Kazakhstan exerts illegal and political influence on Ukraine and Russia in the framework of the criminal case against Mukhtar Ablyazov and Tatiana Paraskevich. The Czech Republic refused to extradite Paraskevich, however, Ukraine and Russia re-submitted similar requests for her extradition.
There is reason to believe that, through the Czech prosecutor’s office, Kazakh lobbyists seek to have the subsidiary protection, granted to Paraskevich, revoked which would be an unprecedented ruling in the Czech Republic. This could constitute a dangerous precedent involving interference by authoritarian regimes in extradition proceedings and asylum cases in the EU.
1. Introduction
The authorities of Ukraine and Russia have applied Kazakhstan’s guidance in the criminal case against Kazakh opposition politician Mukhtar Ablyazov. Documents published in the media confirm that the criminal case was trumped up. The purpose of the criminal prosecution of Tatiana Paraskevich is to obtain evidence against Ablyazov.
Representatives of the Kazakh authorities offered to close Paraskevich’s cases in Ukraine and Russia with immediate effect in exchange for her testimony against Ablyazov. This demand was also made by Russian investigators who threatened to harm Paraskevich’s relatives. Tatiana Paraskevich refused to sign the incriminating testimony. In retaliation, the Nazarbayev regime exploited all mechanisms in order to restrict Paraskevich’s opportunity to travel, open bank accounts, find accommodation or employment and sought to retard her with fresh, protracted litigation.
Russia and Ukraine accused Paraskevich of ‘embezzlement of funds from BTA Bank’ and membership of Ablyazov’s ‘organised criminal group’.The political nature of the case against Ablyazov and Paraskevich has been highlighted repeatedly by human rights organisations and MEPs. EU member states have granted asylum to Ablyazov’s relatives and associates.
In 2014, the Czech Republic refused to extradite Paraskevich both to Ukraine and to Russia. However, in 2016, Ukraine and Russia submitted subsequent requests for her extradition almost simultaneously whilst including the very same documents that the Czech Republic had previously considered in 2014 in an attachment to the request. These ‘harmonious’ actions carried out by Russia and Ukraine can be attributed to the illegal and political influence of Kazakhstan, the true mastermind behind the charges.
In 2014, the kazaword.wordpress.com portal and the media published correspondence between Kazakh officials and their representatives. The Kazakh authorities announced that electronic email accounts of members of the government had been hacked before filing a civil lawsuit in a court in New York against unidentified hackers. Kazakhstan also demanded through a US court that all publications containing analysis of the published correspondence be taken down from the Kazakh portal ‘Respublika’, the demand, however, was rejected. The published correspondence led to significant reputational and political losses for the Kazakh authorities who, through a New Zealand court, managed to secure a decision on the disclosure, by the file hosting service Mega, of information pertaining to the users who posted the correspondence online.
The published correspondence confirmed that Kazakh representatives had prepared draft written charges and issued direct instructions regarding the case for Ukrainian and Russian investigators. In Russia, the case is being conducted by investigators and judges whose names are included in the ‘Magnitsky list’. Criminal proceedings were instituted with respect to charges of abuse of power against the Ukrainian investigator conducting the case against Paraskevich.
Counsels of Kazakhstan’s nationalised BTA Bank have repeatedly appealed to the Czech law enforcement authorities to prevent the granting of international protection to Paraskevich. Still, the Ministry of Internal Affairs of the Czech Republic granted to Paraskevich, subsidiary protection – a form of international protection. Currently, however, the General Prosecutor’s Office of the Czech Republic is pushing for the revocation of Paraskevich’s status through the courts (this is the first such case in the Czech Republic).
There is reason to believe that the Kazakh lobbyists may influence these processes. Thus, the example of Paraskevich could create a dangerous precedent according to which individual states are able to bring about the revocation of asylum granted to their opponents by the EU and affect the outcomes of extradition cases.
Ukraine and Russia are not safe countries for extradition. In these countries, Paraskevich could be subjected to interrogation in the interests of Kazakhstan, transferred to Kazakhstan or kidnapped by Kazakh secret services.
Between May and September 2016, Ukraine recorded three high-profile cases in which both the rights of refugees and extradition procedures were violated. The Ukrainian government has long since ignored the refugee status of Azerbaijani human rights activist Alovsat Aliyev, held in custody, with the process for his extradition having begun. However, his extradition was successfully stopped thanks to the publicity the case attracted and the intervention of the German Embassy in Ukraine.
Another example is the case of Vyacheslav Platon (Kobalev) who on 29 August, 2016, was deported from Ukraine to Moldova by charter flight on the basis of a decision by the prosecutor’s office’s which had not entered into force (which actually equates to kidnapping). The General Prosecutor’s Office of Ukraine did not permit him to exercise his legitimate right to appeal the decision on his extradition. Platon (Kobalev) is a holder of a Ukrainian passport which means his extradition is inadmissible as, according to Ukrainian law, a citizen of Ukraine cannot be extradited. However, the prosecutor’s office declared that the passport was a forgery in the absence of any investigation.
On 12 September, 2016, the Migration Service of Ukraine refused to consider the asylum application of Russian citizen Aminat Babayeva. Subsequently, employees of the Security Service of Ukraine kidnapped Babayeva from the Department of Migration Service and forcibly deported her to Russia.
