Report: The role of infamous prosecutor Vladimir Guzyr in the case of Syrym Shalabayev ©

1. Introduction

Syrym Shalabayev is a relative of the Kazakh opposition politician and political refugee, Mukhtar Ablyazov. Shalabayev has been subjected to prosecution in Kazakhstan and Ukraine as part of the case against Ablyazov. Amnesty International, Human Rights Watch, the International Federation for Human Rights, the French League of Human Rights, the Human Rights Foundation, the Russian and Ukrainian Helsinki Union and other human rights organisations, as well as more than 50 MEPs have highlighted the political context of Ablyazov’s prosecution.

Ablyazov’s colleagues and relatives have been granted asylum in EU countries. Syrym Shalabayev has also been granted political asylum in Lithuania. Human rights organisations have noted the political context of thepersecution of Syrym Shalabayev carried out aspart of the case against opposition politician Mukhtar Ablyazov. Lithuania is considering Kazakhstan and Ukraine’s requests for the extradition of Syrym Shalabayev.

At the request of Kazakhstan, which hasn’t concluded any extradition treaties with the majority of European countries, Russia and Ukraine have initiated criminal cases against Ablyazov and his associates concerning charges of ‘embezzlement of funds of BTA Bank’. Documents published in the media confirmed that representatives of Kazakhstan prepared documents and gave instructions to Russian and Ukrainian investigators. In particular, evidence relating to Kazakhstan’s illegal influence on the Ukrainian investigative bodies in the case of Shalabayev wasmadepublic. The details of the case against Ablyazov and Shalabayev, as well as the publicised facts confirming the fabrication of the case can be found in previous reports produced by the Open Dialog Foundation.

This report presents details of the preparation of the Ukrainian request for the extradition of Shalabayev. The reason for this request was a letter written by the infamous prosecutor Vladimir Guzyr whom journalists and social activists caught red-handed trying to cover-up corruption in the General Prosecutor’s Office. Other high-profile political cases involving Prosecutor Guzyr also feature. The report also quotes the statements of public organisations and diplomats on the sabotage of anti-corruption reform in law enforcement bodies in Ukraine.

2. Vitaliy Kasko, who signed the extradition request, stepped down due to systemic corruption in the Ukrainian Prosecutor's Office

Vitaliy Kasko was Deputy General Prosecutor and was engaged, among other things, in matters of international cooperation. According to him, verification of the reasons for the request for extradition is beyond the competence of the unit for international legal cooperation. Therefore, Kasko delegated to another unit of the prosecutor's office, the task of verifying the validity of the request for the extradition of Shalabayev (Appendix 2).

In response, on 1 July, 2015, Vladimir Guzyr (the then Deputy General Prosecutor) in a letter, informed Vitaliy Kasko of the ‘conclusion’, according to which: ‘during the study of the criminal case, no violations of the Criminal Procedure Code of Ukraine have been identified (…) and the request for extradition of S.B. Shalabayev is lawful and justified’ (Appendix 3).Subsequently, on 19 August, 2015, Vitaliy Kasko signed a request addressed to the Lithuanian authorities for the extradition of Syrym Shalabayev.

Guzyr’s letter, which became the basis for the request for Shalabayev’s extradition, was published on 15 February, 2016, by Kasko himself in response to an inquiry from MP Yegor Sobolev (Appendix 1). On the very same day, Vitaliy Kasko resigned from his post as Deputy General Prosecutor, stating: ‘It is not justice and the law that prevails here, but arbitrariness and lawlessness (..). Under the guise of a supposedly reformed body, all the same political guardianship, direct and absolute pressure on investigators and prosecutors, intentional professional degradation, inaction and impunity are lurking. With its present management, the law enforcement agency ... has ultimately become a tool for political intimidation and a source of income. I cannot, and I do not want to be part of a body, which, instead of upholding the law, commits and tolerates total lawlessness’.

Kasko was one of those on whom the EU pinned its hopes in the fight against corruption in the Ukrainian Prosecutor's Office.

3. Vladimir Guzyr prevented Vitaliy Kasko and his subordinates from investigating corruption in the Prosecutor's Office

Vitaliy Kasko was in charge of the investigation into the high-profile case of the so-called ‘diamond’ prosecutors. On 5 July, 2015, the deputy head of the Investigative Department of the GPU, Vladimir Shapakin and deputy prosecutor of Kiev Province, Aleksandr Korniyets were arrested on suspicion of bribery. During a search of their homes, approx. 500,000 dollars, diamonds and securities were discovered. "When the searches were carried out, Shokin’s first deputy, Mr. Guzyr, rushed there. And what did he do? He grabbed the investigator's license and tried to tear it, but since the license was in a leather cover, he kept trying to tear it, but could not damage it. Eventually, Guzyr threatened to do him in and dismiss him from office. (...) It is no secret that these people, who were caught red-handed, were close to Shokin "- that is how famous investigative journalist and MP, Sergey Leshchenko, described the details of the search.

