Report: Political persecution of Syrym Shalabayev © mukhtarablyazov.org
Syrym Shalabayev, a relative of the Kazakh opposition politician Mukhtar Ablyazov, requests that Lithuania grants him political asylum and protection against extradition. He was subjected to criminal prosecution in Kazakhstan and Ukraine in the framework of the case of Ablyazov, which is recognised by the international community as politically motivated. The documents, which were given publicity in Europe, confirmed that in the case of Ablyazov and Shalabayev, Kazakhstan produced indictment acts for the Ukrainian investigators; questions for interrogations; gave instructions as to who should be declared wanted, and what ‘results’ should be achieved from the interrogations. By shadowing Syrym Shalabayev’s parents, Kazakh authorities found out his whereabouts, and immediately afterwards, initiated a criminal case.
For Kazakhstan, the persecution of Ablyazov’s relatives is a means of taking revenge against the oppositionist. Two years ago, by providing misinformation, the Kazakh authorities brought about the illegal deportation of Ablyazov’s wife and 6-year-old daughter from Italy to Kazakhstan. It was only due to the persistence of the United Nations, the European Parliament and human rights organisations that the family were able to return to Europe. Now, Kazakhstan is trying to bring about the extradition of Syrym Shalabayev, furnishing Lithuania with the same information that misled Italy two years ago.
Great Britain, the Czech Republic and Ukraine refused to extradite two individuals who are involved in the same criminal case as Shalabayev. In addition, Spain, Italy, the United Kingdom, Poland, Austria, Switzerland, Belgium, the United States and Lithuania have granted asylum or international protection to colleagues and relatives of Ablyazov and denied their extradition to Kazakhstan, Russia or Ukraine.
Kazakh citizen Syrym Shalabayev is the brother of Alma Shalabayeva, the wife of Kazakh opposition politician Mukhtar Ablyazov. Ablyazov is the personal enemy of President Nazarbayev. Since 2003, Syrym Shalabayev has resided outside Kazakhstan. His wife Aigul and 18-year-old daughter, Zhanna, are citizens of the United Kingdom. Syrym Shalabayev was involved in Mukhtar Ablyazov’s business projects outside of Kazakhstan and financed the Kazakh opposition along with him.
2. The political context of the corruption charges
In 2001, the former energy minister Mukhtar Ablyazov became one of the founders of the influential opposition movement ‘Democratic Choice of Kazakhstan’. Soon after, on charges of ‘abuse of power’ he was sent to prison, where he was subjected to torture and battery. Under pressure from the international community, which recognised the judgement as politically motivated, Ablyazov was pardoned in 2003.
In 2005, the Ablyazov became the head of the Board of Directors of BTA Bank, of which he was the majority shareholder. He continued to support and finance the opposition, which led to further conflict with Nazarbayev. According to Ablyazov, he refused to comply with demands to transfer the controlling block of shares in the bank to representatives of the president.
In 2009, BTA was forcibly nationalised. Ablyazov and his associates were accused of financial crimes. Ablyazov left the territory of Kazakhstan. On the request of Kazakhstan, which isn’t party to any extradition treaties with most European countries, Russia and Ukraine have also initiated criminal cases against Ablyazov and his associates.
Prior to the conflict between Nazarbayev and Ablyazov, the state authorities did not report any irregularities on the part of the bank. In 2006 and 2007, the BTA Bank was named ‘the best bank in Central Asia’, according to the international magazine Euromoney, and in 2008, it was ranked 173rd place in the list of the world’s best banks (according to the business magazine The Banker). In January 2009, the International Global Finance magazine awarded BTA the title of ‘The best bank in trade finance in Kazakhstan – 2009’. The forced change of ownership as a result of nationalisation has become the basis for foreign creditors to demand early repayment of all the international liabilities of the bank, which led to the bank defaulting.
Kazakhstan believes that Syrym Shalabayev, in collusion with Mukhtar Ablyazov, has caused damage to BTA Bank in an amount exceeding 489 million dollars. Ukraine accused Shalabayev of embezzling financial means amounting to 7 million dollars. Since 24 April, 2012, he has been wanted by Interpol in connection with a request made by Ukraine.
3. The application for asulum and extradition arrest in Lithuania
In May 2015, Syrym Shalabayev, along with his family, moved to Lithuania due to the poor health condition of Ablyazov’s uncle - Kuanysh Nurgazin. On 12 February, 2014, Lithuania granted asylum and the right to long-term residence to Nurgazin. Shalabayev’s wife and daughter also reside legally in Vilnius.
