Report: The case of Mukhtar Ablyazov in Ukraine © mukhtarablyazov.org
A year after Euromaidan, the results of the work of the General Prosecutor’s Office of Ukraine have proven to be poor. Not only has the new leadership of the prosecutor’s office protracted the investigation into the crimes committed by the Yanukovych regime, but it has also become involved in a corruption scandal connected with the prosecution of the Kazakh opposition leader Mukhtar Ablyazov. Despite the Russian military aggression and the annexation of part of Ukraine’s territory, Ukrainian law enforcement agencies have contributed to a political prosecution carried out by Kazakhstan, the closest ally of Russia. It is worth mentioning that it was Kazakhstan which has recognised the Crimean referendum "as a free expression of the will of the people" and "accepted Russia’s decision” regarding the accession of the Crimea “with understanding”. On 11 February 2015, the President of Kazakhstan stated: "Yes, Russia finds itself in a difficult situation now, but we are with Russia. These barbaric sanctions help no one".
Until recently, the Ukrainian media have presented little information about the case of Mukhtar Ablyazov, although the story of the Kazakh oppositionist and political refugee is widely known in Europe, and Ukraine directly participates in his pursuit. This topic has again become a hot issue in Ukraine in 2014 following the publication of documents on the news portal Trust.ua which exposed deep corruption ties between the Ministry of Internal Affairs (MIA), the General Prosecutor’s Office of Ukraine (GPU) and the Kazakh authorities. The documents received wide publicity abroad and became one of the grounds for the decision of the High Court in London to refuse to extradite Igor Kononkov, Ablyazov’s associate, to Ukraine.
The criminal case against the Kazakh opposition leader Mukhtar Ablyazov was instituted in Ukraine on 1 October, 2009. However, the influence of the Kazakh authorities on the Ukrainian investigation was established only during the regime of Yanukovych. After Euromaidan, the Kazakh prosecutor's office swiftly acquired ‘access’ to the new leadership of the GPU and the Interior Ministry, and the old corruption plans have continued to be successfully implemented.
The private law firm ‘Ilyashev and Partners’, which officially represents the interests of Kazakhstan's BTA Bank, passed instructions to the Interior Ministry investigator Maksim Melnik. He adjusted his actions to the position of the Kazakh authorities. The Ukrainian investigator’s only job was to sign documents prepared for him by the Kazakh side. In turn, the GPU agreed with the decision of the investigator several times on the appointment of Kazakh-paid foreign lawyers to represent Ukraine in France at the trial of Ablyazov. In connection with the adoption of this illegal decision, criminal proceedings were initiated against investigator Maksim Melnik, but the Kiev prosecutor's office closed the case twice. During the era of Yarema, GPU leaders received recommendations on the case of Ablyazov from their Kazakh colleagues during informal meetings in Kiev. Thus, Ukrainian justice was actually administered by Kazakh authorities.
The case of Ablyazov is one of the numerous examples which proves that the GPU and the Interior Ministry are corrupt and do not yield easily to any attempts aimed at their reform. ‘Manual control’ of investigations, ‘telephone justice’, poor oversight of actions carried out by law enforcement officers and the covering up of their violations - all undertakings which testify to the strong ties with the old, pre-revolutionary system.
On 10 February, 2015, Viktor Shokin, who had previously served as a deputy of Yarema, was appointed as the new General Prosecutor, and, according to published documents and information aired by Kazakhstan's media, he supervised the criminal case against the Kazakh oppositionist Ablyazov. We wish to express our hope that the new leadership of the GPU will not mirror the mistakes of its predecessors, but rather demands real reforms that will lead to the dismantling of the old system.
All those responsible for violations of criminal and criminal procedure law in the case of Ablyazov should be brought to justice in accordance with law. Actions of individual employees of the GPU and the MIA, aimed at fabricating a request for the extradition of Ablyazov, discredit the law enforcement bodies and cause damage to the international reputation of Ukraine. It is noteworthy that Ukraine and Kazakhstan submitted extradition requests almost simultaneously (on 9 August, 2013 and 15 August, 2013, respectively). At the same time, the Ukrainian criminal case includes criminal charges which are not listed in the extradition request.
The recent passing of Rakhat Aliyev in an Austrian prison has become another example of a death of a Kazakh regime opponent under mysterious circumstances and is a warning to other fugitive Kazakh oppositionists. Ukrainian authorities are obliged to restore law and refuse to render assistance to the authoritarian regime in its pursuit of political opponents.
This report presents an analysis of the documents published on the Trust.ua portal (part 3, 4, 6) and on the Facebook page of a renowned Kazakh politician and civil activist, Muratbek Ketebayev. Different groups of documents were published between the period of 23 February 2014 and 21 January 2015. Conversations and correspondence, subsequently disclosed in the media, were conducted between:
- the MIA investigator Maksim Melnik and the ‘Ilyashev and Partners’ firm;
- the employee from ‘Ilyashev and Partners’ Roman Marchenko and Deputy General Prosecutor of Kazakhstan Andrey Kravchenko, Senior Assistant General Prosecutor of Kazakhstan Ulukbek Maksatbekuulu and employees of the Kazakh prosecutor’s office, Artur Lastayev and Nurzhan Rakeyev.
