Volume 10 Numbers 2/3

Spring/Summer 2001

Kuchmagate and the Demise of Ukraine's "Geopolitical Bluff"
Dominique Arel

The discovery of the decapitated body of journalist Heorhiy Gongadze and the recent appearance of tapes allegedly linking Ukrainian president Leonid Kuchma to incriminating activities have thrown Ukrainian politics into turmoil since November 2000. While the domestic political consequences of the scandal are hard to predict, the circumstantial evidence surrounding Gongadze's death and the cassette tapes, so consistent with the multiyear pattern of Ukraine's increasing democratic malpractice, has crystallized the notion among Western policymakers that Kuchma's Ukraine, all on its own, has pushed itself beyond the pale of democratic precedents. In the midst of the endless speculation about who is benefiting from the scandal, one is still left with the incontrovertible fact that Kuchma long ago decided that the preservation of his regime depends on the steady subversion of democratic procedures and institutions.

This conscious policy of democratic regression blatantly contradicts the mantralike invocation by Ukrainian officials that the country is pursuing the "strategic course" of "European integration." Ukrainian elites have internalized the notion, dominant among American strategic thinkers, that an independent Ukraine is the key to heading off the potentially destabilizing resurgence of Russian power in Eastern Europe. They have mistakenly concluded that their unique geopolitical position, like a "keystone in the arch," essentially exempts them from abiding by basic democratic and economic norms. This view finds no credence in European capitals. In a scathing report, published shortly before the Kuchmagate revelations, a Council of Europe committee wrote that "geopolitics will no longer be perceived as a reason for patience if Ukraine does not rapidly introduce a new style of politics and serious reforms." While democratic and human-rights violations outside of Europe are routinely disregarded by European powers in connection with foreign policy, Europeans are serious about policing these norms within the European club, a point that Soviet-trained Ukrainian apparatchiki do not appear to fathom.

The scandal
The Kuchmagate scandal erupted, in late November 2000, when Deputy Oleksandr Moroz told a stunned parliament that he had in his possession tapes of conversations recorded in the president's office linking Kuchma to the disappearance of maverick journalist Gongadze. In an excerpt made public, Kuchma, in the foulest language, is heard telling Interior Minister Yuriy Kravchenko to "drive" Gongadze into Georgia, "throw him there" and have the "Chechens" kidnap him. Kravchenko is heard boasting about one of his units-the so-called "eagles," devoid of any moral principles-who will do "anything" requested from them. The disclosure of these tapes came a few weeks after a body was identified by a local morgue official as that of Gongadze, who had disappeared two months earlier. After six months and many contradictory statements, the Procurator's Office, with the assistance of the FBI, finally identified the corpse as Gongadze's.

The Gongadze conversations were allegedly taped by a 34-year-old member of the Ukrainian State Security Service attached to Kuchma, Major Mykola Melnychenko. The young major and his family went into hiding, somewhere in Europe, days before the Moroz bombshell and received political asylum in the United States six months later, reportedly after an attempt by Ukrainian agents to break into their refuge. In a deposition to three Ukrainian MPs, videotaped from an undisclosed location in Europe and shown to parliament, Melnychenko claimed that he was prompted to install a recording device in the president's office after witnessing Kuchma giving "a criminal order," which, allegedly, was duly implemented. Several hundreds of hours of conversations have apparently been recorded. As of June 2001, only a half dozen of these conversations were made public, in the form of transcripts on the Internet, but several people, including Ukrainian parliamentarians and officials from Radio Liberty and the New York-based Freedom House, have been able to listen to a large portion of the tapes.

