadzes murder. This heightened the impression that the PGO
and political leaders were more interested in the favourable public impression created
by the murderers arrest than by the urgency of discovering on whose orders he acted.

On 22 July, Vasily Gritsak, deputy head of the SBU, said that Pukach had named
those who ordered the killing. This was contradicted on 23 July by Sergei Osyka,
Pukachs lawyer, who said that Pukach had not given any such information. On 24
July, Kommersant newspaper, citing sources in the SBU, reported that Pukach had
provided investigators with three names. On 28 July, Segodnya newspaper, citing
sources close to the investigation, claimed Pukach had provided objective
information, but given no names.
318

On 7 September, Prosecutor General Medvedko stated at a press conference that
Pukach was in good health and actively cooperating with investigators. But when
asked about the progress of inquiries into the instigators of the murder, Medvedko
said: [We have] no instigators, not yet. When the time comes, well tell you.
319
Six
weeks after Pukachs arrest, therefore, the most important issues remain unclear. Has
he answered questions about the instigators of the crime? Have prosecutors acted to
verify such information? Or are Pukach and the prosecutors actively cooperating to
protect those instigators?

Ukrainian law allows for pre-trial questioning to continue for up to 18 months.
Valentina Telychenko, Myroslava Gongadzes lawyer, has urged that all the time
necessary be used, to maximum effect, to question Pukach on issues that may shed
light on the instigators of the murder, and to check information received.

Above all, we warn that any attempt to bring Pukach to trial before substantial
progress is made towards finding the instigators of the crime will further undermine
the search for those instigators.

4.4 Recovery of a skull

On 28 July, the PGO confirmed at a press conference that fragments of a human skull,
which investigators believed to be Gongadzes, had been found in Belotserkovsky
district in Kyiv Region, near Sukholisy. Investigators had searched a site the location

317
Ukrayinska Pravda, 23 July and 24 July 2009.
318
Ukrayinska Pravda, 22 July and 23 July 2009; Kommersant-Ukrainy, 24 July; Segodnya, 28 July
2009, cited by Ukrayinska Pravda
319
UNIAN news agency, 7 September 2009.
117
of which had been identified by Pukach.
320
In the weeks that followed, Ukrainian
forensic experts confirmed that the skull belonged to Gyorgy Gongadze.
321

Investigators have now decided, with the agreement of Myroslava Gongadze, to
arrange for further confirmation of the identity of the skull, by foreign experts using
DNA techniques, working together with their Ukrainian colleagues.

We urge that this additional confirmation is undertaken as swiftly as possible.

4.5 The investigation of criminal activities within the MIA

We reiterate our call, made in previous reports, for the investigation of the instigators
of Gongadzes murder to take into account the possible connection between the
Gongadze case and other cases of punishment squads and other illegal gangs
organised within the MIA. These cases include: the case of Oleksiy Podolsky, a
journalist abducted in June 2000 (three months before Gongadzes murder) by a group
of MIA officers apparently organised by Pukach, some of whom have been convicted
and imprisoned; and the case of the werewolves, a group of former MIA officer
accused of a series of kidnappings and murders, one of whom, Ihor Honcharov, died
in custody in 2003.
322

A dramatic reminder of the power of these gangs was provided this month. During
court hearings on the werewolves case, Yuri Nesterov, the only member of the gang
who has turned states witness, and on whose testimony the prosecution case heavily
relies, was arrested in court and detained in a prison where other members of the gang
are also being held. Nesterov indicated in a message smuggled out to a journalist that
he considers his life to be in serious danger. Nesterovs arrest, which was sanctioned
by the presiding judge, is a shocking breach of the promise made to him by law
enforcement officers under Ukrainian legislation which provides, as does criminal
law in many countries, that he and his family would be afforded protection in return
for him cooperating with the prosecution.
323
Nesterovs arrest raises the serious
possibility that the werewolves case could collapse. Such a setback could only harm
the progress of the investigation into the instigators of Gongadzes murder.