President of the Internet Association of Kazakhstan Shavkat Sabirov, who appears in one item of correspondence disclosed by Ketebayev, confirmed the authenticity of the letters. Also, correspondence discussing Kazakh media holdings dependent on the state, were published on Ketebayev’s Facebook page. According to some journalists, Kazakh politician and prominent businessman Bulat Utemuratov may be interested in disclosing the correspondence.
Our report also refers to information, obtained through formal requests, from the MIA, the GPU and the Ministry of Justice.
The case of Mukhtar Ablyazov: brief summary
As the founder of the first influential opposition movement in Kazakhstan, Ablyazov became the enemy of President Nazarbayev in 2002 and was sentenced to imprisonment. Ablyazov was amnestied following pressure from the international community. A condition of his release was that he disavowed his political activity; however, having been appointed Chairman of the Board of Directors of BTA Bank, he continued to support and finance the opposition. Thus, Ablyazov once again crossed the president, and in 2009, the Kazakh authorities brought charges against him and his associates relating to financial crimes allegedly committed during the management of the Bank. Subsequently, Kazakhstan accused Ablyazov of ‘inciting social discord’ and ‘preparing an act of terrorism’.
On 7 July, 2011, the government of Great Britain granted political asylum to Ablyazov. His associates, Zhaksylyk Zharimbetov and Roman Solodchenko were granted refugee status in the UK, Muratbek Ketebayev - in Poland, Alexander Pavlov - in Spain; Tatiana Paraskevich was granted international protection in the Czech Republic and Artur Trofimov received additional protection in Austria. Also, Ablyazov’s relatives were granted refugee status: his wife Alma Shalabayeva and their 6-year-old daughter Alua Ablyazova - in Italy, his sister Gauhar Kusainova - in the United States, and his uncle Kuanish Nurgazin - in Lithuania.
Amnesty International, Human Rights Watch, The International Federation for Human Rights, The Human Rights League of France as well as Ukrainian, Russian and Kazakh human rights organisations have repeatedly highlighted the political nature of the case and called for the prevention of Mukhtar Ablyazov’s extradition. Also, more than 20 representatives of the European Parliament and 8 PACE members have stood in his defence.
Following his arrest on the basis of a ‘red notice’ on 31 July, 2013, Ablyazov has already spent 18 months in different places of detention in France whilst protracted trials connected with requests for his extradition to Russia and Ukraine have taken place. It is through these countries that the Kazakh authorities have been striving to bring Ablyazov back to his homeland, as they have not concluded an extradition treaty with France. In Russia, investigators from the ‘Magnitsky list’ are involved in the Ablyazov case, while in Ukraine, for a long time, the case was run by investigator Melnik, who persecuted activists and independent media during Euromaidan.
On 9 April, 2014, the French Court of Cassation reversed the decision to extradite Ablyazov and referred the case back to the Court of Lyon for reconsideration, which on 24 October, 2014 sanctioned his extradition to Ukraine and Russia, giving priority to the Russian request. The judges stated that they only verified "the conformity of the extradition requests with procedural rules". On 4 March, 2015, the Court of Cassation upheld the ruling, arguing that the lower court had not committed procedural violations. Now, the decision on the extradition case will be issued by the French government. Also, the case may be reviewed by the Supreme Administrative Court of France and the European Court of Human Rights.
2. The Mia investigator acted on the Kazakh authorities' direct orders
In its previous reports, the Open Dialog Foundation has presented an analysis of documents confirming that the Kazakh authorities illegally influenced the Ukrainian investigator Maksim Melnik through the law firm ‘Ilyashev and Partners’. Through this firm, the Kazakh side passed to the Ukrainian investigator personal data of defendants; prepared interrogation reports, written allegations and requests for extradition for the investigator; consulted the investigator regarding requests for the disclosure of bank secrets; gave instructions as to who should be declared wanted by Interpol, what questions should be asked during interrogations, and in what manner the investigation should be conducted.
For example, an employee of ‘Ilyashev and Partners’, Arseny Gerasymiv prepared and edited for the investigator, procedural documents pertaining to the criminal cases against Ablyazov’s associates: Tatiana Paraskevich, Igor Kononko, Syrym Shalabayev, Alexander Udovenko. Gerasymiv also informed the investigator what ‘results’ he should obtain during interrogations.
Through the firm ‘Ilyashev and Partners, Investigator Melnik consulted the Kazakh side with regard to his actions. Whilst Arseny Gerasymiv ‘worked’ with Ukrainian investigators, his colleague, Roman Marchenko, constantly kept in touch with the Kazakh prosecutor's office and BTA Bank. And so, on 6 May, 2010, Roman Marchenko inquired with Ulugbek Maksatbekuulu, the then member of the Board of BTA Bank thusly: "I’ve spoken with the investigator today. He is asking whether he should place Zharimbetov on the wanted list”. To which he received a reply: "Yes, it is necessary". Later, Marchenko reported "The order has been fulfilled".