Recently, a Russian court found opposition politician and nationalist Aleksandr Potkin guilty of ‘legalisation of funds stolen by Ablyazov’ and ‘conspiring to overthrow the government’ ‘on Ablyazov’s instructions’. This serves as another example of close cooperation between Nazarbayev and Putin in the interests of prosecuting political opponents. Thus, the case of Ablyazov is used as an instrument for the elimination of representatives of both the Kazakh and Russian opposition.
In order to get their hands on political opponents and their supporters, Kazakhstan, with the help of Ukraine and Russia, misuses Interpol mechanisms and violates the rights of refugees as well as international human rights agreements. This report contains data and factual information which confirms that neither the Ukrainian authorities, who are sabotaging the justice reform process, nor the Russian government, which abolished the primacy of international law, can guarantee a fair investigation, trial, appropriate conditions of detention nor freedom from torture.
Background information regarding the case
Russian citizen Tatiana Paraskevich is a former colleague of Mukhtar Ablyazov, Kazakh opposition politician, businessman and political refugee.
In 2001, Ablyazov became one of the founders of the influential opposition movement ‘Democratic Choice of Kazakhstan’. In 2005, Mukhtar Ablyazov headed Kazakhstan’s BTA Bank which he had been the majority shareholder of since 1997. As an influential politician and businessman, he supported and financed the opposition, advocating the implementation of systemic democratic reforms. For this reason, he fell afoul of President Nazarbayev. Subsequently, in 2009, BTA Bank was forcibly nationalised, and Ablyazov and his associates (including Ms. Paraskevich) were accused of ‘embezzlement of funds from the bank’. Prior to the conflict between Nazarbayev and Ablyazov, state authorities had not detected any violations on the part of the bank which from 2006-2009 occupied first place in ‘the best banks in Central Asia’ rankings. The forced change of ownership of the bank resulting from its nationalisation prompted international creditors to demand the early repayment of all international liabilities causing the bank to default.
Kazakhstan later accused Ablyazov of ‘inciting social discord’ and ‘organisation of a terrorist act’. In line with a request issued by Kazakhstan, which hasn’t concluded any extradition treaties with the majority of EU countries, Russia and Ukraine also initiated criminal cases against Ablyazov and his associates (Paraskevich included).
In 2011, Ablyazov was granted political asylum in Great Britain. International human rights organisations and more than 60 representatives of the European Parliament have repeatedly underlined the political nature of Ablyazov’s case. Ablyazov’s colleagues and relatives have been granted asylum or subsidiary protection in Great Britain, Poland, Spain, Italy, Belgium, the Czech Republic, Austria, the United States and Lithuania and refusals have been issued in response to requests for the extradition of persons involved in the same criminal case as Paraskevich to Ukraine (Great Britain refused to extradite Igor Kononkov and Roman Solodchenko, and Lithuania – Syrym Shalabayev).
2. The Czech Republic refused to extradite Paraskevich, but Ukraine and Russia resubmitted demands for their extradition
In March 2014, the Czech Republic refused to extradite Paraskevich both to Ukraine and Russia. However, in 2016, Ukraine and Russia resubmitted requests for her extradition almost simultaneously. These requests bore similar wording and were also similar in terms of structure of content. Documents submitted along with the requests were identical to documents previously submitted as attachments by both Ukraine and Russia (written charges and arrest warrants dating back to 2012-2013).
In the second request, Ukrainian prosecutor’s office stated that they considered the extradition of Paraskevich permissible, as ‘at present, the competent authorities of the Czech Republic render wanted individuals to Ukraine’. In Russia’s request, the General Prosecutor’s Office of the RF expressed dissatisfaction with the granting of subsidiary protection to Paraskevich, stating that the Czech authorities ‘had been misled’.
3. Attempts to have Paraskevich’s subsidiary protection revoked
On 18 February, 2014, the Ministry of Internal Affairs of the Czech Republic granted to Paraskevich subsidiary protection – a form of international protection. Subsidiary protection is granted to individuals who would be at risk of serious harm if returned to their home country. The MIA justified its decision by stating that in Russia, Paraskevich could face torture and inhumane treatment.
On 16 February, 2015, Paraskevich’s subsidiary protection status was extended by the Czech Interior Ministry by two years.
For several years, the adoption of these decisions was prevented by representatives of the Kazakh authorities, unconnected to the case: in October 2013, a representative of the Kazakh nationalised BTA Bank, Vaníček, filed with the Czech Interior Ministry, a package containing documents which were supposed to convince Czech colleagues that Paraskevich’s application for international protection should be refused. In addition, the documents, published in the media, clearly indicated that Vaníček had met with the Czech prosecutor Vera Chekhova and urged her to file an appeal were the court to rule against Paraskevich’s extradition. The prosecutor obligingly filed numerous appeals against subsequent court rulings which deemed Paraskevich’s extradition inadmissible.
Currently, the General Prosecutor’s Office of the Czech Republic is making attempts via legal avenues to bring about the revocation of Paraskevich’s subsidiary protection status. According to available information, never before has such an attempt been made in the Czech Republic which would suggest that these processes are being influenced by Kazakh lobbyists.
