1. IntroductionThe 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.
2. The main participants in the case
- 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.
3. Chronology of fabrication of Ukraine’s extradition request for AblyazovDocuments 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.
4. Fabrication of the criminal case against Ablyazov in RussiaThe 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!!!!!”.