The employee of ‘Ilyashev and Partners’, Roman Marchenko regularly sent to the General Prosecutor’s Office of Kazakhstan, information about actions of the Ukrainian investigators as regards the case of Ablyazov. Below are some examples of how Marchenko reported to the Kazakh side and gave them advice:
- On 11 September, 2010, Marchenko wrote to the management of BTA Bank: “Colleagues! I am pleased to report that we have contributed to the progress of our investigators in the case of M. Ablyazov, namely: A criminal case was instituted against M. Ablyazov under Article 190, section 4 of the Criminal Code of Ukraine (...) The main motive of the case is that there existed an OCG (organised criminal group) of ‘Ablyazov, Zharimbetov and others‘.
- On 25 April, 2014, Marchenko reported that the Latvian law enforcement authorities have no evidence that Ablyazov’s associates committed the alleged crimes in Latvia, therefore they can "see no future" in the continuation of the criminal proceedings. Marchenko assigns a task to the Kazakh prosecutor’s office "to activate the criminal case in Latvia and bring about the presentation of charges to the perpetrators" and to request that the GPU ‘take over’ the case from Latvia.
- On 19 June, 2014, Deputy General Prosecutor of Kazakhstan, Andrey Kravchenko received from Roman Marchenko, samples of pre-prepared testimonies for Ablyazov’s former colleagues (Rizoyev and Mameshtegi) who ‘cooperated with the investigation’. These testimonies are in line with the position of the Kazakh investigation.
- Marchenko repeatedly informed the Kazakh prosecutor's office that in order to prevent the closure of the case against Ablyazov in Ukraine, it is necessary to ‘return the shots’ of his defenders. On 17 July, 2014 Marchenko reported that the GPU had received requests from human rights activists and MPs on the political nature and fabrication of the case of Ablyazov:
“This creates a very negative background in Ukraine and it has already begun to bear fruit - for example, the Central Investigation Department of MIA has decided to take the case from the investigator who had run the proceedings for all of 5 years, and at the hearing, some episodes in relation to the organised criminal group have been recognised as contrived”.
- In response, Marchenko offers the Kazakh side a chance to implement a corrupt scheme, namely, to pay for the preparation and lodging of appeals by MPs to the GPU and the MIA with a demand that the criminal proceedings remain open, and that the extraditions of Ablyazov and of his associates go ahead: "Then, you can use this fact in the media. Our remuneration in this case will amount to approx. 4,000 euros for each appeal”. On 1 September, 2014, a report was drawn up for Kazakhstan’s prosecutor’s office stating that on 27 August, 2014 an appropriate appeal was sent to the GPU and the MIA by Vasiliy Kravchuk, an MP from the ‘Batkivschina’ [‘Fatherland’] party. It is note worthy that the MP had a dubious reputation, as he repeatedly voted for the bills of the former government of Azarov, and due to this fact, he was under the threat of expulsion from the ‘Fatherland’ faction.
3. The GPU received instructions from the Kazakh Prosecutor's Office at informal meetings in Kiev
The analysis of the published documents confirms that from May to August 2014, top-ranking officials of the Kazakh and Ukrainian General Prosecutor's Offices held several meetings in Kiev. At all meetings, they discussed only one matter: the criminal case against Mukhtar Ablyazov. The meetings were informal. The only official statement on the GPU website alluding to a meeting with the Kazakh delegation in order to ‘exchange experience’ is dated 9 September, 2014. The firm ‘Ilyashev and Partners’ prepared the Kazakh prosecutor's office for these meetings, namely, by providing drafted speeches, and instructing them as to what issues and recommendations should be mentioned in the statements to the GPU.
The revealed items of correspondence suggest that at least two meetings regarding the case of Ablyazov took place in Kiev (although there could have been more than two):
- On 22 May, 2014, at the meeting in the GPU, alongside Roman Marchenko and Andrey Kravchenko, the Kazakh side was represented by Ulukbek Maksatbekuulu (Senior Assistant General Prosecutor of Kazakhstan, who had been a member of the Board of BTA Bank until the end of 2012). It was he that, back in 2010, gave instructions to the Ukrainian investigator as to which associates of Ablyazov should be declared wanted.
- On 20 August, 2014, one of the most important meetings for the Kazakh side regarding the case of Ablyazov was held in Kiev. On 12 August, 2014, a letter by the General Prosecutor of Kazakhstan Askhat Daulbaev, was prepared in which he requested that the GPU leadership in Kiev held a meeting with his deputy Andrey Kravchenko. According to the disclosed correspondence, Kravchenko held a meeting with the then General Prosecutor of Ukraine Vitaly Yarema and his deputy Vitaly Kasko;
- Issues for consideration during the meeting, prepared for Kravchenko, read: "The purpose of my visit today is to discuss cooperation on the specific issue of criminal prosecution of M.K. Ablyazov’s organised criminal group". Kravchenko, in his address to his Ukrainian counterpart Kasko, stated: "First of all, let me thank you for the opportunity to discuss the issues of bilateral cooperation in the legal sphere. One of the most important among them for us is the question of the prosecution of Mukhtar Ablyazov and his organised criminal group".