Shalabayev knew of the threat of the initiation of criminal case against him in Kazakhstan. On 18 May, 2015, he applied for political asylum in Lithuania. On 21 May, 2015, Lithuania granted to Syrym Shalabayev an alien ID and temporary protection for the period of consideration of the asylum application.
On 17 July, 2015, Shalabayev’s elderly father and mother left Kazakhstan in order to visit relatives. They visited Poland and Italy before arriving in Vilnius, where they stayed in the rented apartment of Shalabayev’s wife and daughter. Shalabayev himself lives in a refugee centre, where the rules permit his absence for some time.
On 28 July, 2015, Shalabayev was with his parents in his wife’s rented apartment. On that day, the Kazakh prosecutor's office appealed to their Lithuanian colleagues with a request that they arrest Shalabayev. At the same time, Kazakhstan cited the address of the apartment – the place of the possible whereabouts of Shalabayev. On the request of Kazakhstan, Lithuanian police carried out a search of the apartment and detained Shalabayev. He was ordered to remain in detention for 3 months until the court begins to consider the extradition request of Ukraine and Kazakhstan. The documents from these countries have already arrived, but have not yet been translated.
It is noteworthy that the status of ‘suspect’ was ascribed to Shalabayev in Kazakhstan on 22 July, 2015 - 6 years after the initiation of the criminal case against Ablyazov. Shalabayev was charged with misappropriation of entrusted property, money laundering, leadership of a criminal group and passport forgery. On 22 July, 2015, he was declared wanted by Interpol in Kazakhstan, and two days later, a court in Almaty issued a decision regarding his arrest in absentia.
There is reason to believe that the Kazakh authorities promptly opened a criminal case against Shalabayev immediately after they determined his whereabouts. Kazakh special services where able to track down Shalabayev by shadowing his parents, who had gone to Lithuania.
It is noteworthy that the decision of 24 July, 2015, handed down by the court in Almaty, states that “as a result of criminal acts, S. B. Shalabayev and the other members of the organised criminal group caused damage in the amount of $174,999,911 to BTA Bank”. As soon as three weeks later, on 17 August, 2015, Kazakhstan informed the Lithuanian authorities that Shalabayev had caused damage to BTA Bank totalling $489,399,911. Thus, within just a few days, Kazakhstan ‘increased’ the amount of damages by $300 million.
4. Civil proceedings in a London court
In their documents for Lithuania regarding the case of Shalabayev, the Kazakh prosecutor’s office repeatedly referred to the decisions of the London court on the claims of BTA Bank. Kazakhstan argues that the London court revealed incidents of fraud by Ablyazov and Shalabayev, and, in fact, proved their guilt. However, it should be noted that only civil proceedings, not criminal proceedings, took place in the UK. Decisions on the civil proceedings were adopted automatically without trial and without taking into account the arguments of the defence.
In 2011, Ablyazov was granted political asylum in Great Britain. British police warned him of the threat of his assassination or kidnap for political reasons and informed him that they were unable to provide him with daily protection. Meanwhile, BTA Bank initiated civil suits against Mukhtar Ablyazov in a London court, claiming approximately $4.5 billion. Ablyazov has repeatedly stated that the nationalised BTA Bank is not an independent entity, and that it fulfils the political will of the Kazakh authorities. Evidence, recently published in mass media, has once again confirmed this fact.
In a letter dated 16 August, 2013, one of the leaders of the State Fund ‘Samruk-Kazyna’ JSC, Almat Zhamiyev instructs the managing director of BTA Bank, Pavel Prosyankin to prepare a document in order to consult with the Kazakh government as regards further actions to be undertaken in connection with litigation processes ongoing in the United Kingdom.
The representative of the BTA Bank, Mr. Prosyankin warned a representative of the government that in the UK, the bank presents itself as being independent from the Kazakh authorities: “The preparation of such a document jeopardises the possibility of criminal prosecution of Ablyazov in the UK, as, contrary to the official position of the Bank, it will appear obvious that the bringing of Ablyazov to criminal liability and the work on his extradition are coordinated attempts by the Bank and the government of Kazakhstan. That is, it would constitute factual evidence supporting Ablyazov's claim that the Bank is an instrument of the state in the pursuit of him”.
Lobbyists of BTA Bank and the company Hogan Lovells, hired by Kazakhstan, managed to delay the granting of political asylum to Ablyazov in Great Britain for more than six months. During this time, the London court ruled on the absence of political motivation in the civil suits of BTA Bank.
