Evidence of the fabrication of the extradition request with regard to the opposition politician
The media published documents proving conclusively that the Kazakh BTA Bank financed lawyers from the firm Winston & Strawn LLP, who until recently, represented Ukraine in the case regarding Ablyazov's extradition from France. This matter was agreed upon with the Deputy General Prosecutor of Kazakhstan, Andrey Kravchenko. In addition, the General Prosecutor's Office of Kazakhstan was involved in the preparation of the mandate for the Winston & Strawn LLP firm to represent Ukraine in court in the extradition case. On 25 September, 2014, the Court in Lyon questioned the legality of the mandate of Winston & Strawn LLP and forbade the firm from participation in the extradition process.
Both in Russia and Ukraine, the criminal proceedings against Mukhtar Ablyazov have been conducted by investigators who deal with ‘political’ cases. Since Kazakhstan hasn’t entered into an extradition treaty with France, it endeavours to bring Ablyazov back through Ukraine and Russia. Through the firm ‘Ilyashev and Partners’, Kazakh authorities affect the work of Ukrainian and Russian investigative bodies. Ukrainian and Russian investigators consult with the Kazakh party regarding steps taken and hinder the work of lawyers. According to the Kazakh opposition politician, Muratbek Ketebayev, representatives of the Kazakh Prosecutor’s Office meet with their Russian and Ukrainian colleagues in order to lobby them over the criminal case against Ablyazov.
Criminal prosecutions against Mukhtar Ablyazov resulted from his conflict with the President of Kazakhstan, Nursultan Nazarbayev. On 7 July, 2011, the UK government granted political asylum to Ablyazov. European countries granted this status to many associates, colleagues and relatives of Ablyazov.
On 9 April, 2014, the French court overturned the decision on Ablyazov’s extradition and referred the case back for reconsideration to the court of Lyon. It was planned that the court in Lyon would consider both requests, Ukrainian and Russian, on the same day, i.e. on 25 September, 2014. However, the consideration of the Ukrainian request lasted 12 hours, and ended late in the evening. The ruling on the Ukrainian request is going to be announced on 24 October, 2014. The Russian request will be considered on 17 October, 2014. Ablyazov's lawyers drew the Lyon court's attention to the incidents of fabrication of criminal charges by Ukrainian investigative authorities and pointed to the unstable political situation in Ukraine as well as the burning issue of corruption in law enforcement bodies. In turn, Prosecutor Solange Legras only read out formal diplomatic guarantees of Ukraine concerning the extradition of Ablyazov. Human rights defenders of the EU, Ukraine, Russia and Kazakhstan were present at the hearing, but the court refused to admit them as experts, presented by the defence.
International human rights organisations have repeatedly pointed to the political nature of the case and urged France not to extradite Ablyazov to Kazakhstan or any other country where he could be the subject of an unfair trial or be transferred further to Kazakhstan. In its resolution of 13 March, 2014, the European Parliament called on Kazakhstan to ‘renounce all claims to render opposition politicians’. The Spokesperson for External Relations of the European Union, Viola von Cramon; Chairman of the Foreign Affairs Committee of the European Parliament, Elmar Brok; Chairman of the Subcommittee on Human Rights of the European Parliament, Barbara Lohbihler, as well as MEPs: Nicole Kiil-Nielsen, Niccolò Rinaldi, Graham Watson, Tunne Kelam, Anna Gomez, Heidi Hautala and Rebecca Harms made a stand against Ablyazov’s extradition.
This report presents an analysis of documents, published on the website ‘trust.ua’, the contents of which have subsequently reverberated among journalists and human rights defenders  . Different groups of documents were published over the period between 23 February, 2014 and 17 September, 2014. The conversations and correspondence, disclosed in the media, had been carried out:
- between Maksim Melnik and the ‘Ilyashev and Partners’ law firm;
- between Solange Legras and representatives of Ukraine, Russia and Kazakhstan’s BTA Bank;
- between Roman Marchenko and workers of the General Prosecutor’s Office of Kazakhstan, including the Deputy General Prosecutor of Kazakhstan, Andrey Kravchenko;
- between Roman Marchenko and Nikolay Budilo.