Prior to each meeting, Roman Marchenko sent informational materials to the Kazakh prosecutor’s office:
- Marchenko advised the Kazakh side to present to Ukraine the following recommendations: to continue criminal proceedings against Ablyazov and his associates; to present accusations to a Mr. I. Terenev, whom ‘Ilyashev and Partners’ labelled Ablyazov’s ‘accomplice’; to confirm the mandate for the firm Winston & Strawn LLP to represent Ukraine at the French court; to close the criminal case against investigator Melnik; to appoint the firm ‘Ilyashev and Partners’ as a contact for operational relations with Kazakhstan; to send GPU employees to the court hearings in France (BTA Bank expressed its willingness to pay for their travel).
- As on 9 April, 2014, Great Britain refused to extradite Ablyazov’s associate, Igor Kononko, to Ukraine, the Kazakh prosecutor's office appealed to the GPU with a request to send another request for his extradition, but on the basis of other charges.
- At the meeting on 20 August, 2014, workers of the Kazakh prosecutor’s office tried to convince the GPU to ‘ignore’ the international campaign in support of Mukhtar Ablyazov as an opposition politician. At the same time, the text containing issues for consideration for Andrey Kravchenko’s meeting included unflattering opinions about European diplomacy: "Positioning themselves as strict inspectors, MEPs, workers of international humanitarian and human rights organisations came to our country. At every meeting with the leadership of the General Prosecutor’s Office of Kazakhstan, the ambassadors of the European Union and other European countries considered it their duty to pay the greatest attention to, and show the greatest concern about, Ablyazov and his case. (...) Last time, we were visited by a representative of the OSCE Parliamentary Assembly, Isabel Santos, whose competence on the topic under discussion at the time of her arrival in Kazakhstan was next to none".
- It should be noted that Isabel Santos was the first diplomat, who on 11 June, 2014, after two years of unsuccessful attempts, managed to meet with the Kazakh political prisoner Vladimir Kozlov in his penal colony. On that occasion, she was not allowed to see another political prisoner - Roza Tuletayeva. However, appeals by the OSCE Representative Isabel Santos, as well as harsh criticism from the UN Council on Human Rights, forced the Kazakh authorities to release Roza Tuletayeva on parole.
4. Kazakhstan's BTA Bank paid for the services of the firm which represented Ukraine in the French court
On 2 September, 2013, the firm ‘Ilyashev and Partners’ made an offer to the GPU to engage lawyers on a ‘free of charge’ basis in order to ‘ensure the representation’ of the interests of Ukraine in the French court; in response to their offer, on 13 November, 2013, they received a reply from the GPU stating: "I have no objections". As a result, ‘Ilyashev and Partners’ appointed French lawyers from the firm Winston & Strawn LLP to participate in the case.
On 18 November, 2013, the investigator Maksim Melnik issued a document entitled ‘permit to appear in court’, which authorised Gilles Bigot and Guillaume-Denis Faure, lawyers from the firm Winston & Strawn LLP, to represent Ukraine in a French court and ‘perform all actions aimed at bringing about the extradition of Mr. M. Ablyazov to Ukraine’. The investigator’s ‘permit’ was transferred to the French Ministry of Justice through the Ukrainian Embassy in France. The said ‘permit’ corresponds to French law; however, it contravenes Ukrainian legislation.
In accordance with the Government Decision of 5 August, 2003, the Ministry of Justice of Ukraine is obliged to pay from the budget for the services of lawyers representing the interests of the state in a foreign court. On 20 October, 2014, in response to an inquiry sent by the Open Dialog Foundation, the Ministry of Justice of Ukraine reported that it had not executed any payment for services rendered by the firm Winston & Strawn LLP or for services rendered by other legal advisers in connection with Mukhtar Ablyazov’s extradition case and that “the Ministry of Justice is not aware of the sources of financing" of Winston & Strawn LLP’s work in the French court.
According to the published documents, Winston & Strawn LLP’s fees were paid by Kazakhstan’s BTA Bank with the mediation of the firm ‘Ilyashev and Partners’. ‘Ilyashev and Partners’ periodically requested that Kazakhstan’s Deputy General Prosecutor Kravchenko exerted ‘influence’ on BTA Bank with regard to the allocation of funds:
- On 24 May, 2014 Roman Marchenko informed Andrey Kravchenko of the need to urgently address the issue of financing the lawyers from Winston & Strawn LLP: “Unfortunately, the Bank has not yet paid our invoices, and we cannot pay Winston, and so they refuse to work until we settle their fees and transfer 50,000 as a down payment. Your influence in the matter would be greatly appreciated”. A week before, on 15 May, 2014, Marchenko provided the document ‘budget proposal’, according to which the services rendered by Winston & Strawn LLP cost approx. 320,000 euros, at the same time, the French lawyers requested that the two previous invoices totalling 76,224 dollars be paid.