On 30 October, 2015, the Municipal Court in Prague upheld the complaint of the Czech prosecutor’s office: the decision of 18 February, 2014, to grant subsidiary protection was revoked and the case was referred to the Ministry of Internal Affairs for reconsideration. The court agreed with the arguments given by the prosecutor’s office that the threat of Paraskevich facing torture in Russia ‘hadn’t been proven’.
Paraskevich’s counsel appealed against the decision of the Municipal Court in Prague, however, on 28 April, 2016, the Czech Supreme Administrative Court dismissed the appeal. According to the court, the Czech Interior Ministry should have considered the question of granting subsidiary protection more carefully, evaluated the nature of the charges and provided concrete evidence concerning the threat of Paraskevich’s ill-treatment. In addition, the Court noted that never before had it examined a complaint filed by the prosecutor’s office demanding the revocation of subsidiary protection.
On 20 June, 2016, the General Prosecutor’s Office of the Czech Republic once again filed a lawsuit in the Municipal Court in Prague with a different demand, namely, that the subsequent decision of the Ministry of Internal Affairs of 16 February, 2015 regarding the extension of subsidiary protection with respect to Paraskevich for a period of two years be revoked. The prosecutor’s office stated that the decision of 16 February, 2015, should be annulled as, previously, the had court overturned the first decision to grant subsidiary protection. The Ministry of Internal Affairs of the Czech Republic raised no objection, leaving the matter to the court’s discretion.
As an additional argument, the Czech prosecutor’s office attached to the claim, the decision of the Constitutional Court of the Czech Republic of 26 May, 2015. This court considered one of the complaints, filed by Paraskevich in 2014, regarding her release from custody. However, despite this, the court also expressed the view that the granting of subsidiary protection to Paraskevich ‘contravened the law’. The Constitutional Court cited the ruling of a British court in BTA Bank’s civil suit against Mukhtar Ablyazov, Paraskevich’s colleague. The Czech prosecutor’s office believes that the British court recognised as a proven fact that Ablyazov had committed embezzlement to the detriment of the bank.
4. Civil proceedings against Ablyazov at London’s High Court
It must be noted that civil proceedings only, and not criminal proceedings, were conducted in Great Britain. The rulings of London’s High Court were arrived at using a simplified procedure in the absence of a trial and without proper consideration of the arguments presented by the defence. Tatiana Paraskevich was neither a defendant nor a co-defendant in the civil suits in Great Britain and her name does not appear in any of the decisions issued by the London court.
The civil lawsuits concerning the amount of approx. $4.5 billion were initiated by Kazakhstan’s BTA Bank. Ablyazov has repeatedly stated that the nationalised BTA Bank is not an independent entity, but it rather fulfills the political will of the Kazakh authorities. Documents recently published in the media confirm this suspicion.
In order to create a negative image of Ablyazov, Kazakh officials (either directly or via BTA Bank) enlisted several foreign companies including Reed Smith, FTI Consulting, Portland Communications, John Howell & Co. Ltd. and Hogan Lovells. According to documents held by the Financial Times, the London law firms Reed Smith and Ronald Fletcher Baker are lobbying for the revocation of Ablyazov’s refugee status. These companies have been hired by the Ministry of Justice of Kazakhstan. Counsel Peter Salas claims that Kazakh and British officials remain in contact with respect to this issue which is illegal.
Kazakh lobbyists interfered with the court proceedings in Great Britain. In the letter of 16 August, 2013, one of the members of the government, Almat Zhamiyev, instructs the Managing Director of the BTA Bank, Pavel Prosyakin, to prepare (along with Hogan Lovells) a document on the coordination of activities with the Kazakh government regarding the litigation in Great Britain. In response, the representative of BTA Bank warns him that in Great Britain, the bank describes itself as ‘independent from the government of Kazakhstan’, and thus, the preparation of such a document would confirm ‘the coordinated work of the Bank and the government of Kazakhstan’ and ‘would constitute factual evidence’ that ‘the Bank is an instrument in the hands of the state, utilised to pursue Ablyazov’.
Hogan Lovells successfully delayed the granting of political asylum to Ablyazov in Great Britain by more than six months. During this time, the London court ruled on the lack of political nature in the civil suits filed by BTA Bank.
In the civil proceedings, Ablyazov refused to disclose his assets to the London court citing the risk of his associates’ persecution by the Nazarbayev regime. In this regard, on 16 February, 2012, Ablyazov was sentenced to 22 months in prison for ‘contempt of court’. The London Court deprived him of the right to a defence in the civil cases until he has served his term.
Ablyazov has repeatedly received warnings, including from British police, concerning the threat of his assassination or kidnapping for political reasons. Fearing for his life, in 2012, Ablyazov left Great Britain. A year later, Ablyazov’s wife, along with her 6-year-old daughter, were kidnapped in Italy, and it was only due to the efforts of the European Parliament and the UN that the family was able to return to Europe from Kazakhstan.
When Ablyazov left Great Britain, BTA Bank was able to file a motion to apply judicial decisions with regard to Ablyazov in the absence of conduct of core proceedings and without the arguments presented by the defence having been properly considered (to issue a default judgment).