London's High Court refused Ukraine’s request to extradite Ablyazov’s associate, Igor Kononko, citing the published correspondence in the case of Ablyazov: "The e-mail correspondence provokes the greatest interest, as it shows (...) undoubtedly that the procedure of producing an extradition request has been violated ... the material on which the request was founded, was fabricated by ‘Ilyashev and Partners’”.
In addition, our report refers to the information obtained through formal requests from the Ukrainian ministries and agencies: Ministry of Interior, General Prosecutor's Office, the Security Service, Ministry of Justice and Ministry of Foreign Affairs.
- Mukhtar Ablyazov - Kazakh opposition politician, an opponent to the current Kazakh regime and a personal enemy of President Nursultan Nazarbayev. In 2001, he became the initiator of the opposition movement ‘Democratic Choice of Kazakhstan’, and then fell out of favour with the president and was sentenced to imprisonment. Under pressure from the international community, in 2003 President Nazarbayev pardoned Ablyazov. After some time, Ablyazov was appointed chairman of the Board of Directors of BTA Bank. A condition for the release of Ablyazov was that he put an end to his opposition activities. However, he continued to support and finance the opposition. As a result, in 2009 the Kazakh authorities brought charges against him for financial crimes, allegedly committed by him while he was still fulfilling the function of chairman of BTA Bank. Russia and Ukraine also issued an international arrest warrant for Ablyazov. Later, Kazakhstan implicated Ablyazov in ‘inciting social discord’ and ‘preparation of a terrorist act’.
- The Law Firm ‘Ilyashev and Partners’ - Ukrainian law firm which represents the interests of Kazakhstan's BTA Bank in the criminal case against Mukhtar Ablyazov in Ukraine. In turn, after nationalisation in 2009, the Kazakh BTA Bank represents the position of the Kazakh authorities.
- Roman Marchenko and Arseniy Gerasymiv – workers of the law firm ‘Ilyashev and Partners’, who received information from the Kazakh party and gave instructions to the Ukrainian investigator conducting Ablyazov’s case.
- The law firm ‘Winston & Strawn LLP’ - a law firm which represented the interests of the Ukrainian state at the trial regarding the extradition of Ablyazov. The Ukrainian court also deemed such representation to be illegal, but Ukraine’s Appellate Court re-sanctioned the activities of the firm. Ultimately, on 25 September, 2014, the court of Lyon was presented documents proving that Winston & Strawn LLP, in fact, defends the interests of the Kazakh regime. Having examined the documents, the court questioned the legality of the mandate of Winston & Strawn LLP to represent Ukraine and forbade the firm from participating in the trial. Along with lawyers from Winston & Strawn LLP, the Consul of Ukraine in Lyon also left the courtroom.
- Andrey Kravchenko - Deputy General Prosecutor of Kazakhstan, whom the firm ‘Ilyashev and Partners’ contacted regarding the payment for services rendered by lawyers from Winston & Strawn LLP to Kazakhstan's BTA Bank.
- Maksim Melnik - the investigator who conducted the criminal case of Mukhtar Ablyazov in Ukraine. The Prosecutor's Office in Kiev suspended him from the case for abuse of power and opened a criminal case in connection with this offence. During the time of EuroMaidan, he was running ‘political’ criminal cases.
- Nikolay Budilo - investigator who is conducting the criminal case against Mukhtar Ablyazov in Russia. He is included in the list of those sanctioned in connection with the so-called ‘Magnitsky case’.
- Solange Legras- French prosecutor carrying out the extradition proceedings against Ablyazov; she cooperated with representatives of Ukraine, Russia and Kazakhstan's BTA Bank.
- Sergey Ripa - Mukhtar Ablyazov’s counsel in Ukraine.
- Mark Feygin - Mukhtar Ablyazov’s counsel in Russia. One of the most influential Russian lawyers; he is known for his involvement in many high-profile cases with a political context. Currently, in Russian courts, he also represents the interests of the Ukrainian prisoner of war Nadezhda Savchenko and a member of the Security Police of Estonia, Eston Kokhver, both have been subjected to unfounded criminal prosecutions in Russia.