The Ministry of Justice provided the State Service for Financial Monitoring with information about the possible illegal financing of Winston & Strawn LLP.
For several months, ‘Ilyashev and Partners’ made attempts to compel the GPU to confirm the mandate for Winston & Strawn LLP. Influence on the GPU was exerted through the Kazakh prosecutor's office:
- On 15 May, 2014, Roman Marchenko informed Kazakhstan’s General Prosecutor's Office: "But still, it will be necessary to issue a mandate to lawyers in Ukraine, which even earlier was a difficult task, as it is not expressly provided for under Ukrainian legislation".
- Possibly, it was these efforts, undertaken by the Kazakh side, which affected subsequent events. According to the report submitted by a worker of Kazakhstan’s General Prosecutor’s Office, Artur Lastayev, on 22 May, 2014, the GPU assured that foreign lawyers in the French court would be granted the necessary powers. The next day, i.e. on 23 May, 2014, in a letter to the Ukrainian Embassy in France, the GPU stated that “it had no objections” regarding the fact that the Interior Ministry had issued a permit for the firm Winston & Strawn LLP to participate in the trial.
- The Pecherskiy District Court in Kiev has twice (on 3 June, 2014 and 23 September, 2014) adjudged the ‘permit to appear in court’ to be illegal, citing the fact that an MIA investigator has no right to transfer extradition documents to another State. However, the Appellate Court of Kiev has also twice (on 19 June, 2014 and 20 November, 2014) recognised the ‘permit’ as legitimate, citing French (!) legislation. Having the right to participate in these trials, in June and October 2014, ‘Ilyashev and Partners’ addressed the GPU with requests that another ‘permit to appear in court’ be issued, and have twice received a denial.
In addition, the representation of Ukraine by a private company should be enshrined in the bilateral agreement with the Ministry of Justice, which was not concluded. The Open Dialog Foundation received official confirmation from the Ministry of Justice that the department has not entered into any contracts or issued any letters of authorisation to the firm Winston & Strawn LLP.
Recognising the need to obtain a letter of authorisation, the firm ‘Ilyashev and Partners’ made an offer to the Kazakh side, through the Ministry of Justice of Ukraine, to formalise the mandate for the foreign lawyers, indicating the value of their services within the range of 3,000 to 5,000 dollars. Let us remind ourselves that in its budget, the firm Winston & Strawn LLP evaluates its work at EUR 320,000:
- On 14 June, Marchenko informed the Kazakh prosecutor's office that the Ministry of Justice of Ukraine has the right to purchase the services of foreign lawyers without the need to organise a tender, if the cost of such services does not exceed 8,000 dollars, "If you support the idea, we will draw up a letter to the Ministry of Justice, offering the provision of legal services on the case of AMK (Ablyazov Mukhtar Kabulovich - Ed.), say, for 3,000 to 5,000 US dollars, the contract will be concluded and Ukrainian lawyers will appoint French lawyers on the basis of an official contract with the Ministry of Justice this time".
- Using the same idea, Marchenko proposed to the Deputy Chairman of the Board of BTA Bank, Zhanibek Saurbek and workers of the Kazakh prosecutor’s office that foreign lawyers be engaged to represent Ukraine in the extradition case of Roman Solodchenko, Ablyazov’s colleague: "Will it be necessary to ensure the representation of the interests of Ukraine by external lawyers? If so - you may want to consider the idea of lawyers being appointed by the Ministry of Justice of Ukraine?". Marchenko recommended that Kazakhstan’s prosecutor's office request that the GPU gives its consent for such actions.
On 25 September, 2014, the Court of Lyon questioned the legality of the mandate of Winston & Strawn LLP, and prohibited the firm from participating in the extradition process.
5. On the request of Kazakhstan, the Prosecutor's office has twice closed the criminal case against investigator Melnik
The incidents of undue influence of the Kazakh authorities on the work of the investigator Melnik received great publicity, and, as a result, Ukrainian law enforcement bodies instituted a criminal case against the investigator and removed him from the Ablyazov case. However, immediately after, on the recommendation of the firm ‘Ilyashev and Partners’, Kazakhstan’s Prosecutor's Office requested that its Ukrainian colleagues close the case against Melnik.
Following the meetings of representatives of the Ukrainian and Kazakh prosecutor’s offices in August and September 2014, the Kiev prosecutor's office investigator Sergey Khodakovskiy has twice issued an order to close the criminal case against Melnik. A draft of the decision was produced by ‘Ilyashev and Partners’, and the document, issued by the investigator, mirrored the draft verbatim. Consequently, the court ordered that the prosecutor’s office continue the investigation against Melnik:
- On 16 July, 2014, the Central Investigation Department of the Interior Ministry confirmed the incidents of gross violations in the case of Ablyazov, presented in the statement of the Open Dialog Foundation: "In connection with the identification of numerous violations of the Criminal Procedure Code, departmental and interdepartmental legal acts concerning the procedure of investigation and extradition, the increasing public resonance, numerous publications regarding the groundless criminal prosecution of the Kazakh civil activist M.K. Ablyazov on the territory of Ukraine, it is hereby ordered that Major M.V. Melnik, the investigator of the Investigation Department of the Main Directorate of Interior Ministry of Ukraine in Kiev be removed from the case".