After initially casting doubt on the authenticity of the voices and on the possibility that a recording device could have been planted in the president's office, the Ukrainian authorities have now acknowledged that the voices on the tapes are real. That is, the words heard on the tapes really were spoken by Kuchma and the central characters in the scandal: the interior minister (Kravchenko), the head of the State Security Service (Leonid Derkach), the head of the Tax Inspection Agency (Mykola Azarov), the presidential chief of staff (Volodymyr Lytvyn), and many others. What is contested is the authenticity of the conversations themselves. The official position of the Ukrainian government is that these conversations have been doctored, with words spoken by Kuchma in various contexts but edited to make them appear as part of a single, and incriminating, conversation. The government, however, has been unable to produce any credible scientific analysis buttressing this theory. In fact, the one independent expert analysis on record has concluded that such doctoring is impossible to prove. Commissioned by a parliamentary investigative commission to rule on the authenticity of the tapes, the Vienna-based International Press Institute, in conjunction with Freedom House, found that manipulation of the tapes was "nearly impossible to detect . . . with a nearly absolute level of certainty," in part because the actual digital evidence (the recordings once transferred to a computer) had not been treated by someone forensically competent, a sine qua non for making such evidence admissible in a court. This means that the tapes could be authentic, or could have been tampered with, but that no technical analysis will be able to establish the truth of the matter.

The International Press Institute, on the other hand, observed that the "huge amount of documentary evidence" (hundreds of hours) makes it "hard to believe" that the tapes are inauthentic. Consequently, the institute urged the Ukrainian authorities to assess the authenticity of the tapes through judicial means, by investigating whether the alleged criminal wrongdoing discussed in the tapes actually took place. Six months into the scandal, there is still no sign that the Ukrainian government has seriously considered this advice, and the likelihood that an independent investigation will ever take place under a Kuchma regime appears to be as remote as the possibility that the conversations on the tapes are pure fabrications.

This is the crux of the problem. By all indications, the Office of the Procurator General, under Mykhaylo Potebenko, has been acting as the political arm of the presidency, arbitrarily pursuing political opponents of the moment (such as former deputy prime minister Yuliya Tymoshenko), while otherwise displaying an embarrassing lack of professionalism. The announcement, in May 2001, that Gongadze had been killed by two criminals, who had been promptly and conveniently killed by other criminals, did little to enhance its reputation. Meanwhile, no other institution has sufficient autonomy or strength of purpose to compel an independent investigation. While the work of the Temporary Investigative Commission of the Ukrainian Parliament, spearheaded by former justice minister Serhiy Holovatyi, has been critical in bringing about international pressure, parliamentary commissions lack the resources and legal basis to engage in extensive investigations of their own. As for the media, it remains dependent on the powers-that-be and is, on the whole, more inclined to speculate than publish analyses based on documented facts.

The present unwillingness of the Ukrainian authorities to investigate the allegations of criminal wrongdoing starts with the Gongadze case. The facts are as follows. Gongadze was a muckraking journalist, largely unknown to the public since most of his activity took place on the Internet. In the spring of 2000, he founded the website Ukrainska pravda, impudently exposing presumed cases of government corruption. As a result, he was barred from official press conferences. In the summer of 2000, he officially complained to the police about being followed. On September 15, 2000, the day of Gongadze's disappearance, the journalist Oleg Yeltsov, whose article had recently appeared in Ukrainska pravda, was harassed by the Ukrainian police. After investigating the case, the Paris-based Reporters without Borders expressed the "certitude" that Gongadze had been kidnapped for his journalistic work (Reporters sans frontières, "La vérité mutilée: Enquête sur l'assassinat du journaliste Géorgiy Gongadze,' Rapport rendu public le 22 janvier 2001; available at www.rsf.fr). The New York-based Committee to Protect Journalists came to the same conclusion. The Ukrainian Procurator's Office, however, seems to have decided in advance that the motives of Gongadze's kidnappers and murderers were apolitical, ruling out from the very beginning an investigation as to whether, and why, the journalist had been under surveillance before his disappearance.

