European Court rules against Ukraine in Gongadze case (11/13/05)

European Court rules against Ukraine in Gongadze case

by Andrew Nynka

PARSIPPANY, N.J. - In a case brought by the wife of slain Internet journalist Heorhii Gongadze, the European Court of Human Rights ruled against Ukraine on November 8, finding that the government did not protect her husband and failed to properly investigate his abduction and murder.

The court said Ukrainian authorities had failed to protect Mr. Gongadze prior to his murder in September 2000, and that there has been an "inadequate investigation into Mr. Gongadze's death."

The court awarded Myroslava Gongadze, the journalist's widow, 100,000 euros ($117,810 U.S.) and said she had been treated in an inhumane or degrading manner and that her right to have the murder case resolved had been violated.

Ms. Gongadze told The Ukrainian Weekly she did not ask the court for compensation, though the court awarded her both pecuniary and non-pecuniary damages.

Ms. Gongadze said she did not pursue the case with the aim of securing compensation. In fact, President Viktor Yushchenko's administration previously offered her a settlement of 100,000 euros in exchange for her withdrawing her claim, but Ms. Gongadze declined, saying she hoped a court ruling would set a precedent in protecting Ukrainian citizens.

"By filing this lawsuit, I wanted to urge Ukrainian authorities to fully investigate my husband's murder and punish organizers and perpetrators of this crime," Ms. Gongadze said, according to the Committee to Protect Journalists. She continues to maintain that Ukrainian authorities have deliberately dragged their feet on the investigation and have no interest in seeing it resolved.

"In truth, I seriously doubt that this investigation will be completed," Ms. Gongadze said, referring to the investigation by Ukrainian authorities into her husband's murder.

The European court, based in Strasbourg, France, has the authority to review the actions of domestic courts, issue findings and recommendations, and levy monetary sanctions. Ukraine, as a member of the Council of Europe, could face expulsion if it chooses not to comply with the court's ruling, though there is no formal way to force countries to comply with the court's decisions.

In the Gongadze case, the court looked at whether there had been violations of the European Convention of Human Rights; it did not delve into an investigation of the Gongadze murder.

The European Court of Human Rights "does not rule on an investigation of criminality; it is not a criminal court," Ms. Gongadze explained. "The Ukrainian investigation must now review the courts findings" and come to its own conclusion, she said.

The court's ruling has refocused attention on the Gongadze case, which has languished off and on for over five years. The presidential administrations of Leonid Kuchma and Mr. Yushchenko both pledged a full investigation into the Gongadze killing, though there has been no official announcement of who ordered and organized the journalist's murder.

"Mr. Yushchenko took on this responsibility independently and pledged before the Ukrainian people to complete this investigation," Ms. Gongadze said. "If he does not do this, the people will know he has not kept his promise."

Ms. Gongadze first appealed to the court on September 16, 2002, alleging violations under the European Convention on Human Rights. On March 22 the court accepted her application and opened the case of Gongadze v. Ukraine.

Ultimately, the court found two violations of Article 2 (right to life) of the European Convention on Human Rights, one violation of Article 3 (prohibition of inhuman or degrading treatment), and one violation of Article 13 (right to an effective remedy). The court's decision, which was given by a panel of seven judges, was unanimous.

The Ukrainian government was represented in the case by lawyers from the Justice Department, Ms. Gongadze said. She said there has been no reaction from the Justice Department. Ukraine has three months to appeal the case. If no appeal is filed by February 8, 2006, the court's ruling will stand.

The court found that "the attitude of the investigation authorities to [Ms. Gongadze] and her family clearly caused her serious suffering which amounted to degrading treatment."

The court said that, "for more than four years, no effective criminal investigation could be considered to have been conducted."

"Furthermore, the absence of any outcome concerning the main criminal proceedings also prevented [Ms. Gongadze] from receiving compensation, since in practice a civil claim for compensation would not be examined prior to a final determination of the facts in pending criminal proceedings," the court ruling said.

Then Procurator General of Ukraine Sviatoslav Piskun announced in March that the first phase of the criminal investigation into the Gongadze case was complete, saying authorities had uncovered four men who were directly involved in the murder.

On March 1 authorities arrested two former police colonels, Valerii Kostenko and Mykola Protasov, and charged them with premeditated murder. A third suspect, Yurii Nesterov, was placed under house arrest and police protection in Kyiv, while a fourth, Gen. Oleksii Pukach, fled to Israel and is wanted under an international search warrant issued by Ukrainian authorities. Mr. Pukach was the former chair of the Internal Affairs Ministry's criminal investigation department.

In her case before the European Court, Ms. Gongadze alleged that, while the Ukrainian government had confirmed the direct involvement of state agents in the murder of her husband, "the investigation seemed to limit the case to the prosecution of direct offenders, and not those who ordered and organized it."

The Internal Affairs Ministry said previously it questioned former President Kuchma, former Security Service of Ukraine Chief Leonid Derkach and Verkhovna Rada Chairman Volodymyr Lytvyn in connection with the case.

Among those suspected to have organized the murder was former Internal Affairs Minister Yurii Kravchenko, who committed suicide on the morning of March 4, the same day he was supposed to appear for questioning in the Gongadze case.

A series of audio recordings, dubbed the "Melnychenko tapes," seems to implicate Messrs. Kuchma, Derkach, Lytvyn and Kravchenko in planning the abduction of Gongadze.

An ad hoc Verkhovna Rada commission investigating the case accused the four men of plotting the Gongadze murder. The commission recommended that the procurator general open criminal cases against Messrs. Kuchma, Lytvyn and Derkach. The commission, which dissolved after its September 20 announcement, had no judicial authority and prosecutors were not bound to act upon its findings.

Meanwhile, President Yushchenko pledged to press Ukraine's newly appointed procurator general, Oleksander Medvedko, to step up probes of high-profile cases, Interfax Ukraine reported on November 3. According to the president's press service, Mr. Yushchenko was referring to the Gongadze case and vote rigging in last year's presidential election.

"It is intolerable that one year after the Orange Revolution, during which millions of people protested the total falsification [of the vote], the Procurator General's Office has not yet been conducting an active investigation into who organized those acts," President Yushchenko was quoted as saying.

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