4.6 Conduct of the investigation

The unsatisfactory conduct of the PGOs investigation, and in particular its stubborn
refusal to pursue avenues that could identify the instigators of the murder, has been
noted in our previous reports. The questioning of Pukach without a lawyer, and the
confusion in the PGOs statements about Pukachs testimony, has added to our
concerns. This issue has now been raised in correspondence between Valentina
Telychenko, Myroslava Gongadzes lawyer, and the PGO.

On 1 July, i.e. three weeks before Pukachs arrest, Prosecutor General Medvedko
transferred overall charge of the investigation from his deputy Nikolai Golomsha to
another deputy prosecutor general, Vitaly Shchetkin. Shchetkin was a member of the
team that worked on the case in 2005-06, during the period when the most progress

320
UNIAN news agency, 28 July 2009.
321
UNIAN news agency, cited by Ukrayinska Pravda, 27 August 2009.
322
See section 1.5.3 (January 2005) and section 3.3 (September 2007) of this document.
323
Zerkalo Nedeli, 5 September 2009.
118
was made on it.
324
However, after Pukachs arrest, Golomsha presented information
on the case to the public and appeared to be back in charge. As a result, Telychenko
wrote to the prosecutor asking that the decision to replace Golomsha with Shchetkin
be upheld. Telychenko also called for Aleksandr Kharchenko, who had led the
investigation since 2006, be removed. Telychenko expressed concern that the
investigators lack of professionalism threatens to undermine the work of the
prosecuting attorneys, and is making [the prosecuting attorneys] work impossible,
due to political pressures and political speculation.
325

The President of Ukraine, Viktor Yushchenko, has taken the opposite view, by last
month awarding state honours to Golomsha and Kharchenko and by implication
expressing approval of their investigation, which has so demonstrably failed to take
the elementary steps necessary to find the instigators of the crime. On 18 August
Golomsha was awarded the Order of Prince Yaroslav the Wise, and on 20 August
Kharchenko was given the status of state adviser on justice (3
rd
class).
326

In 2007, President Yushchenko similarly honoured former Prosecutor General
Mikhail Potebenko, who was responsible for sabotaging the investigation in the weeks
following Gongadzes murder in 2000. Yushchenko has ignored protests by the
Parliamentary Assembly of the Council of Europe, and ourselves, about that award
and has now again implicitly approved the actions of officers who have obstructed the
investigation.

4.7 Political commentary on the case

President Yushchenko responded to Pukachs arrest with an extraordinarily optimistic
statement, which heightened fears that Pukach would be rushed to court and the
investigation of the instigators curtailed. Yushchenko told a group of journalists that
we are now on the home strait. The arrest of General Pukach has helped a great deal.
After this, the investigation received answers to key questions. He added that
political pressure to stop the investigation had been exercised by people in high
places, and that those implicated by the inquiry who were no longer in power have
preserved colossal influence.
327

These are extraordinary, and contradictory, statements. If Yushchenko has more exact
information about the questioning of Pukach than the prosecutors have made public,
why does he not clear up the confusion on that issue? In which way has testimony
helped, since there have been no further arrests, nor answers to basic questions posed
by investigating officers, journalists and this inquiry two or three years ago? In which
sense is the investigation on the home strait? And if Yushchenko knows that people
in high places are obstructing the investigation, why does he not name them and
urge the PGO to open cases under which their activities can be investigated? The
answer has probably been given in practice, by Yushchenkos decision to honour
Golomsha and Kharchenko: he appears in reality to be satisfied with the arrest of
Pukach as a substitute for finding the instigators, and not as a step towards that aim.

324
See section 3.6.2 (September 2007) of this document.
325
Ukrayinska Pravda, 29 July 2009.
326
Web site of the President of Ukraine, 18 August and 20 August 2009.
327
Ukraina Molodaya, 28 August 2009.
119
It is also noteworthy that the parliamentary speaker, Volodymyr Lytvyn, expressed
the hope that, following Pukachs arrest, the investigation of the case would continue
in an objective and unbiased manner. In response, we repeat the questions that
Hungarian parliamentarian Matyas Eorsi raised in the Parliamentary Assembly of the
Council of Europe in 2005, and that we raised in our report in 2007: what are
Lytvyns comments on what appears to be a recording of a conversation about
harming Gongadze, in which he participated on 3 July 2000, along with former
President Kuchma, Leonid Derkach and the late former Minister of Internal Affairs
Yuri Kravchenko? Does Lytvyn dispute the version of the conversation published by
the International Press Institute and verified by experts as having been reproduced
without tampering? If not, does he have any other record of this conversation on 3
July 2000? Why has he not done more over the years to clarify these issues?
328
We
hope that even at this stage Lytvyn will respond to our letter of July 2007 on these
issues.