Documents confirming the influence of the workers of 'Ilyashev and Partners’ on investigator Maksim Melnik received wide publicity. Through the firm ‘Ilyashev and Partners’. the Kazakh side passed to the Ukrainian investigator, personal data of those accused; prepared interrogation reports, written allegations and requests for extradition for the investigator; consulted the investigator regarding requests for disclosure of bank secrets, gave instructions as to who should be declared wanted by Interpol, what questions should be asked during the interrogations, and in what manner the investigation should be conducted.
3.1. The placing of Ablyazov on an international wanted list was accompanied by blatant procedural violations.
On 28 December, 2010, the investigating authorities of Ukraine placed Ablyazov on an international wanted list.
Counsel Sergey Ripa noted that Ablyazov had not received from the Ukrainian investigators any notification of suspicion of him committing a crime, in the absence of which, a person can not be considered a suspect from a legal point of view. The notification of suspicion was added to the case file, but was not sent to the addresses at which Ablyazov was registered or where he resided (in Kazakhstan, the United Kingdom or France). Thus, Ablyazov was not aware of the existence of the criminal case against him in Ukraine, and so there is no evidence that he sought to avoid the investigation.
The affected party is not Ukraine, but Kazakhstan's BTA Bank, which represents the position of the Kazakh authorities. According to counsel Ripa, the investigation materials indicate that Ablyazov committed a crime against Kazakhstan’s BTA Bank, however, they don’t specify any affected representative of Ukraine. No Ukrainian entities or physical persons have claimed to have suffered any damage. Thus, Ukraine is demanding the extradition of a foreign national who has never lived in the country and hasn’t caused any damage to any of its residents.
According to counsel Ripa, used as a basis for prosecution are testimonies of witnesses, who are employees of BTA Bank in Kazakhstan and Ukraine. Moreover, some of these individuals began to work in the bank after its nationalisation, and therefore could not have witnessed Ablyazov’s activities.
On 1 August, 2013, investigator Maksim Melnik prepared and filed, through the General Prosecutor, a request for the extradition of Mukhtar Ablyazov from France to Ukraine.
3.2. Winston & Strawn LLP was illegally authorised to represent the interests of Ukraine in the French court.
On 18 November, 2013, investigator Maksim Melnik, bypassing the rules established by Ukrainian legislation and exceeding his authority, issued a document entitled ‘Permission to appear in court’, which authorised the lawyers of the firm Winston & Strawn LLP, namely: Gilles Bigot and Guillaume-Denis Faure to represent the Ukrainian side in a French court in the extradition case of Mukhtar Ablyazov and "perform all actions aimed at extraditing M.K. Ablyazov to Ukraine". “The permission” of investigator Melnik was transferred to the Ministry of Justice of France through the Embassy of Ukraine in France.
On 15 May, 2014, representative of the firm ‘Ilyashev and Partners’, Roman Marchenko wrote to Deputy General Prosecutor of Kazakhstan, Andrey Kravchenko, informing him that it was not easy to issue a mandate to the French lawyers, allowing them to represent the interests of Ukraine, as it is not expressly provided for by Ukrainian legislation. Roman Marchenko wrote as follows: "You remember [it] well, as you helped with this, but even with my, then, good relations with everybody, it was done with moans and groans”.
In a letter to Andrey Kravchenko, Roman Marchenko requested that the issues regarding the financing of the lawyers of the firm Winston & Strawn LLP be urgently resolved. In the letter, Roman Marchenko informs the Kazakh Deputy General Prosecutor about the financial costs: "... the last 6 invoices, issued by my firm, have not been paid. At the same time, ‘inside [the heart of the matter]’ there are still huge (for us) amounts outstanding relating to our costs incurred through the ‘old’ payments to English and French lawyers for the aforementioned matter (extradition). It is necessary to quickly resolve this issue as well, because the Frenchmen want to receive an advance payment again, and I just don’t have the resources to do so, unless the Bank pays the old invoices”. In the body of the text ‘Budget proposal’, attached to the email message, it is stated that, the total amount of money for the services rendered by the firm ‘Winston & Strawn LLP’ is approx. 320 thousand euros.