Given the fact that the Czech prosecutor’s office argues its position by citing the decisions issued in the civil suits in Great Britain, one should take note of the case of Ablyazov’s relative, Syrym Shalabayev who in July 2015, was detained in Lithuania. In an appeal to the Lithuanian authorities, Kazakhstan stated that Shalabayev’s name appears in the rulings of London’s High Court and that, similarly to Ablyazov, he was sentenced to imprisonment for ‘contempt of court’. Lithuania, however, considered this argument to be insufficient and granted political asylum to Shalabayev. On 28 June, 2016 and 29 July, 2016, Lithuanian courts refused to extradite Shalabayev to Kazakhstan or Ukraine.
5. Kazakhstan’s illegal influence on the Ukrainian and Russian investigations
The Czech prosecutor’s office offers another argument according to which Czech legislation prohibits the possibility of granting subsidiary protection if there is reasonable suspicion that an individual has committed a serious crime. In Ukraine, Paraskevich is accused of embezzlement of property (Art. 191, section 5 of the CC of Ukraine). Persons convicted under this Article can expect to serve between 7 and 12 years in prison and are considered to have committed a serious crime according to the Czech criminal code. However, this argument is unfounded, as information has been published in the media which confirms that the criminal case was fabricated by Kazakhstan and that it had an illegal influence on the Ukrainian and Russian investigations.
In 2014, correspondence between Kazakh officials and their representatives was published. The revealed documents confirmed that representatives of Kazakhstan had prepared for Ukrainian and Russian investigators draft written charges against Ablyazov and Paraskevich, issued direct instructions regarding the case and remunerated individuals for ‘work undertaken’. In April 2016, renowned Russian human rights activists wrote a letter to the French government attaching the most revealing documents from the correspondence which constitute evidence of the fabrication of Ablyazov’s case.
Russian investigators from the ‘Magnitsky list’ threatened other defendants in order to coerce them to ‘confess to the crimes’ and ‘admit’ Ablyazov’s guilt. In addition, Russian investigators threatened Paraskevich’s son and daughter with battery and kidnapping should their mother refuse to sign an incriminating testimony.
According to the published correspondence, on 5 September, 2013 and 6 September, 2013 Russian investigator Nikolay Budilo, who is included in the ‘Magnitsky list’, sent to the representative of Kazakhstan’s BTA Bank Andrey Pavlov a draft document detailing written charges in the cases of Paraskevich, Ablyazov, Trofimov and others accused. The investigator requested that the names of companies and the initials of the accused be ‘verified’, and that the value of the damage caused be specified.
Kazakhstan orchestrated the Ukrainian investigation via the law firm ‘Ilyashev and Partners’ which represents the interests of Kazakhstan’s BTA Bank. For example, according to the correspondence, on 2 August, 2012 Investigator of the MIA of Ukraine, Maksim Melnik received instructions from the Kazakh side that the interrogation ‘should prove” that Paraskevich was one of ‘Ablyazov’s people’ who ‘managed offshore companies’.
In the ruling on the inadmissibility of the extradition of Igor Kononko, the High Court in London held that Investigator Melnik ‘was presented with documents for signing, but it would appear that he never participated in deciding whether the court proceedings were lawful or whether the case should have been initiated‘. Thanks to the public exposure in Ukraine, a criminal case was initiated against Investigator Melnik on charges of abuse of power.
On 4 September, 2012 in a letter to Paraskevich’s counsel, a representative of Kazakhstan’s BTA Bank Vojtěch Traplopenly stated that in exchange for ‘giving truthful testimony concerning the activities of M. Ablyazov’, Kazakhstan would close the criminal cases against Paraskevich in Ukraine and Russia immediately. In light of the published facts, it can be established that Kazakhstan has unlimited influence on the Ukrainian and Russian investigative bodies with regards to this case.
6. Paraskevich’s extradition is impermissible according to international human rights treaties
The Ukrainian and Russian extradition requests specify the same guarantees with respect to Paraskevich’s extradition: the lack of a political nature of the prosecution, protection from torture, guarantees of a fair trial and adequate conditions of detention, guaranteed access for diplomatic representatives of the Czech Republic. However, these guarantees are formal and baseless, and hence, Ukraine and Russia will be unable to ensure their implementation.
6.1. Continued cooperation with the authoritarian regime in pursuit of political refugees
Ukraine
The case of Alovsat Aliyev
On 17 April, 2016 human rights activist Alovsat Aliyev was detained in Ukraine. Azerbaijan had issued a notice for his arrest to Interpol on charges of ‘theft’ and ‘forgery’. The human rights activist stated at a Ukrainian airport that he held a refugee travel document issued by the Federal Republic of Germany. However, Ukrainian border guards did not regard this document to be one which grants protection under international law. On the day after his detention, Alovsat Aliyev was formally arrested.
According to Aliyev, he was held in a Ukrainian detention facility under unsanitary conditions with 26-27 other persons in a cell designed to hold only 20 persons. In the detention facility, a representative of Azerbaijan’s Ministry of Interior Shakhin Godzhayev was permitted to visit Alovsat Aliyev, although the meeting hadn’t previously been agreed upon with Aliyev.
Due to widespread publicity and an intervention by the German Embassy in Ukraine, on 6 May, 2016 Alovsat Aliyev was released from custody. On 10 May, 2016 a Ukrainian court refused to extradite him.