This makes the allegations on the tapes all the more credible. The tapes contain fairly explicit conversations about what had long been suspected, namely, that the "power structures" (silovy struktury)- the Ministry of the Interior, State Security Service, and even the Tax Police Agency-are being used by the executive to intimidate political opponents, judges, and journalists. The Procurator's Office is on record as saying that none of these allegations of wrongdoing by Ukrainian officials will be investigated until it rules on the authenticity of the tapes, a stance which did not prevent it from filing a criminal suit against Melnychenko for the "illegal taping and disclosing of state secrets." The procurator general's position is indefensible. The criminal charge of treason against Melnychenko can only be based on an assertion that portions of the tapes allegedly containing state secrets are authentic, a stance which not only contradicts the procurator's official position on the tapes but which has already been ruled technically impossible to determine by international experts in electronic evidence. Since the detection of manipulation of the tapes cannot be established beyond a reasonable doubt, the procurator's decision to target Melnychenko, and Melnychenko alone, for criminal prosecution, while declining to investigate, for instance, the activities of the Ministry of Interior's elite "eagles" can only reinforce the belief that it is more interested in protecting the executive from serious accusations than in protecting the public from possible misdeeds by the executive. In plain terms, this means that, under the current political conditions, Ukraine does not possess an independent and impartial investigative branch.

Election violations
The tapes contain evidence that President Kuchma explicitly ordered local officials to deliver votes for his presidential reelection in the fall of 1999, another grave allegation deemed not worth pursuing by the procurator general. The allegation, however, must be understood in the context of devastating evidence collected by international fact-finding and monitoring missions prior to Kuchmagate. In a stinging report, published in December 1999 and questioning the legitimacy of the October-November 1999 presidential election, a Council of Europe observation team had castigated the practice by Ukraine's presidential administration of making the heads of state institutions (regional and local executive bodies, universities, schools, hospitals, and the military) personally responsible for producing majorities in favor of Kuchma.

The OSCE Office for Democratic Institutions and Human Rights had accumulated documentary proof of numerous instances where such pressure was applied and bluntly stated that the sudden resignation of three governors, in whose provinces Kuchma was trailing after the first round, "defied belief." Needless to say, the mobilization of state resources at the service of one candidate is a gross violation of European standards, as well as of the Ukrainian Election Law, which prohibits public officials and their employees from participating in campaign activities. Leaving diplomatic niceties aside, the Council of Europe observation team called the election campaign "a disgrace" and a breach of Ukraine's commitments to the OSCE and its obligations under the European Human Rights Convention. One sentence unceremoniously captured the spirit of the report: "Our verdict of the campaign is totally negative" (Ad Hoc Committee to Observe the Presidential Elections in Ukraine [October 31 and November 14, 1999], Report to the Parliamentary Assembly of the Council of Europe, Doc. 8603, December, 21 1999; available at www.coe.fr).

The sharp message, however, fell on deaf ears. Barely five months after his questionable reelection, the Ukrainian president rushed through a referendum aimed at greatly expanding his powers vis-à-vis parliament. Once again, the heads of institutions throughout Ukraine were mobilized, under threat of dismissal, to bring out the predictably correct vote. Millions of signatures were collected-a referendum initiative requires a formidable number of signatures- before the actual referendum questions were even publicly divulged. As with the election campaign, private and state-owned media were pressured to present only the presidential point of view. The actual voting, which lasted ten days and involved a huge proportion of votes cast in advance (one-third), was in itself suspect. The Council of Europe and International Human Rights Federation, citing the Ukrainian Committee Helsinki-90, which closely monitored the campaign, wrote that the "way the referendum was organized and carried out had nothing in common with the recognized norms of democracy" (International Federation for Human Rights Report 2001, "Human Rights in the OSCE Region," Vienna, May 2001; available at www.ihf-hr.org).

