Respublika: Conspiracy of Ukrainian Prosecutors with Astana
© 20.06.2014

On June 3, 2014, two court sessions concerning Mukhtar Ablyazov, the most famous Kazakh opposition politician and businessman, were held. The first of them received wide publicity in the press, while the second one passed by unnoticed. And that’s too bad.

Ironically, both court sessions related to the same issue — the right of lawyers from Winston & Strawn LLP company to take part in the hearing of the case of Ablyazov’s extradition from France. The first session was held in Lyon, the second one in Kiev. They resulted in two mutually exclusive decisions.

Let us go into detail.

The Court of Appeal of Lyon decided that the representatives of Ukraine and Russia would be admitted to Ablyazov’s extradition trial planned for this autumn, but they would not have access to the investigation record nor the right to add anything to it.

While Russia will be represented at the Lyon hearing by an official from the Office of the Prosecutor General of the Russian Federation, things are different for Ukraine. As the Office of the Prosecutor General of Ukraine did not object to the lawyers from Winston & Strawn LLP representing the Ukrainian authorities in Lyon, this private company was admitted to participate in the hearing.

We have already told our readers how and why this illegal and anti-constitutional decision was adopted for the first time. In particular, we gave information about Kazakhstan Prime Minister’s contact with Sergey Pashinskiy, the acting Head of Administration of the President of Ukraine, who lobbied for Astana’s interests. Pashinskiy has already been removed from his post.

Let us briefly remind you what the issue was about. In December of 2013, during the preparation of Mukhtar Ablyazov’s extradition trial in the French city of Aix-en-Provence, new participants appeared ; these were French lawyers, Gilles Bigot and Guillaume-Denis Faure who claimed to be representing the interests of Ukraine in the current trial. To demonstrate their credentials, they submitted a document entitled ‘‘Permission to Appear in Court’’, signed by Maksim Melnik, a Ukrainian investigator.

With this paper Melnik authorised the W&S law firm to take part in all the hearings of the Court of Appeal of Aix-en-Provence concerning the extradition request for Mukhtar Ablyazov. Via the Ukrainian embassy in France, the permission was passed to the French Ministry of Justice, and everything appeared respectable and convincing, but for one ‘‘trifling detail’’ — according to Ukrainian legislation, this document had no legal value.

The thing is, according to Article 26 of the Ukrainian Act ‘‘On Prosecution’’, the Office of the Prosecutor General of Ukraine adopts decisions on all issues provided for by interstate agreements as part of mutual legal assistance, including extradition issues. Under Article 52 of the same Act, the one and only source of financing for the prosecuting agencies is the State Budget of Ukraine.

So, according to the aforementioned legislation, provision of legal services to the State of Ukraine can only become possible after the following actions:
- The Office of the Prosecutor General of Ukraine has to address to the Ministry of Justice of Ukraine regarding the necessity of provision of legal services by a private law company;
- The Ministry of Justice of Ukraine has to determine the availability of funds allocated for these purposes in the state budget;
- The Ministry of Justice of Ukraine has to determine the total expenditure for such services;
- The Ministry of Justice of Ukraine and the law company have to sign an agreement of provision of services;
- The Office of the Prosecutor General of Ukraine has to send written notice to the court of the other state informing that this law company has been authorised to represent the State of Ukraine in the court trial.

However, what happened in practice was completely different. In its letter sent to the Office of the Prosecutor General of Ukraine, the company ‘‘Ilyashev and Partners’’, hired by the Kazakhstan’s BTA Bank, requested the participation of foreign (i.e. French) lawyers in Ablyazov’s case. At the same time, ‘‘Ilyashev and Partners’’ offered the Office of the Prosecutor General a plan according to which the French lawyers would represent the State of Ukraine without their services being paid for from the state budget of Ukraine. It is obvious that such a plan was inadmissible as such.

And now, the second trial: the Pechersky District Court of Kiev declared that the actions of the invetigator Maksim Melnik — who had permitted private lawyers representing BTA Bank in France to appear in court — were illegal, and the permission itself was null and void.

Here is a more detailed description: the court decided to ‘‘cancel the ‘Permission to Appear in Court’ of 18.11.2013 No.12/2—7446, given to the law firm ‘W & S SELARL’ acting through its partners, maître Gilles Bigot and maître Guillaume-Denis Faure, Lawyers of Paris Bar Association, signed and sent via diplomatic channels through the Embassy of Ukraine in France to the Ministry of Justice of France by Maksim Melnik, an investigator of the Bureau of Criminal Investigation of the City Department of Internal Affairs in the city of Kiev, as part of the pre-trial investigation of the criminal case No. 12012110000000147’’.

As the the Appeals Chamber of the Lyon court ruled to admit the private lawyers on the basis of this ‘permission’ given by the investigator, Maksim Melnyk on 18.11.2013, it means that two mutually exclusive decisions were adopted in two different courts within the same day. And if one of these decisions is not changed, the decision of the trial-to-be on Mukhtar Ablyazov’s extradition will automatically become illegal.

Prosecutors from the Prosecutor’s Office of Kiev and from the Office of the Prosecutor General of Ukraine came to the trial in order to represent the interests of the Ukrainian side and to support the position of rejecting the appeal submitted by Ablyazov’s defenders. Yet investigator Maksim Melnik, whose document was appealed, did not turn up to court — was it because of shame?

However, the big scandal that started after the correspondence between the Ukrainian investigator and the lawyers working for the Kazakh BTA Bank had been published — the scandal that spread far beyond the borders of the Ukrainian republic — did not become a lesson for the new Ukrainian authorities.

It has recently become known that the Kazakh BTA Bank (acting via the lawyer from ‘‘Ilyashev and Partners’’) and the prosecutor’s office submitted a protest against the Kiev court’s decision. Apparently, Karim Masimov (who was the very person to have replaced Nazarbayev at the inauguration ceremony of the new head of Ukraine), again managed to make some arrangements regarding the case of Mukhtar Ablyazov during bilateral meetings in Kiev, including those with acting Prime Minister Arseniy Yatsenyuk.
It seems that the new Ukrainian authorities are only capable of fighting their own dissidents and insurgents and confronting Russia, Kremlin and Vladimir Putin. As for the pressure coming from other CIS states, Kazakhstan in particular, they turned out to be quite amenable to it.

This leaves us with two questions: firstly, why are the new Ukrainian authorities so eager to meet the wishes of Akorda concerning the most important and dangerous political opponent of Nursultan Nazarbayev, and, secondly, why do they take the liberty of defying the Constitution and the laws of Ukraine — and, moreover, do this for the benefit of an authoritarian ruler, an ally of Vladimir Putin.