Further examples of tolerating persecution, exerted by authoritarian regimes, have taken place over the last two years as Ukraine has repeatedly and unreasonably refused to grant asylum to citizens of Belarus and Russia who are being persecuted for their support of Euromaidan. For example, in 2015, 86 Russian citizens requested asylum and yet only 11 have been granted protection in Ukraine.
Russia
The case of Aleksandr Potkin
On 24 August, 2016 the Meshchanskiy Court of Moscow sentenced Russian opposition nationalist Aleksandr Potkin, one of the defendants in the criminal case against Mukhtar Ablyazov, to seven and a half years in prison. The Russian court found Potkin guilty not only of ‘legalisation of property, illegally acquired by Ablyazov’ but also of using the legalized funds ‘under Ablyazov’s instructions’ to ‘incite national hatred’ and ‘overthrow the constitutional order of Kazakhstan’.
In all likelihood, the charges of extremism and ‘inciting hatred’ have been brought due to the fact that there was insufficient evidence in the BTA Bank case. Investigators stated that Potkin had intended to organise an anti-government uprising (‘Maidan’) in Russia with the funds acquired from the legalisation of property. At the same time, Ukrainians and representatives of Western intelligence agencies were allegedly prepared to render assistance to him. Potkin was also accused of preparation of brochures which were ‘designed to incite national hatred’ and which ‘promote the opinion that the current government is ineffective’.
Potkin was also found guilty of organizing ‘training for Kazakh activists’ in Kyrgyzstan during which he ‘instructed them on how to carry out mass riots’. Activist Zhanbolat Mamay confirmed that Kazakh activists and journalists contacted Potkin in Kyrgyzstan, but no illegal calls were articulated at the meetings. In June 2015, the National Security Committee of Kazakhstan interrogated Kazakh activists and human rights defenders regarding the meetings with Potkin and other Russian oppositionists. Interrogations were attended by representatives of the FSB. Thus, contacts between representatives of the Russian and Kazakh opposition resulted in their harassment and interrogation by security services.
Investigator Nikolay Budilo, whose name is included in the ‘Magnitsky list’ and who is in charge of the case against Paraskevich, conducted the investigation in Potkin’s case. On 8 October, 2015 another investigator Rustem Shaydullin told Potkin’s counsels that their client would be killed or maimed with the use of a screwdriver, if, within the prescribed time limit, he didn’t sign a protocol confirming that he had become acquainted with the criminal case file consisting of 102 volumes.
It should be noted that, according to Russian law, a preventive measure in the form of arrest is not provided for with respect to charges of economic crimes, which Potkin faced. Nevertheless, he was illegally detained. Aleksandr Potkin appealed against his arrest in the ECHR and, on 24 August, 2016, Russia decided to voluntarily pay compensation in the amount of 2,500 euros, without waiting for the decision of the ECHR. This payment could have been made in order to prevent a detailed study being carried out by the ECHR into the practice of unlawfully detaining persons accused of economic crimes in Russia.
6.2. The threat of rendering to Kazakhstan or kidnapping by Kazakh intelligence services
Ukraine
The case of Aminat Babayeva
On 9 September, 2016, Russian citizen Aminat Babayeva was detained by border guards in the transit area of Kharkov airport where she had arrived from Istanbul. The border guard workers informed her they wouldn’t permit her to enter the territory of Ukraine as in Turkey, she was ‘suspected of involvement in terrorist activities’. On 9 September, 2016 and 10 September, 2016, the border guards refused Babayeva access to legal counsel. On 11 September, 2016, following the arrival of a representative of the Ombudsman for the Kharkov Province at the airport, Babayeva was released.
On 12 September, 2016 Babayeva submitted an asylum application to the Department of Migration, but they refused to process her application. Subsequently, at approx. 8 pm, several employees of the Security Service of Ukraine entered the premises of the Migration Service and bundled Babayeva into a car. As she attempted to contact her counsel, her abductors threw her phone out of the car’s window. Babayeva was forcibly returned to Russia the same day.
The Ukrainian Security Service stated that it had decided to ‘expel Babayeva from the territory of Ukraine’ after which she ‘voluntarily left [Ukraine], heading towards Russia’. Babayeva’s counsel later filed a complaint with the police about her kidnapping by SBU workers.
The case of Vyacheslav Platon (Kobalev) – a businessman, for whom Moldova has issued an international arrest warrant in connection with charges of money laundering.
The counsels point out that Platon (Kobalev) is a key witness in a criminal case concerning the siphoning off of $1 billion from the Moldovan budget. According to the counsels, he intended to speak at a press conference and give a testimony to American and European law enforcement agencies about the involvement of Moldovan oligarch Vlad Plakhotnyuk in the matter. Plakhotnyuk considers himself a close friend of the President of Ukraine, Petro Poroshenko. The counsels claim that, having influence over the Ukrainian authorities, Vlad Plakhotnyuk brought about the illegal extradition of Platon (Kobalev) and thereby eliminated an inconvenient witness.