- On 30 July, 2014, the Prosecutor's Office of Kiev instituted criminal proceedings against investigator Melnik, having charged him with abuse of powers by issuing ‘The permit to appear in court’ for the firm Winston & Strawn LLP (Art. 365, section 1 of the Criminal Code of Ukraine).
- A few days later, Marchenko wrote to the Kazakh prosecutor's office: “We need you to make a phone call or send someone to come to the GPU. It is necessary to: close the criminal proceedings due to lack of evidence”. In response, the Kazakh Deputy Prosecutor General stated, "What if I phone Kasko? Will it help?" (at that time, Vitaliy Kasko held the position of Deputy Prosecutor General of Ukraine - Ed.);
- The firm ‘Ilyashev and Partners’ has prepared a draft decision to close the criminal case against Melnik. The document itself was drawn up on a form from the prosecutor's office of the city of Kiev, however, it was lacking a date. On 3 September, 2014, Marchenko sent this document to his Kazakh colleagues, stating: “They have already prepared a project that we will promote through our own channels".
- After three weeks, on 25 September, 2014, investigator of the prosecutor’s office of Kiev, Sergey Khodakovsky, issued a decision to close the case against Melnik due to a ‘lack of evidence’. The decision was identical to the documents, previously prepared by ‘Ilyashev and Partners’. However, on 3 October, 2014, the decision was cancelled by the prosecutor of Kiev’s prosecutor’s office, A. Landar.
- On 20 October, 2014, Investigator Khodakovskiy re-issued the decision to close the criminal case. By a decision of the Pecherskiy District Court of Kiev of 17 December, 2014, the decision was revoked. Later, it became clear that, as of 9 February, 2015, the materials of the criminal proceedings had not yet been returned by the court. However, currently, the case is already being handled by the prosecutor’s office and the investigation is ongoing.
6. Conclusions and recommendations
On 13 January, 2015, the Central Investigation Department of the MIA stated that during the pre-trial investigation of the Ablyazov case, "violations of the criminal procedure law were committed, namely: incompleteness of pre-trial investigation, as well as violations of provisions of Art. 576 (Limits of criminal liability of the extradited person) of the Criminal Procedure Code of Ukraine”. According to Art. 576, section 1 of the Criminal Procedure Code, an individual rendered to Ukraine can be prosecuted only for the offence for which the extradition has been carried out.
In the request for extradition, Ukraine reported that Ablyazov was accused of ‘fraud’ (Art. 190, section 4 of the Criminal Code) and ‘misappropriation of another's property through abuse of office’ (Art. 191, section 5 of the Criminal Code). However, the materials of the criminal proceedings also include allegations which had not been mentioned in the request for extradition, namely, ‘an attempt to commit a crime’ (Art. 15, section 2 of the Criminal Code) and ‘legalisation of income’ (Art. 209, section 3 of the Criminal Code). Thus, one of the fundamental guarantees of Ukraine within the framework of the European Convention on Extradition has been breached.
The actions of officials of the Interior Ministry, prosecutors and the firm ‘Ilyashev and Partners’ bear the signs of violations of criminal law and criminal procedure law.
Violations committed by Mr. Melnik, investigator of the MIA:
- the dependence of the investigator upon and interference in his work by, persons who have no right to do so (Art. 40 of the Criminal Procedure Code);
- actions and decisions with regard to the investigation were not taken solely by the investigator, and procedural documents were produced for the investigator by unauthorised persons (Art. 38 and 39 of the Criminal Procedure Code of Ukraine);
- violation of the principle of legality in the activities of the police (Art. 3 of the Law of Ukraine ‘On Militia’).
Violations committed by the firm ‘Ilyashev and Partners’:
- exerting influence on a law enforcement officer in order to bring about an unlawful decision (Art. 343 of the Criminal Code of Ukraine);
- disclosure of information pertaining to a pre-trial investigation without the permission of the investigator or prosecutor (Art. 222 of the Criminal Procedure Code of Ukraine);
- disclosure of attorney-client confidential information and personal data regarding persons, violation of the principle of confidentiality (Art. 10 of the Rules of Legal Ethics, point 6 of principle I and point 2 of principle III of recommendations of the Committee of Ministers of the Council of Europe on the freedom of exercise of the profession of lawyer of 25 October, 2000);
- violation of principles of competence and integrity (Art. 11 of the Rules of Legal Ethics);
- violation of the rule of law and legality (Art. 4 of the Law of Ukraine ‘On the Legal Profession and the Practice of Law’).