The nature of the presidential referendum also raised questions about its constitutional validity. President Kuchma wanted the population to express a vote of no confidence in parliament; to support his contention that the Constitution can be amended through referendum; to give him greater power to dissolve parliament; and to abolish parliamentary immunity to criminal prosecution, reduce the number of deputies from 450 to 300, and create a second chamber representing regional interests. A month before the April 2000 referendum, a Council of Europe fact-finding mission expressed "deep concern" about the referendum's constitutionality. The mission noted that the 1996 Constitution clearly states that amendments require a two-thirds vote in parliament, to be followed by a ratification by referendum. By publicly asserting that the referendum results would be binding on parliament, the president openly challenged the legal procedure for amending the Constitution. The case was brought to Ukraine's Constitutional Court. In a landmark judgment, issued three weeks before the vote, the Court ruled that the Constitution could not be directly amended by referendum, although parliament was "obliged to consider [the referendum] questions and take relevant decisions," according to the amendment procedure established by the 1996 Constitution (Ruling of the Constitutional Court of Ukraine on the case of the All-Ukrainian Referendum on People's Initiative; available at www.mfa.gov.ua). The Court also ruled that a popular vote of no confidence in an organ of state power was unconstitutional. Two of the six questions were thus barred from the referendum.

Even though the East European Constitutional Review called the Constitutional Court's ruling "mystifying" and "politically driven" (Ukraine Update, EECR 9, nos. 1/2 [Spring/Summer 2000]), the judgment had a logic of its own that could not but displease President Kuchma. In an opinion issued in October 2000, the Venice Commission, the legal advisory arm of the Council of Europe, noted that this "very important decision . . . opens the door for a possible solution on the basis of consensus [between the presidency and parliament]" and "makes it possible to ensure that the amendments finally adopted will not contain any provisions incompatible with European standards." The Court, no doubt, purposely left unclear how parliament is to interpret the phrase "obliged to consider," as it pertains to referendum results, yet by explicitly forbidding the Constitution's amendment by referendum, the Court seemed to be suggesting that parliament's role in the process was far more than one of ratifying decisions taken elsewhere. In its reasonable reading of the constitutional checks and balances between the presidency and parliament, the Court indicated that, in an attempt to persuade parliament to amend the Constitution, the president could use the appeal of a popularly supported referendum (as long as the substance of any given question was not unconstitutional) but could not force parliament to adopt the suggested changes, let alone with the exact wording he desired. According to Melnychenko, President Kuchma was furious at the Court and plotted to undermine its independence (the transcripts of these conversations, however, have yet to be released). The revelations of Kuchmagate have postponed indefinitely consideration by parliament of these constitutional amendments.

In the quest to enlarge his power at the expense of the Constitution, Kuchma has encountered the sort of institutional opposition that has been largely eliminated from the electoral process, since the Central Electoral Commission, by its silence, has effectively condoned the gross interference of executive bodies in electoral campaigns. The subordination of constitutionally independent bodies to the political interests of one man, however, is far reaching. The Tax Inspection Agency is another infamous case in point. In censuring the Ukrainian government for its violations of electoral procedure, the Council of Europe had singled out the unacceptable practice of conducting tax or safety inspections on media organizations in the midst of a campaign. The Melnychenko tapes apparently contain a wealth of information on how the tax inspectorate is used to reward friends (by turning a blind eye to legally doubtful transactions) and to cripple political opponents (through the threat of punishing sanctions and confiscation of property). In an astonishing case of conflict of interest, the head of the tax inspectorate, Mykola Azarov, also controls a faction in parliament. The political arm-twisting practiced by the tax police is as glaring as the pressure exerted on governors to resign "voluntarily": within days after Freedom House had announced that it would cosponsor a study of the tapes using international experts, its offices in Kyiv were subjected to a sudden tax investigation. The US-owned Eastern Economist, which had been harshly critical of Kuchma in the early days of the scandal, also incurred the immediate wrath of the tax police this past December. These two cases fit a well-established pattern of economic intimidation familiar to all players in Ukraine.