It is important that the participation of the firm ‘Winston & Strawn LLP’ in the trial on extradition is compliant with French law; however, it contravenes Ukrainian law as:
- Cooperation with a private company should be confirmed in the bilateral agreement with the Ministry of Justice of Ukraine, which it wasn’t;
- Payment for the services of the law firm representing the interests of the state of Ukraine should come from the state budget of Ukraine.
- The investigator did not have the right to give ‘permission’ to Winston & Strawn LLP. This is the sole responsibility of the General Prosecutor's Office. On 14 May, 2014, the General Prosecutor's Office stated it had not issued to any firm (including to ‘Winston & Strawn LLP’) authority to represent Ukraine in the extradition case of Mukhtar Ablyazov. However, on 23 May, 2014, in its letter to the Ukrainian Embassy in France, The Prosecutor’s Office claims it had ‘no objections’ to the fact that the Ministry of Interior issued permission for the firm ‘Winston & Strawn LLP’ to participate in the trial.
On 3 June, 2014, the Pechersky District Court of Kiev declared the permission given by investigator Melnik to the firm ‘Winston & Strawn LLP’ to represent the interests of Ukraine in the extradition process regarding Ablyazov to have been granted unlawfully. The Court found that neither Ukrainian law nor international agreements give the right to the investigator to issue extradition documents to another state. The prosecutor's office and the firm ‘Ilyashev and Partners’ appealed against the decision.
On 19 June, 2014, the Appellate Court of Kiev granted the appeal and deemed lawful the permission issued by investigator Melnik. In its decision, the Appellate Court cited the provisions of French law, which seems inappropriate, as inconsistencies with Ukrainian law have been ignored. According to Sergey Ripa, a document such as ‘Permission to appear in court’ is not provided for by any legal act of Ukraine.
3.3. Investigator Maksim Melnik was withdrawn from running the criminal case.
The defence team of Mukhtar Ablyazov was given the opportunity to begin their familiarisation with the materials of the criminal case only after the change of political leadership in Ukraine. Human rights activists and MPs, in their official requests, drew the attention of the new leaders, in the corridors of power, to numerous violations, committed in the case of Ablyazov.
On 17 July, 2014, the Central Investigation Department of the Ministry of Internal Affairs of Ukraine agreed that during the pre-trial investigation “shortcomings and failures were allowed, and the state of the pre-trial investigation and operational support did not comply with the requirements of the Ministry of Interior”. Disciplinary measures were undertaken in connection with these wrongful activities.
On 30 July, 2014, in response to the statement of counsel Ripa, the Prosecutor's Office of Kiev opened a criminal case in connection the abuse of power by investigator Melnik (Article 366 of the Criminal Code of Ukraine). On 14 August, 2014, the Ministry of Interior confirmed that Melnik had been removed from Ablyazov’s case.
It should be noted that during the governance of Viktor Yanukovych, investigator Maksim Melnik was engaged in ‘political’ criminal cases, including those against activists of the EuroMaidan, opposition politician Yuriy Lutsenko, independent media outlets (‘Radio Liberty’, online TV channel ‘UkrStream.TV’, and the ‘Channel 5’ TV channel.
Artem Plyushkin was appointed as the new investigator in Ablyazov’s case in Ukraine. Counsel Ripa noted that the new investigator prevented him from receiving information on the case and at the same time, he makes ‘jokes’: "Ask Melnik about it’. The counsel has reason to believe that, in reality, the case is still being conducted by Maksim Melnik.
According to the information obtained by Kazakh opposition politician Muratbek Ketebayev, recently, representatives of the Kazakh authorities have particularly intensified their influence on officials of Ukraine’s General Prosecutor's Office. According to Ketebayev, the main lobbyist of non-closure of the criminal case against Ablyazov in Ukraine is the Deputy General Prosecutor, Viktor Shokin. On 9 September, 2014, a delegation of Kazakhstan's General Prosecutor's Office arrived in Kiev on a working visit. The formal purpose of the visit was ‘analysing the experience of Ukrainian colleagues'.