The Ukrainian prosecutor’s office considers Platon (Kobalev) a citizen of both Russia and Moldova. The counsels point out that since 1992, Vyacheslav Platon has been a citizen of Ukraine, and in 2002, he changed his last name to Kobalev in his Ukrainian passport. The State Migration Service of Ukraine has confirmed that he holds a Ukrainian passport, however, it is also believed that the passport was issued illegally given the absence of any application for a passport.
On 25 July, 2016 the Head of the Anti-Corruption Prosecutor’s Office of Moldova stated that Platon (Kobalev) had been placed on the international wanted list. On the same day, he was arrested in Kyiv by employees of the Ukrainian Security Service (SBU). According to his counsels, during his detention SBU workers subjected Platon (Kobalev) to multiple beatings and his Ukrainian passport was declared a ‘forgery’. On 28 July, 2016, the Pechersky District Court of Kyiv granted a motion filed by the prosecutor’s office to detain Platon (Kobalev) until a request for his extradition had been received from Moldova.
As reported by Ukraine’s Interpol Bureau, on 8 August, 2016, a member of the FBI at the US Embassy in Ukraine issued a request to meet with Platon (Kobalev). On 10 August, 2016 Ukraine’s Interpol Bureau addressed the GPU for permission to hold the meeting but received no response. According to counsels, the FBI representative was interested in information Platon (Kobalev) had about the misappropriation of funds from the Moldovan budget.
Platon (Kobalev) filed an application for refugee status in Ukraine. The law prohibits the extradition of an individual during the period when his or her asylum is being considered. However, according to the counsels, on 29 August, 2016 Platon (Kobalev) was presented with a decision from the Migration Service dated 22 August, 2016 detailing a refusal to grant him refugee status. As stressed by the counsels, immediately after this, on 29 August, 2016 a prosecutor from the Kyiv prosecutor’s office handed to Platon (Kobalev) a decision on his extradition to Moldova.
In accordance with Art. 590 and Art. 591 of the Code of Criminal Procedure of Ukraine, an individual has the right to appeal against a decision on his or her extradition within a period of 10 days. Still, Platon (Kobalev) was not allowed the opportunity to do so. As claimed by the counsels, immediately i.e. on 29 August, 2016 the SBU transferred Platon (Kobolev) to the airport and he was illegally extradited to Moldova by chartered flight. In Moldova, Platon (Kobalev) is being held in custody and has complained about the inhumane conditions of his detention.
The case of Ruslan Suleymanov
According to human rights defenders, Ruslan Suleymanov worked as a manager in a private construction company ‘Karavan Bazar’ in Uzbekistan. Starting in 2008, the company was subjected to a series of raider attacks by influential individuals in the country. When the company refused to transfer shares to these individuals, a number the company’s managers were charged in connection with economic crimes. Fearing prosecution, Ruslan Suleymanov initially moved to Kyrgyzstan and in 2010 – to Ukraine.
On 25 February, 2011 Ruslan Suleymanov was detained at a police station in the city of Chernigov (Northern Ukraine) where he had gone in order to apply for a work permit. In violation of Ukrainian legislation and international legal standards, until 11 May, 2011, Suleymanov was denied access to a legal counsel. On 12 May, 2011 the General Prosecutor’s Office of Ukraine issued a decision on his extradition to Uzbekistan where he was to stand trial for economic crimes. On 20 May, 2011 Ruslan Suleymanov applied for asylum in Ukraine; however, on 2 July, 2016 his application was rejected by a court. On 12 May, 2012 the UNHCR granted to Suleymanov refugee status and protested against his extradition due to the threat of torture he faced in Uzbekistan. In parallel, the human rights organisation Amnesty International launched a broad information campaign against the extradition of Suleymanov to Uzbekistan. Despite this, in violation of international obligations, on 20 September, 2012 Ukraine extradited Ruslan Suleymanov.
Russia
Human rights organisations have recorded frequent incidents of kidnapping of citizens of Central Asian countries in Russia by the intelligence services of these states. This practice is very common as legal means of bringing about an extradition are usually blocked by the ECHR. For example, Sanzharbek Satvaldiyev (transferred to Uzbekistan) and Savriddin Dzhurayev (transferred to Tajikistan) were kidnapped in Russia.
On 29 August, 2016 Uzbekistan’s intelligence services made an unsuccessful attempt at kidnapping Rakhmiddin Kamolov, a worker of the Association of Central Asia Political Immigrants, on the territory of Russia. Later, he was detained by Russian police, but he was soon released as Uzbekistan had not sent documents regarding the charges against him.
The close cooperation between the authorities of Kazakhstan and Russia is also evidenced by the fact that in Russia, representatives of the Kazakh authorities themselves interrogated defendants in the case of Ablyazov (Lev Rakovskiy, Aleksandr Volkov, Yelena Tishchenko) and forced them to sign ‘convenient’ testimonies. Russia’s willingness to fulfill its obligations is well illustrated by the following facts: in December 2015, a former manager of BTA Bank Veronika Yefimova was extradited from Russia to Kazakhstan, where she is now undergoing interrogation. Her counsel noted that there is a real threat that Yefimova’s 7-year-old daughter will be placed in an orphanage.
6.3. No guarantees of a fair trial, proper conditions of detention nor protection from torture can be ensured
Ukraine
81.4% of the population has no confidence in Ukrainian courts. Most of the representatives of the previous regime managed to retain their senior positions in the courts.