Violations committed by the GPU and the Prosecutor's Office in Kiev:
- the document produced by the firm ‘Ilyashev and Partners’ of 3 September, 2014 and the decision of Investigator Khodakovskiy from the Kiev Prosecutor’s Office, dated 25 September, 2014, are identical. This raises concerns regarding third parties’ influence on the investigator's decision (Art. 343 of the Criminal Code of Ukraine, Art. 40 of the Criminal Procedure Code of Ukraine);
- the GPU gave its consent to the firm ‘Ilyashev and Partners’ to ‘ensure the appropriate representation’ of Ukraine's interests in the French court, while the firm officially provides services to the Kazakh BTA Bank and protects the interests of the Kazakh authorities. At the same time, the GPU replied ‘I have no objections’ to the proposal of engaging foreign lawyers on a gratuitous basis, while such services are to be paid from the state budget, provided that an agreement with the Ministry of Justice has been concluded (Decree of the President of Ukraine of 25 June, 2002, Resolution of the Cabinet of Ministers of Ukraine of 5 August, 2003);
- although the prosecutor’s office opened a criminal case against investigator Melnik for issuance of the ‘permit to appear in court’, the prosecutor's office itself has repeatedly stated that it ‘does not object’ to the issue of the ‘permit’.
Taking into account the illegal cooperation of Ukrainian law enforcement bodies with the Kazakh side and, given numerous statements by international human rights organisations, as well as MEPs and members of PACE regarding the political nature of the case of Ablyazov, the Open Dialog Foundation hereby addresses the Ukrainian authorities with the following recommendations:
To the General Prosecutor’s Office of Ukraine:
1. To carry out an appropriate verification of the published correspondence and bring to justice, in accordance with the law, workers of the MIA and the prosecutor’s office who have violated the rules of criminal law and criminal procedure law.
2. Not only to ensure a thorough investigation into the criminal case against investigator Melnik in connection with the issuance of ‘The permit to appear in court’, but also to verify the published accounts about Melnik’s non-procedural cooperation with the firm ‘Ilyashev and Partners’ during the pre-trial investigation.
3. To issue a legal assessment with regard to the actions of Mr. Khodakovskiy, the investigator of the Kiev prosecutor's office, during the issuance of the decision of 25 September, 2014 which was identical to the decision previously drawn up by a private law firm.
4. To investigate how a private law firm could have obtained a blank form from the Prosecutor's Office of Kiev, which, according to the correspondence, was in the hands of Roman Marchenko.
5. To comment on the information about the informal meetings held with the Kazakh side in 2014, as well as on the agreements reached as a result of these meetings.
6. To respond to the findings of the Central Investigation Department of the Ministry of Internal Affairs regarding violation of Art. 576 of the Criminal Procedure Code, in that the file of the criminal proceedings includes charges which are not mentioned in the request for extradition.
7. Given the revealed violation of the limits of criminal responsibility and the negative impact of the politically motivated case on the reputation of Ukraine, to withdraw the request for the extradition of Mukhtar Ablyazov and his associates (in particular, Roman Solodchenko).
to the Ministry of Justice of Ukraine:
8. Given that the Ministry of Justice ensures that fulfilment of commitments, assumed by Ukraine with regard to the international treaties on legal issues, and taking into account the evidence of the political nature of the case of Ablyazov, to assess, whether the request for his extradition is in line with the international treaties of Ukraine in the field of human rights.
to the State Service for Financial Monitoring:
9. Perform all actions, provided for by law, for the implementation of proper verification of the information on the illicit financing of the firm Winston & Strawn LLP.
Also, we would like to emphasise the need for the prosecutor’s office, the qualification and disciplinary commission of the Bar Association and the National Association of Advocates of Ukraine to verify the compliance of actions of the firm ‘Ilyashev and Partners’ with the Law of Ukraine ‘On the Legal Profession and the Practice of Law’.
We hereby request that the President of Ukraine assess the extent to which the participation of the MIA and the GPU in a political criminal case by means of illegal cooperation with Kazakhstan (which is one of the closest economic and political partners of Russia, the aggressor country) comply with the international obligations assumed by Ukraine.
We hereby call on the French government to take into account the incidents of illegal cooperation between Kazakhstan and Ukraine in the case of Ablyazov, and heed the numerous statements of international, French, Ukrainian and Russian human rights organisations about the inadmissibility of the extradition of the Kazakh oppositionist from France. Poland, Spain, the Czech Republic, Austria and Great Britain have refused to extradite Ablyazov’s associates to Kazakhstan, Russia and Ukraine. In Ukraine and Russia, the life and safety of the opposition politician will be under threat; he may face an unfair trial, ill-treatment, interrogation in the interests of Kazakhstan or even illegal rendition to Kazakhstan.
In Ukraine, Ablyazov will not be ensured fair justice due to the gross interference of the Kazakh authorities in the work of Ukrainian law enforcement agencies. PACE members noted: "The involvement of Ukraine in this case is a transparent legitimation of the regime of Yanukovych, who worked closely with Russia and Kazakhstan." Following the events of Euromaidan, the problem of corruption in the Ukrainian judiciary has only aggravated. The final decision on the extradition case is yet to be issued, and Ukraine has violated its safeguards before, bringing charges against Ablyazov which were not specified in the request for extradition.