The cases against Mukhtar Ablyazov and his colleagues in Russia are led by investigators and judges who are included in the list of international sanctions on the ‘Magnitsky case’ (investigator Nikolay Budilo, Deputy General Prosecutor Viktor Grin, Judges: Sergey Podoprigorov, Elena Stashina, Alexey Krivoruchko and Svetlana Ukhnaleva).
4.1. Gross procedural violations on the part of the Russian investigators.
According to opposition politician Muratbek Ketebayev, On 24 April, 2014, senior officials of Kazakhstan and Russia held a meeting in order to coordinate actions, aimed at bringing about the extradition of Mukhtar Ablyazov to Russia.
Russian and Kazakh authorities exert pressure on defendants and witnesses in the criminal case, encouraging Ablyazov’s colleagues to ‘cooperate’ with the investigators in exchange for the dropping criminal charges against them. For example, such a proposal was directed to Tatiana Paraskevich. In addition, her relatives reported numerous cases of threats made against their family, living in Moscow, in order to compel Tatiana Paraskevich to sign the testimony incriminating herself and Mukhtar Ablyazov.
For a long time, investigator Nikolay Budilo hindered attorney Mark Feygin in his attempts to participate in the case as Ablyazov’s defender.
Employee of the General Prosecutor’s Office, Denis Gryunis, who is a representative of Russia in the extradition process, informally collaborated with the French prosecutor Solange Legras. In addition, Solange Legras coordinated her actions with Guillaume Faure, an employee of ‘Winston & Strawn LLP’. Under French law, representatives of Russia and Ukraine had no right to influence the actions of Solange Legras, which indicates possible abuses by the French public prosecutor.
4.2. Ukrainian lawyers of BTA Bank illegally cooperate with Russian investigators.
Recently published documents may indicate that ‘Ilyashev and Partners’ has also cooperated with Russian investigators. Although the recipient of their e-mail messages is ‘Nikolay Gudilo’, there is reason to believe that this may be a pseudonym of the investigator Nikolai Budilo.
Roman Marchenko was regularly in touch with Nikolay Budilo, discussing the issue of Russia's extradition request issued to France, in particular:
- the firm ‘Ilyashev and Partners’ provided translations into French of official documents required for the submission of the Russian request. For example, Roman Marchenko wrote: "N. N., attached are the latest translation files. We have checked them. Now 100% [of the content] has been translated and sent to you”.
- the firm ‘Ilyashev and Partners’ chose documents which were a priority for translation in order to make a request for extradition. Marchenko drew the attention of the Russian investigators to the deadline for submitting the documents, "N. N., please see the attached translations (the next batch of them). I would like to draw your attention to the fact that, according to French legislation, the minimum batch, required under the Convention, should be in France by 30 August, 2013!!!!!”.
The actions of ‘Ilyashev and Partners’ may qualify as an obstruction of justice and exertion of influence on a law enforcement officer (Article 294 of the Criminal Code of the Russian Federation and Article 343 of the Criminal Code of Ukraine). The published evidence suggests that some of the lawyers of the firm ‘Ilyashev & Partners’ breached the attorney oath which constitutes grounds for revoking their right to practice law (in accordance with Article 32, section 2 of the Law of Ukraine ‘On Advocacy activities’).
Diplomatic guarantees of Ukraine and Russia in the case of Ablyazov cannot be considered reliable. Ukraine and Russia cannot be perceived as safe for rendition due to several reasons.
5.1. Аblyazov will not be ensured a fair trial.
There is a threat that in Ukraine and Russia, Kazakh authorities will continue to exert undue influence on the course and outcome of the criminal case and Ablyazov will be subjected to interrogation in the interests of Kazakhstan. The Czech Republic and Great Britain refused Ukraine’s request render Ablyazov’s colleagues Tatiana Paraskevich and Igor Kononko due to the political nature of the allegations within the case of Mukhtar Ablyazov.