The price of Kuchmagate
Lost among the denials issued by Ukrainian authorities regarding the tapes' authenticity is the fact that the illegal operations discussed in the alleged conversations reinforce what had already been documented in myriad reports by international political and human-rights organizations. The specific responsibility for Gongadze's murder, of course, cannot be inferred from broad patterns of political intimidation, but the behavior of the procuracy speaks volumes about the political nature of the case. In the wake of the disgraceful presidential election of 1999 and alarmed by a pending unconstitutional referendum, the Ad Hoc Monitoring Committee of the Council of Europe had already, eight months before Kuchmagate, recommended that Ukraine's membership in the Council be suspended. A year later, stung by the Ukrainian executive's "repeated aggression against and continuing intimidation of journalists, members of parliament, and opposition politicians" and the lingering failure to reform the civil and criminal codes or to alter the behavior of the procurator general, the same committee recommended Ukraine's expulsion -a sanction unprecedented in the Council of Europe's fifty-year existence ("Honoring of Obligations and Commitments by Ukraine," Report of the Committee on Honoring of Obligations and Commitments by Member States of the Council of Europe, Doc. 9030, April 9, 2001; available at www.coe.fr). As of this writing, the recommendation was still under consideration.

For many years, Ukraine's economic mismanagement and stupendous corruption was seen as the main impediment to a normal, so-called European model of development. The absence of a legally stable and transparent environment governing economic transactions and privatization rules was singled out as the most fundamental problem undermining meaningful reforms. The dismissal of Prime Minister Viktor Yushchenko in April 2001, precisely because of his growing success in enforcing transparency rules at the expense of oligarchic interests, was yet another setback in Ukraine's professed aim of abiding by European economic standards. Far more unsettling, however, is Ukraine's severe backsliding with regard to basic political and human rights. Ukrainian elites have long tended to explain away their economic problems by invoking the burden of the Soviet past, a stance which by now has exhausted its capital of sympathy in the West; however, there is no even remotely credible parallel regarding the violation of rights. The fact of the matter is that Ukraine had a fairly acceptable democratic record under its first president, Leonid Kravchuk, and the fairness of the electoral process, which actually saw an incumbent unexpectedly defeated by a challenger, was certainly, in retrospect, quite impressive. The subversion of Ukraine's democratic institutions has been cynically carried out under the slogan of European integration. European policymakers, however, are incensed at the assumption that Ukraine's economic and democratic failures should be ignored in the face of what Council of Europe rapporteurs have referred to as "Ukraine's geopolitical bluff." Europe is very close to giving up altogether on Ukraine and its potential to take seriously its nationbuilding premise of European orientation.

The latter point could have unsettling domestic consequences. Ukrainians are very much aware that Russian elites continue to harbor doubts about the legitimacy of Ukrainian independence. This is a psychological predisposition, rooted in the rejection by the average Russian (in Russia proper) of the notion that the Ukrainians truly constitute a different nation; it is only partly mitigated by the official recognition of state borders in the 1997 Russian-Ukrainian bilateral treaty. As a reaction to this deep-seated denial, the Ukrainian state has, since independence, increasingly promoted the idea that the Ukrainian national identity differs from the Russian in its putative Europeanness, defined as a historical adherence to freer political and economic norms and expressed through a distinct culture and language. From this perspective, the project of European integration is presented as a return by the nation to its natural roots and as an end to centuries of Russian political domination. However, the contempt shown by the Kuchma administration vis-à-vis the practical implementation of these European norms makes a mockery of this supposed European identity. Furthermore, mounting international pressure, in the wake of Kuchmagate, has had the ironic effect of inducing Russia to officially support Ukraine's absurdly defensive accusations of Western "interference" in its domestic affairs. How can Ukraine integrate with Europe without Europe integrating with Ukraine? This explains why the hitherto-ineffectual domestic opposition to Kuchma has crystallized mostly around nationalist forces, in other words, political parties and movements with a following mostly in western and central Ukraine and distrustful of Russia's intentions. The more Ukraine retreats from European ideals, the more nationalist resistance to a feared political resubordination to Russia is likely to increase. In an intriguing way, democracy, economic reforms, and national identity in Ukraine are symbiotically linked.

Dominique Arel is assistant professor (research) at the Watson Institute for International Studies, Brown University. He has written several articles on Ukraine's language and regional politics and is the coeditor (with David Kertzer) of Census and Identity: The Politics of Race, Ethnicity and Language in National Censuses (Cambridge University Press, 2001).

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