Also, the conditions of stay in Ukrainian detention centres and prisons remain unsatisfactory. On 16 March, 2015, the Ombudsman’s Office in Ukraine informed the Open Dialog Foundation that in 2014, the Ombudsman and representatives of society conducted monitoring visits to Ukrainian detention centres and penal colonies. The monitoring identified “systemic violations of the order of detention and punishment, resulting in the cruel or degrading treatment of detainees and prisoners”. The Ombudsman’s Office noted that in the majority of penal institutions, including detention centres, "decent conditions of detention have yet to be created". In particular, Ukrainian law sets the standard living space for persons taken into custody at as little as 2.5 sq. m. The Ombudsman emphasised that this area does not meet European standards, and that it is much smaller than the standard living space for convicted prisoners, provided for under Ukrainian law, which is 4 sq. m.
In the case of his extradition to Russia, the oppositionist Ablyazov will face mortal danger. On 27 February, 2015, in the centre of Moscow, the brutal murder of the critic of the regime, Boris Nemtsov, was carried out. One cannot turn a blind eye to the problem of impunity and the common practice of torture in Russia, or to the involvement of investigators from the ‘Magnitsky list’ in the case of Ablyazov. Following the suspension of any contact with PACE, Russia is threatening to completely withdraw from the Council of Europe, which would further alienate its justice system from those of western countries.
The guarantees of the Russian authorities regarding the ensurance of a fair trial are baseless, which is confirmed not only by a high-profile lawsuit against Nadiya Savchenko, but also Russia’s disrespect for international law in general. Commenting on Russia's involvement in the conflict in eastern Ukraine, on 25 February, 2015, the US Secretary of State John Kerry stated that the Russian authorities "are persistent in distorting reality" and have repeatedly "lied to my face and to other people’s faces about their actions". Following the events of the last few months, the EU and the US has no illusions about any promises made by Russia.
We also suggest that the Interpol General Secretariat and the Ministry of Internal Affairs of Great Britain become familiarised with the incidents which brought about the fabrication of the criminal case against Ablyazov.
All those willing to support our demands are kindly requested to address the following persons and institutions:
- General Prosecutor of Ukraine, Viktor Shokin - 01011, Kiev-11, 13/15 Reznitskaya Street, fax: +38 044 280 26 03;
- Deputy General Prosecutor of Ukraine, David Sakvarelidze - 01011, Kiev, 13/15 Reznitskaya Street, e-mail: [email protected];
- The Prosecutor’s Office of Kiev - 03150, Кiev-150, 45/9 Predslavinskaya Street, fax: +38 044 524 82 90;
- Minister of Internal Affairs, Arsen Avakov – 01024, Kiev, 10 Bogomoltsa, tel.: +38 044 256 03 33;
- Minister of Justice of Ukraine, Pavel Petrenko - 01001, Kiev, 13 Gorodetskogo Street, tel.: +38 044 278 37 23, fax: +38 044 271 17 83, e-mail: [email protected];
- President of Ukraine Petro Poroshenko - 01220, Kiev, 11 Bankova Street, tel.: +38 044 255 73 33;
- President of France President Francois Hollande - 55 Rue du Faubourg Saint-Honoré 75008 Paris, Fax: +33 1 47 42 24 65;
- Marie-Suzanne Le Queau, Director of the Department of Criminal Affairs and Pardons, Ministry of Justice of France - Direction des affaires criminelles et des grâces, Ministère de la Justice 13, place Vendôme75042. Paris cedex 01, e-mail: [email protected];
- Minister of Foreign Affairs of France Lauren Fabius - Paris 37, Quai d’Orsay F - 75351 PARIS, tel.: 33 1 43 17 53 53;
- British Home Secretary Theresa May: 2 Marsham Street, London, SW1P 4DF; 020 7035 4848; [email protected];
- The Eurojustice international network - Prins Clauslaan 16 2595 AJ Den Haag, tel.: +31 (0)70 33 99 887, fax: +31 (0)70 339958, email: [email protected];
- High Representative of the Union for Foreign Affairs and Security Policy Federica Mogherini - 1049 Brussels, Rue de la Loi / Wetstraat 200. Tel.: +32 2 584 11 11; +32 (0) 2 295 71 69;
- Chairman of the European Parliament Committee on Foreign Affairs Elmar Brok - Rue Wiertz 60, 1047 Bruxelles, Belgique. Tel.: +32 2 28 49013 (Брюссель), +33 3 881 76902 (Strasbourg);
- European Union Ombudsperson, Emily O'Reilly - F-67001, Strasbourg, avenue du Président Robert Schuman, 1. Tel.: +33 3 88 17 23 13;
- United Nations High Commissioner for Refugees Antonio Guterres - Case Postale 2500, CH-1211 Genève 2 Dépôt, Suisse. Теl.: +41 22 739 8111, fax: +41 22 739 7377. Application form
- Secretary General of the International Criminal Police Organisation ‘Interpol’, Jurgen Stoke - General Secretariat 200, quai Charles de Gaulle, 69006 Lyon, France. Fax: +33 (0)4 72 44 71 63;