Charges against Kuchma: Is this about murder – or politics?

Ukraine has a reputation for unresolved mysteries. Years after the crimes, it's still not certain who poisoned Viktor Yushchenko, who orchestrated the 2004 election fraud that prompted the Orange Revolution, or -- perhaps most achingly -- who gave the order to kill investigative journalist Heorhiy Gongadze. 

The 31-year-old Gongadze was kidnapped and brutally slain in 2000. Since then, a popular rendition of the crime scenario has steadily emerged, starting with the ground-level hit men and traveling all the way up the political chain of command to the country's then-president, Leonid Kuchma. 

But apart from a handful of police officers convicted of carrying out the actual killing, no one has been tried in the case. So it was big news when prosecutors announced on March 24 -- more than a decade after the crime -- that they were charging Kuchma in connection with Gongadze's death. 

But to many observers, the move seemed less like due process and more like political game-playing -- a notion President Viktor Yanukovych tried to dismiss earlier this week. 

"This is all natural. There's a rumor that this process is turning political, but that's all it is -- a rumor, " Yanukovych said on March 28. "Certainly, this is unpleasant for Leonid Danylovych [Kuchma]; no one would envy him in this situation. But it's necessary to get this over with already."

Melnychenko Factor

It's uncertain, however, that the Kuchma charges will bring a definitive end to the Gongadze affair. The backbone of the prosecution's case rests on hundreds of hours of digital recordings made secretly by a member of Kuchma's security staff, Mykola Melnychenko. 

The Melnychenko tapes purport to capture Kuchma talking about Gongadze -- one of the former president's most dogged critics -- and ordering subordinates to "deal with him." Melnychenko went public with the recordings in late 2000; an American forensic company, Bek Tek, later concluded the tapes were authentic and that the voices included those of Kuchma. 

Kuchma has denied any involvement in Gongadze's death. And the former president has so far managed to avoid a bizarre procedural request to submit to a simultaneous interrogation with Melnychenko while both men are in the same room. Melnychenko accused the former president of playing for time.

"Leonid Kuchma is using every possibility to delay a face-to-face meeting [with me], so that he can personally meet Yanukovych and blackmail him, " Melnychenko said.

"Kuchma has some knowledge that he wants to use to blackmail Yanukovych in order to get him to stop the investigation, an investigation that includes face-to-face meetings. Because of this, Kuchma ignored the warning that investigators gave him on Monday [to attend the interrogation]." 

Kuchma did report for questioning today, albeit alone, and used the back entrance to the Prosecutor-General's Office to avoid journalists.

Further Fallout From Tapes

The Melnychenko tapes have stirred anxiety in many corners of Kyiv, where they have the potential to spawn a host of additional cases. Numerous officials, including current Prime Minister Mykola Azarov and parliament speaker Volodymyr Lytvyn, are allegedly implicated in the recordings, captured in conversations revealing a massive web of corruption and criminal activities. 

Prosecutors have indicated they are not pursuing charges against Lytvyn, who as speaker holds immunity that Kuchma doesn't. But many observers -- including Melnychenko himself -- believe Lytvyn, who once served as Kuchma's chief of staff, played a critical role in the killing. 

Political analyst Volodymyr Fesenko says prosecutors should exercise caution before introducing the tapes as evidence. "Lytvyn is the weakest link in this political and legal chain, " he says. "He knows a lot -- not only about politics a decade ago, but politics today. It would be dangerous to make the tapes the main evidence against Kuchma. And there's virtually no other evidence. Authorities here should proceed very, very carefully." 

But many legal experts -- including Kuchma's high-profile American defense attorney, Alan Dershowitz -- have challenged the veracity of the recordings to begin with. In a statement circulated by Kuchma's spokesperson, Dershowitz said it was "relatively easy to change words on a digital recording to create guilty-sounding statements." 

Doubts Over Evidence, Witnesses

Part of the uncertainty rests in the fact that Melnychenko has never offered a credible explanation for why he made the tapes or presented the recording devices he used to make them. Valentyna Telychenko, the lawyer for Gongadze's widow Myroslava, says she has doubts the recordings will ultimately be introduced as evidence.

"Whether the court will accept these recording as valid evidence is an open question, " Telychenko says. "They might say: 'The good prosecutors presented this invaluable evidence, but the bad court did not accept it. What else can we do?' Melnychenko still has not provided the equipment he used to make those recordings."

Telychenko and Myroslava Gongadze have also expressed disappointment that prosecutors have stopped short of charging Kuchma with murder. Instead, they have leveled the lesser charge of abuse of office in giving unlawful instructions to Interior Ministry officials, which subsequently led to Gongadze's killing. 

The 10-year statute of limitations on those charges has already passed. If the court were to overrule the statute and then find Kuchma guilty, he could theoretically spend up to 12 years in prison. Such a step would make Kuchma, who ruled newly independent Ukraine from 1994-2005, one of only a few post-Soviet leaders to answer for crimes in a part of the world where corruption and government impunity are considered commonplace. 

The decade-long history of the Gongadze case has left several significant bodies in its wake. In 2005, Yuriy Kravchenko, who served as interior minister at the time of the killing and was believed to have given the direct orders to kill Gongadze, died after sustaining two gunshot wounds to the head. The death was ruled a suicide. 

In 2009, Interior Ministry General Eduard Fere, who was believed to have served as the intermediary between Kravchenko and Oleksiy Pukach, the police general whose three officers carried out the killing, died in a hospital after allegedly spending the previous six years in a coma. (Pukach is currently in jail awaiting trial.) 

Yuriy Dagayev, a third Interior Ministry official with ties to the case, also died under suspicious circumstances. The deaths of Kravchenko, Fere, and Dagayev effectively eliminated the sole opportunity to back up Melnychenko's tapes with material witnesses who could corroborate each other's testimony.

Why Reopen The Case Now?

The sudden frisson in the long-dormant case has caused many to wonder: why now? A Ukrainian civil society group, the Democratic Initiatives Foundation, attempted to answer the question this week by presenting the results of a survey of 55 leading political scientists and lawyers. 

Many of the respondents suggested the timing of the charges was an attempt to refute accusations from the West that the government is selective in its use of justice. (The charges were leveled the same day that one of the country most prominent politicians, Yulia Tymoshenko, was in Brussels delivering a speech on selective prosecutions in Ukraine.) 

Others said returning to the sensational case was meant to distract ordinary Ukrainians from the country's growing economic problems. Still others suggested the Kuchma charges were a good way to intimidate his powerful son-in-law, billionaire Viktor Pinchuk, who controls several of Ukraine's most powerful television channels. 

Yanukovych, who in 2002 was appointed Kuchma's prime minister, may now be looking to sever his ties with his former patron -- and yanking a few media holdings out of hostile hands while he's at it. 

written by Daisy Sindelar, with reporting by Dmytro Shurkhalo and Dmytro Barkar in Kyiv