On 16 February, 2012, Judge Nigel Teare accused Ablyazov of ‘contempt of court’, and, as result, Ablyazov was sentenced to 22 months’ incarceration. Ablyazov was absent from the court hearing during adjudication. On 29 February, 2012, on the motion of the BTA Bank, Judge Teare issued a conditional order forcing Ablyazov to surrender himself to custody and to reveal the worth of his assets. Failure to meet these two requirements, according to the conditional order, has resulted in the deprivation of Ablyazov’s right to a defence in civil lawsuits.
The oppositionist insisted that disclosure of his assets would result in prosecution of his associates by President Nazarbayev. Ablyazov also feared that he would be killed in prison on the orders of President Nazarbayev. Given the tragic example of Alexander Litvinenko, Ablyazov left the territory of the United Kingdom. The recent murder of an opponent of Nazarbayev, Rakhat Aliyev in an Austrian prison suggested that Ablyazov’s fears were not without warrant.
After Ablyazov left the UK, BTA Bank was able to apply for acceptance of judicial decisions in respect of Ablyazov without conducting proceedings on the merits of the case. In November 2012, a British court ordered the collection of 2.1 billion dollars from Ablyazov in favour of BTA Bank. It was a default judgment as the decision was automatically implemented without trial since the defendant was deprived of the right to a defence. Another decision in a civil case to collect from Ablyazov $ 400 million was also handed down without trial, and, accordingly, without taking into consideration the arguments of the defence.
Syrym Shalabayev was also charged with contempt of court for his failure to disclose assets and was sentenced to 18 months’ incarceration. He was absent in England during the period when the decisions were handed down. Judge Briggs only pointed to the likelihood of Shalabayev having committed criminal acts: “He may be supposed to be likely to have disclosable information of the highest value to the Bank in tracing its property."
Based on the arguments of the prosecution, on 16 February, 2012, Judge Nigel Teare stated that the real owner of the company was not Shalabayev, but Ablyazov. According to the judge, Shalabayev carried out transactions on behalf of Ablyazov and produced documents retroactively.
In its statement to the Lithuanian authorities, the Kazakh prosecutor’s office claimed that the decision of Judge Teare of 19 March, 2013, stated that “S.B. Shalabayev played a central role in the criminal scheme”. But, in fact, the court stated that Shalabayev and Udovenko were ‘strongly engaged’ in the Ablyazov’s company, and pointed to the fact that these companies are owned or controlled by Ablyazov.
5. Fabrication of the case againts Ablyazov and Shalabayeva in Ukraine
In 2014-2015, correspondence published in the media, widely reverberated across European states [Sources where the correspondence was published: trust.ua - part 1, part 2, part 3, Facebook]. It was confirmed that representatives of Kazakhstan had prepared the documents for the Ukrainian and Russian investigators on the case of Mukhtar Ablyazov and his associates. The Kazakh authorities themselves questioned the defendants in the case, threatened them and forced them to sign testimonies. The coordination of the investigation on the case of Ablyazov was carried out at the level of senior officials of Kazakhstan, Russia and Ukraine.
Kazakhstan managed the actions of Ukrainian investigators through a private law firm ‘Ilyashev and Partners’, which officially represents the interests of the Kazakh BTA Bank. An employee of ‘Ilyashev and Partners’, Arsenyi Gerasymiv produced drafts of formal written charges and questions to be asked during interrogations for the investigator of the Ukrainian Ministry of Internal Affairs, Maksim Melnik. The investigator signed and used these documents. He also received instructions as to which of Ablyazov’s associates should be declared wanted.
On 20 April, 2012, an employee of ‘Ilyashev and Partners’ Arsenyi Gerasymiv suggested that the investigator Maksim Melnik “add to the ruling on Shalabayev, Kononko’s question and send it to England. I can arrange everything, if you send me a ruling on Shalabayev in electronic form”.
On 23 April, 2012, Arsenyi Gerasymiv sent to the investigator, a finalised decision to institute criminal proceedings against Syrym Shalabayev. The decision read that Mukhtar Ablyazov, Igor Kononko, Syrym Shalabayev and Aleksander Udovenko, "abusing their official position," committed "embezzlement of the funds of the BTA Bank". The following day, the investigation declared Shalabayev wanted by Interpol.
On 2 August, 2012, Ukrainian investigator Maksim Melnik received instructions from the Kazakh side (the firm ‘Ilyashev and Partners’) with regard to the interrogation of a citizen of Kazakhstan Rifat Rizoyev: “The interrogation should prove (that): 1. All offshore companies were established by Ablyazov – he is the mastermind; 2. Ablyazov is the genuine beneficiary of these companies; 3. Ablyazov’s people managed the offshore companies (namely: Udovenko, Kononko, Paraskevich, Shalabayev, Khazhayev); 4. The purpose of the establishment of the offshore companies was to steal money from the bank; 5. The projects were cheaper. With their funding, the money was embezzled”.