In August, 2016 under the auspices of the Ukrainian Bar Association, the Open Dialogue Foundation produced a report which revealed the problem of accusatory bias of judges and cases of violation of the adversarial principle. Members of the Ukrainian Bar Association noted that, in line with Soviet tradition, the courts maintain accusatory bias and, on occasion, they take over the functions of the prosecution. Ukrainian courts continue to broadly apply a measure of restraint in the form of detention. Prosecutors’ motions to take a person into custody or to extend their period of detention are often considered only formally and in the absence of a proper assessment of the arguments.
In 2013 and 2015, the proportion of acquittals in Ukraine amounted to 0.24% and 0.32%, respectively (which is almost identical to the situation in Russia). It’s common practice that, following the handing down of an acquittal by a judge, the prosecutor initiates a criminal case against the judge on charges of rendering a knowingly unjust decision.
As of 1 April, 2016, 538 persons had been held in detention for between 1 and 2 years, while 420 people – for over 2 years. The General Prosecutor Yuriy Lutsenko, appointed to the post in May 2016 stressed as follows: “I am aware of the fact that people are held for one, four, ten, fourteen or even twenty years in Ukrainian prisons”.
Human rights organisations have noted that in Ukrainian detention centres, conditions are much worse than in penal colonies. According to the NGO ‘Donetskiy Memorial’, in the first half of 2014, 456 people died in penitentiary facilities, 69 of which died in detention centres.
The Office of the Ukrainian Parliament Commissioner for Human Rights has detected “systemic breaches of the order of remand and imprisonment which leads to ill-treatment of detainees and inmates”. In particular, on 28 October, 2015 the Ombudsman’s Office informed the Open Dialogue Foundation that in 2015, during monitoring visits to detention facilities and penal colonies, they had observed the following systemic violations: abuse of ‘physical measures of influence’, humiliation of detainees, subjection of inmates and detainees to inhumane treatment, unsanitary conditions, inadequate food provision and medical care.
The Ombudsman’s Office pointed to the systemic problem of ill-treatment of prisoners and stressed that the living space for persons in custody did not meet European standards.
Russia
On average, over a period of 7 years, a Russian judge hands down approx. 500 indictments and only 1 acquittal in criminal cases. The rate of acquittals is 0.3% (15-20% in the EU countries). Only 6.8% of complaints filed by defense counsels are upheld by courts. As of May 2016, the number of political prisoners in Russia was 86.
Published correspondence confirms that, with regard to the case of Ablyazov, the Presidential Administrations of Kazakhstan and Russia signed an agreement on the handling of court decisions in Russia, which provided for, among others, ‘appointing curators of the BTA Bank case to the Supreme Arbitration Court of the Russian Federation to control court trials’.
Reports produced by international human rights organisations confirm the systematic and unpunished use of torture in Russia. Over the last few years, approx. 60,000 complaints of torture have been registered in Russia. Human rights activist Lev Ponomarev stressed that ‘more than one in four prisoners in Russia is subjected to torture or ill-treatment’.
6.4. The operation of law enforcement bodies doesn’t comply with international standards
Ukraine
The reform of prosecutor’s offices and the judicial system in Ukraine is being sabotaged. The personnel of prosecutor’s offices haven’t been replaced by new workers. No candidate from outside the system has been appointed head of a local prosecutor’s offices.
On 26 January, 2016, Executive Director of Transparency International in Ukraine, Alexey Khmara reported that ‘the judicial system is totally dependent and is linked with the regime and corruptors’. On 15 February, 2016 activists of the ‘Resuscitation Package of Reforms’, enunciated: “Although two years has already passed since the Revolution of Dignity, there is no accountable and transparent prosecutor’s office in Ukraine guided exclusively by legislation and the rule of law”.
In its report, the Ukrainian Bar Association and the Open Dialogue Foundation emphasise the fact that in Ukraine, prosecutors seek to convict by any means. The data for the last three years show that prosecutors dropped charges in less than 1% of cases. It should be noted that this practice, as a rule, does not apply when the prosecutors are instructed to investigate cases of torture, corruption or malfeasance on the part of law enforcement officials.
Russia
In 2015, Russia became the leader among all countries with regard to the number of violations of human rights conventions. The ECHR has found violations in 109 complaints against Russia. In December 2015, legislative changes were adopted in Russia which allow decisions issued by the ECHR and other international courts deemed to ‘contravene the Constitution of the Russian Federation’ to be ignored.
These amendments have been condemned by the Venice Commission. Russia’s Constitution now takes priority over international law.
Also, an example from the case of Tatiana Paraskevich is also worth noting: On 27 April, 2015 and 4 September, 2015 Russia’s Interior Ministry denied a request filed by the counsel of Paraskevich, to close the criminal case given the failure to provide evidence of guilt. The Russian Ministry of Internal Affairs reported that the law ‘does not require’ that the investigator provide evidence in the content of the indictment act. In accordance with Art. 17 of the Code of Criminal Procedure of the RF, an investigator (similarly to a judge) evaluates the evidence being guided by his or her ‘inner conviction’ based on the available evidence, the law and his or her ‘conscience’.