In addition, there has been a great deal of comment, by Prime Minister Yulia
Timoshenko and others, to the effect that the timing of Pukachs arrest in the run-up
to the presidential election on 17 January 2010 may not have been coincidental.
Various scenarios under which the arrest could work to the benefit of one or other
candidate have been aired.

For this reason we urge the PGO and other agencies to reopen, after the arrest of
Pukach, aspects of the investigation that will help to establish who the instigators of
the crime were.

4.8 Conclusions

The arrest of Pukach is of course a welcome step forward. But there is clearly a
danger that it will lead not to a furthering of the search for the instigators of the crime,
but to the avenues of investigation that lead to them being closed off.

In our Report no. 3 we highlighted steps that could be taken to further the
investigation of the instigators of the murder of Gongadze. Two years later, despite
Pukachs arrest, there has been little or no progress on these. Here we reiterate these
steps, in the light of Pukachs arrest.

We call on the PGO:

-- To plan ways of building on Pukachs arrest in investigating the instigators of
Gongadzes murder, and to provide as much information as possible publicly on these
plans;

-- To coordinate the sending of Pukach to court with the investigation into the
instigators of the murder; not to send a case against Pukach alone to court, so long as
opportunities exist to widen the case against the instigators; to use all the
opportunities afforded under Ukrainian law to conduct pre-trial questioning of Pukach
for up to 18 months and to check information received;

328
See section 3.5.3 (September 2007) of the present document.
120
-- To initiate criminal cases against those who obstructed the inquiry at earlier stages;

-- To make clear what measures are being taken to bring Major Melnichenko, whose
testimony on the veracity of the tapes made of former President Kuchma and others is
needed, to court to testify;

-- To clarify publicly his policy on staffing the Gongadze investigation.

We call on the president and government of Ukraine:

-- To call on the Prosecutor General to pursue more vigorously the instigators of the
murder, and give him the necessary support to do so;

-- To urge the Prosecutor General to investigate those, up to ministerial level, who
have at various times obstructed the investigation;

-- To direct the minister of internal affairs to encourage, and to provide protection for,
those who can give evidence on illegal activities within the ministry, including the
Gongadze and Podolsky cases and the system of intimidation of which they were part;

-- To revoke the state awards to prosecutors Potebenko, Golomsha and Kharchenko,
and to judge Prindiuk (who in 2004 closed the earlier criminal case against Pukach);
to ask the Prosecutor General to consider the efficacy of opening criminal
prosecutions against former prosecutors Potebenko and Vasylyev for their obstruction
of justice in the Gongadze case.

THE REPORTS AUTHORS

The first report was drafted by David Crouch (NUJ) and Simon Pirani (NUJ). The
research for the report, and assembly of the internet archive, was carried out by David
Crouch. Robert Shaw (IFJ), Alla Lazareva (IMI) and Myroslava Gongadze (Gongadze
Foundation) participated in the research and campaigning (see Appendix 1).

Reports 2, 3 and 4 were drafted by Simon Pirani.

Contact

Queries about the inquiry may be addressed to Ernest Sagaga,
IFJ, IPC-Residence Palace, Bloc C,
Rue de la Loi 155, B-1040 Brussels, Belgium.
ernest.sagaga@ifj.org.

121
ABBREVIATIONS AND INSTITUTIONS

Ukraine

Ministry of Internal Affairs MIA
Security Service SBU
Prosecutor Generals Office PGO
Verkhovna Rada (lit. Supreme Council) Parliament

International

Parliamentary Assembly of the Council of Europe PACE
Council of Europe CoE
European Court of Human Rights ECHR

OSCE, Organisation for Security and Cooperation in Europe

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