On 9 April, 2014, the High Court in London refused to extradite Igor Kononko, who is involved in the same criminal case as Shalabayev, to Ukraine. The court expressed its concern that the Ukrainian investigator, Mr. Melnik did not attend the hearing: “In any case, the reason why Mr. Melnik was not summoned to testify, may be obvious from a sequence of e-mails which show that he was presented with documents for signing, and he seems to have never participated in deciding whether the court proceedings were legal, whether the case should be initiated, or what form it should take...”
The criminal case against Syrym Shalabayev was the same case in which Tatiana Paraskevich was involved. The Czech Republic granted her asylum and refused to extradite her to Ukraine.
Incidents of abuse, confirmed by the published correspondence, received wide publicity. Criminal proceedings were instituted against two Ukrainian investigators who had worked on Ablyazov’s case. On 30 July, 2014, a criminal case was initiated against Maksim Melnik, an investigator of the Ministry of Internal Affairs, and on 23 July, 2015 - against an investigator of the Kiev Prosecutor’s Office, Sergey Khodakovsky. However, the Ukrainian prosecutor’s office showed no interest in the expeditious and objective investigation of the aforementioned incidents of corruption.
It is noteworthy that Kazakhstan and Ukraine issued extradition requests regarding Shalabayev almost simultaneously (on 17 August, 2015 and on 19 August, 2015, respectively). Similarly, requests were synchronously sent for the extradition of Ablyazov (on 9 August, 2013 from Ukraine and on 15 August, 2013, from Kazakhstan). Therefore, in both cases, the requests could have been prepared by the Kazakh side.
Ukraine has given a guarantee to Lithuania that Shalabayev would be held criminally liable "only for the offence for which extradition is requested." The same guarantee was given to France in the case of Ablyazov. However, with regard to Ablyazov, Ukraine presented charges which were not specified in the extradition request.
6. Persecution of relatives as a means of retaliation againts the political opponent
“In pursuit of their opponents, the authorities in Kazakhstan do not limit themselves to minor means. If someone falls foul of President Nazarbayev, not only is he subjected to punishment, but his family also, and the punishment is cruel”- Mark Feigin, the counsel of Mukhtar Ablyazov and Ukrainian political prisoner in Russia, Nadiya Savchenko, stated.
Due to the active participation in the campaign to protect her husband, Alma Shalabayeva received threats from the Kazakh authorities that relatives of the oppositionist would also be prosecuted. Another brother of Alma Shalabayev - Salim - was under constant surveillance in Latvia, Switzerland and the United Kingdom (of which he was warned by the British police).
Along with documents regarding Syrym Shalabayev, Kazakhstan sent to the Lithuanian authorities, information that Alma Shalabayeva allegedly holds a fake passport of a citizen of the Central African Republic. Two years prior, on this basis, the Kazakh authorities brought about the illegal detention and deportation to Kazakhstan of Alma Shalabayeva and her 6-year-old daughter Alua Ablyazova, carried out by the Italian authorities. These events resulted in an international scandal and provoked a government crisis in Italy.
On the request of Kazakhstan, Alma Shalabayeva was arrested on the night of 29 May, 2013 in the suburbs of Rome. The next day, i.e. on 30 May, 2013, Kazakhstan initiated a criminal case against her on charges of forgery of a Kazakh passport. On 31 May, 2013, Alma Shalabayeva and her daughter were deported to Kazakhstan. Due to the intervention of human rights organisations, the UN and the European Parliament, on 24 December, 2013, Kazakh authorities allowed Alma Shalabayeva and her daughter to leave the territory of Kazakhstan. Italy has granted them refugee status.
On 20 June, 2013, the Ministry of Justice of the Central African Republic officially confirmed that Alma Shalabayeva holds a legal diplomatic passport, (№ 06FB04081) in the name of Alma Ayan. However, a year later, on 11 March, 2014, the Embassy of Kazakhstan requested that a representative of France’s Foreign Ministry Francois Revardeaux send a request to the CAR for the cancellation of the allegedly illegal passport. The request was sent on the same day on behalf of Laurent Fabius, and, in response, CAR reconfirmed the legality of the passport.
Thus, after two assurances of the Central African Republic regarding the legality of the passport of Alma Shalabayeva, Kazakhstan has not stopped, and has provided the same false information to the authorities of Lithuania. It is noteworthy that in the case of Syrym Shalabayev, Kazakhstan acts in accordance with a developed strategy: immediately after discovering a person’s whereabouts, a criminal case is initiated against them and charges of forging a passport are presented.