7. Conclusion and recommendations
Tatiana Paraskevich is being subjected to criminal prosecution in connection with her involvement in a particular group of persons, having friendly relations with the opposition politician Mukhtar Ablyazov. The published documents confirm that the criminal case instituted against Paraskevich was fabricated and politically motivated.
By repeatedly issuing similar extradition requests, Ukraine and Russia have ignored the decisions of the Czech authorities and showed disrespect towards the Czech Republic as an international partner. In addition, there is reason to believe that the initiated procedure of reconsideration of the subsidiary protection status of Paraskevich constitutes an attempt, made by Kazakh lobbyists, to misuse the Czech justice system. Being a democratic state, the Czech Republic must oppose this kind of practice as it undermines the rule of law and the European Asylum System.
The documents contained information about incidents of exertion of influence on the law enforcement agencies of the Czech Republic by the Kazakh authorities, wholly uninvolved in the extradition cases and the procedure for granting international protection to Paraskevich (in particular, the information about the filing by the lawyers of BTA Bank, of documents with the Czech Ministry of the Interior and their contact with Prosecutor Vera Chekhova). We would like to emphasise the need for the Czech Republic to carry out a public investigation into the incidents in which attempts have been made by Kazakh lobbyists to bring about a refusal to grant international protection to Paraskevich and the sanctioning of her extradition.
In addition, when considering asylum and extradition cases, European states shouldn’t trust formal guarantees unconditionally without examining the essence of each case. Decisions related to the rights of refugees cannot be issued on the basis of political or economic interests.
The inadmissibility of the extradition of Paraskevich has been underlined by Amnesty International, Spolek Salamoun, The Czech Helsinki Committee, members of the European Parliament, as well as approx. 20 Czech, Polish and Italian parliamentarians. The extradition of Paraskevich would violate the European Convention on Human Rights, the European Convention on Extradition and the UN Convention Against Torture.
We hereby call on the Czech authorities to prevent the revocation of Paraskevich’s subsidiary protection status and reject the repeated requests for her extradition as the Czech authorities have already adopted a decision in their regard.
You are welcome to support our appeals by addressing the following persons and institutions:
– General Prosecutor of the Czech Republic, Pavel Zeman, – 660 55, 4 Jezuitská Street, Brno, the Czech Republic, tel: +420 542 512 111, fax: +420 542 512 227, e-mail: [email protected];
– Director of Department of Asylum and Migration Policy of the Ministry of Internal Affairs of the Czech Republic, Tomáš Haišman – postal box 21/ОАМ, 3 Nad Štolou Street, 3, 170 34, Prague 7.
– Minister of Foreign Affairs of the Czech Republic Lubomir Zaoralek – 5 Loretánské náměstí, 118 00 Prague 1, the Czech Republic, tel.: +420 224 181 111, e-mail: [email protected];
– Minister of Justice of the Czech Republic, Robert Pelikán – 16 Vyšehradská Street, 128 10 Prague 2, the Czech Republic, tel.: +420 221 997 106, +420 221 997 111, fax: +420 224 919 927, e-mail: [email protected];
– Head of The Council of the Government of the Czech Republic for Human Rights, Jakub Machačka – 4 Edvarda Beneše Embankment, Prague 1,the Czech Republic, PSČ 118 01, tel.: +420 224 002 111, e-mail: [email protected];
– UN High Commissioner for Human Rights Zeid Ra’ad Al-Hussein – Palais des Nations, CH-1211 Geneva 10, Switzerland, tel.: +41 22 917 9220;
– The EU’s High Representative for Foreign Affairs and Security Policy Federica Mogherini – Rue de la Loi / Wetstraat 200, 1049 Brussels, Belgium, tel.: +32 2 584 11 11; +32 0 2 295 71 69, e-mail: [email protected];
– European Union Special Representative for Human Rights, Stavros Lambrinidis – tel.: +32 2 584 230, e-mail: [email protected];
– President of the European Parliament, Martin Schulz – Bât. Paul-Henri Spaak 09B011, Rue Wiertz / Wiertzstraat 60, 1047 Brussels, Belgium, phone: +32 2 28 45503; e-mail: [email protected];
– Chairman of the European Parliament Committee on Foreign Affairs Elmar Brok – Bât. Altiero Spinelli 05E240, Rue Wiertz / Wiertzstraat 60, 1047 Brussels, Belgium, phone: +32 2 28 45323, e-mail: [email protected];
– Head of the European Parliament Subcommittee on Human Rights, Elena Valenciano – Bât. Altiero Spinelli 11G354, Rue Wiertz / Wiertzstraat 60, 1047 Brussels, Belgium, tel.: +32 2 28 45846, e-mail: [email protected];
– Secretary Generalof the Council of Europe, Thorbjørn Jagland – tel.: +33 3 88 41 20 00, e-mail: [email protected];
– President of PACE Pedro Agramunt – tel.: +33 88 41 23 41, e-mail: [email protected]; [email protected];
– President of the OSCE Parliamentary Assembly Christine Mouton– e-mail: [email protected]; [email protected], tel: +43 (1) 401 10 3660, +43 (1) 401 10 3444;
– Chair of the OSCE PA General Committee on Democracy, Human Rights and Humanitarian Affairs, Ignacio Sanchez Amor – e-mail: [email protected], tel.: +34 91 390 6919.