The officials, who initiated proceedings against Ablyazov in Ukraine, are currently involved in their own criminal cases. After the events of the EuroMaidan, the problem of corruption in the Ukrainian judiciary has not been resolved; on the contrary, the situation has deteriorated. On 16 September, 2014, the Ukrainian parliament passed the law on lustration. The head of the Lustration Committee of Ukraine, Yegor Sobolev, stated that he was ready to seek the dismissal of the officials who were involved in corruption schemes within the framework of the criminal prosecution of Ablyazov: "It is shameful that our country is involved in a case like this”.
It should also be noted that, due to the Russian military aggression of August 2014, the Ukrainian parliament adopted a number of important legislative changes in the regulation of law enforcement activities. Significantly enhanced was the role of the prosecutor, who has been given some of the powers of the judge, in particular, the right to make his or her own decisions regarding the arrest of individuals. The adopted laws are designed to regulate the activities of law enforcement agencies in the area of counter-terrorism operations. However, this area is not formally specified, and the laws are to be applied on a continuous basis, which may bring about the danger of their possible application throughout the entire territory of Ukraine.
As for the diplomatic guarantees given by Russia with regard to Ablyazov’s case, they have no grounds. Russian authorities have already demonstrated their attitude towards international law through their annexation of the Crimea and deployment of their armed forces in the conflict in the east of Ukraine.
5.2. The threat of torture and ill treatment.
In Russia, the situation regarding torture in places of detention is disastrous, and the number of complaints filed in recent years has increased. Ukraine hasn’t solved the problem of torture either, as has been repeatedly reported by international human rights organisations. Over the first 8 months of 2013, the Ukrainian Ministry of Interior received 987 complaints related to torture allegedly exerted by police officers.
5.3. The possibility of Ablyazov’s illegal rendition to Kazakhstan.
The General Prosecutor's Office of Kazakhstan does not conceal its intention to bring about the extradition of Mukhtar Ablyazov to Kazakhstan, despite the absence of an extradition treaty with France. In response to a letter from the Polish parliamentarians, the Ukrainian Prosecutor's Office stated that, should Kazakhstan file a request for a further rendition of Ablyazov, Ukraine will not be able to do so without the consent of the French party. However, in practice, it is not legal factors, but political ones which may play the decisive role, and Ablyazov could become a bargaining chip in bilateral relations between Ukraine and Kazakhstan.
5.4. Ablyazov may be abducted by Kazakh special services.
Ablyazov may be covertly transferred to Kazakhstan. Intelligence agencies of this country are eager to carry out illegal actions on the territory of neighbouring countries. Among the well-known examples of ‘hunting’ for civil society activists and opposition politicians in recent years are: surveillance of the publisher of the newspaper ‘Golos Respubliki’ [‘Voice of the Republic’], Daniyar Moldashev in Moscow in March 2011, and the attempted kidnapping of oppositionist Aynur Kurmanov in Moscow on 15 December, 2012. Also widely reported was the story of Russian citizen Leonid Razvozhayev who was kidnapped in Kiev by the Russian special services on 19 October, 2012.
Respecting the principles of human rights and rights of refugees, the EU must take into consideration the above mentioned evidence of the clear political nature of the case against Mukhtar Ablyazov as part of the campaign to persecute opponents of the Kazakh regime. Unfortunately, undue influence of the Kazakh side has been exerted not only on Ukrainian and Russian investigative authorities, but also the French prosecutor. In order to avoid further similar manipulation by the Kazakh and Russian intelligence services, it is necessary to conduct a thorough investigation into the falsification of extradition requests and fabrication of criminal charges against Mukhtar Ablyazov and his associates.
No allegations regarding economic crimes made against Mukhtar Ablyazov can be considered outside the context of his political persecution for opposition activities. We stand in solidarity with the calls of international, Ukrainian and Russian human rights organisations to prevent the extradition of Mukhtar Ablyazov from France, as in Ukraine and Russia, the life and wellbeing of the opposition politician would be threatened: he may become the subject of a politically motivated trial, torture or illegal rendition to Kazakhstan.