Confirmation of the political nature of the case is the fact that Kazakhstan accused Ablyazov of "inciting social hatred", "conspiring to commit an act of terrorism" and "a crime against the peace and security of mankind". And Russian investigative bodies state that the proceeds from the legalisation of property, "acquired for the means, stolen by M.K. Ablyazov", were used in order to "change the constitutional order" and "destabilise the political situation" in Kazakhstan.
In the hunt for political opponents, Kazakhstan abuses the law enforcement systems of European states. Ablyazov’s security chief, Alexander Pavlov, was charged with terrorism, which delayed his obtainment of political asylum in Spain. In the case of Syrym Shalabayev, Kazakhstan presented charges of legalisation of property. According to the Criminal Code of Lithuania, if a person is charged with legalisation of property, the consideration of his asylum cannot suspend the extradition.
7. Conclusions and recommendations
Lithuania, which has granted refuge to Ablyazov’s uncle, should not allow the extradition to Kazakhstan of another relative of the oppositionist - Syrym Shalabayev. Kazakhstan carries out the process of preserving an authoritarian regime: political opponents of President Nazarbayev are either in prison or in exile, independent media are banned, activists are intimidated and any civil activity can end in criminal liability. Kazakhstan ignores the repeated statements by the UN and human rights organisations about the systemic problem of torture and unfair trials.
Also, extradition to Ukraine, which does not provide guarantees of adequate conditions of stay in custody and protection from torture, is unacceptable. The corrupt justice system in Ukraine strongly resists any attempts at reform. In Ukraine, Shalabayev will not be ensured a fair trial, as in this case, Ukrainian investigative bodies are dependent; they fulfil the political interests of the Kazakh side. In Ukraine, Shalabayev may be interrogated in line with the interests of Kazakhstan or be rendered to Kazakhstan.
Human rights organisations, approx. 50 members of the European Parliament and the PACE have pointed to the political context of the case of Ablyazov for the past two years. For Kazakhstan, Shalabayev is an important source of information on Ablyazov’s opposition activities. The European Convention on Extradition and the UN Convention against Torture prohibits the extradition of a person in the event that the charges faced by that person have a political context or there is a threat of torture. The Open Dialog Foundation hereby urges the authorities of the Republic of Lithuania to accede to the decisions of other EU countries with regard to the associates of Mukhtar Ablyazov and grant asylum to Syrym Shalabayev, refusing to extradite him to Ukraine and Kazakhstan.
All those willing to support our demands are welcome to send their appeals to the following persons and institutions:
- President of the Republic of Lithuania Dalia Grybauskaitė - S. Daukanto a. 3, LT-01122 Vilnius; phone: +370 706 64 154; [email protected];
- Oskaras Jusys, Director of the UN, International Organizations and HR Department, Ministry of Foreign Affairs of the Republic of Lithuania - J.Tumo-Vaižganto Str. 2, LT-01511 Vilnius; phone: +370 706 52444, e-mail [email protected];
- Ugne Matuleviciene, Head of division for Central Asia and South Caucasus, Ministry of Foreign Affairs of the Republic of Lithuania - J.Tumo-Vaižganto Str. 2, LT-01511 Vilnius; phone: +370 706 52444, e-mail: [email protected];
- Jolanta Verbuvienė, Migrations Department, Ministry of Internal Affairs of the Republic of Lithuania - Šventaragio g. 2, LT-01510 Vilnius; phone: +370 (5) 219 3400, e-mail: [email protected];
- Rūta Gerikienė, Chief specialist of the Asylum Affairs Division of the Migration Department, Ministry of Internal Affairs of the Republic of Lithuania - Šventaragio g. 2, LT-01510 Vilnius; phone: +370 5 219 8458, e-mail: [email protected];
- Parliament of the Republic of Lithuania: Gedimino ave. 53, Vilnius, Lithuania; phone: +370 5 2396060; [email protected];
- EU High Representative for Foreign Affairs and Security Policy, Federico Mogherini - 1049 Brussels, Rue de la Loi / Wetstraat 200, phone: +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, тел.: +32 2 28 49013 (Brussels), +33 3 881 76902 (Strasbourg);
- United Nations High Commissioner for Refugees Antonio Guterres - Case Postale 2500, CH-1211 Genève 2 Dépôt, Suisse, phone: +41 22 739 8111, fax: +41 22 739 7377. Contact form: http://www.unhcr.org/cgi-bin/texis/vtx/contact_hq;
- General Secretary 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.