On 14 July, 2015, it transpired that General Prosecutor Viktor Shokin and his deputy Vladimir Guzyr have exerted pressure on Vitaliy Kasko’s subordinates who are investigating the case of the ‘diamond’ prosecutors. In particular, criminal cases were initiated against Kasko’s subordinates and searches of their offices were ordered; they were also threatened with dismissal from work.

Kasko himself commented on the situation as follows: “Pressure is being exerted on the investigators and prosecutors in the proceedings who discovered and disclosed the crime of which high-ranking prosecutors are suspected. They are using pressure, from official inspections to criminal proceedings. According to my information, the initiators (of the pressure) were Guzyr and Stolyarchuk". Kasko also stressed that Guzyr has not dismissed, but only ‘temporarily suspended’ the detained prosecutors: "What's happening right now does not reflect European norms. And still, we continue to proclaim that we are building a new European public prosecutor's office and a new State”.

On 15 July, 2015, the parliamentary committee on combating corruption demanded from the General Prosecutor that Vladimir Guzyr and Yuriy Stolyarchuk be dismissed. The well-known public organisation “The Centre for Combatting Corruption’ and the public movement ‘Automaidan’ also demanded that Guzyr be dismissed as he "prevents an impartial investigation into the criminal case against bribe-taking prosecutors, exerts pressure on the investigators and his name is mentioned in anti-corruption investigative journalism". TheUkrainian political magazine ‘Novoye Vremya’ [‘New Times’] added Guzyr’s name to the list of the top-ten officials and politicians, "whose activities should be watched closely by law enforcement authorities”.

Due to pressure from the civil society, on 28 July, 2015, Guzyr resigned.

4. Other scandalous cases in which Guzyr was involved

Prosecutor Guzyr participated in high-profile political cases, in which, according to the evidence collected by reporters, the prosecutor’s office fulfilled political orders. Some cases have attracted condemnation from human rights organisations and the European Court of Human Rights.

A) Obstruction of the investigation into the case against the companies of Eduard Stavitskiy, a representative of the Yanukovich regime

Vladimir Guzyr demanded that the investigation against the group of companies BRSM, which is associated with the former Energy Minister Eduard Stavitskiy (whose name appears on the international wanted list), be terminated. BRSM faced charges of illegally purchasing oil products, illicit refining of petroleum and tax evasion.

On 8 June, 2015, due to impurities in petroleum, at the BRSM tank farm in Kiev Province, a massive fire broke out, killing 5 people. On the same day, Guzyr stated that the Ministry of Internal Affairs had ‘initiated a criminal case against BRSM in the absence of any grounds’ and that it ‘interferes in economic activity’. It also became known that Vitaliy Khrebtak, Guzyr’s subordinate, demanded from the Ministry of Interior that they provide information about the investigators engaged in the BRSM case.

B) The case against Boris Feldman

Vladimir Guzyr was the prosecutor in the case against Boris Feldman, the former vice-president of Slavyanskiy bank. The case was initiated in 2000 and has attracted widespread publicity due to the publication in the media of materials which report on a possible agreement between President Leonid Kuchma and Nikolay Azarov regarding the exertion of pressure on Feldman and the bank’s liquidation. At the trial, Guzyr stated: "I want to draw your attention to the fact that the calls and threats made by the defendant, Feldman, and his counsel, Fedur, regarding the filing of an appeal with the European Court are generally offensive and inappropriate for a decent society." 

Feldman was sentenced to a prison term, having been found guilty of embezzlement. The Kharkov Human Rights Group and the Ukrainian Helsinki Human Rights Union have cited serious violations of the principles of a fair trial. The US Department of State pointed to the case of Feldman as another example of the arbitrary deprivation of freedom in Ukraine. The European Court of Human Rights found that, in this case, Ukraine had violated both the right to liberty and the right to a fair trial.

C) The case against Yulia Tymoshenko (2001)

In 2001, the General Prosecutor’s Office of Ukraine accused the politician Yulia Tymoshenko of embezzlement, smuggling and the forgery of documents. Prosecutor Guzyr who was involved in the case of Tymoshenko, stated that a number of publications in the media about the political motivation of the criminal case, constituted "exertion of pressure on the investigative bodies”. As a result, the court closed the criminal case against Tymoshenko and recognised the charges, brought by the prosecutor’s office, as illegal.

5. The publicised facts confirming the fabrication of the case of Syrym Shalabayev in Ukraine

On 16 November, 2015, human rights organisations the Centre for Civil Liberties, Human Rights Information Centre, the Open Dialog Foundation and the Kazakhstan International Bureau for Human Rights and Rule of Law, noted that "the true mastermind behind Ukraine’s demand to extradite Syrym Shalabayev is the Kazakh authorities".

In 2014, on the portal, unknown persons posted links to stolen correspondence of Kazakh senior officials. Also, the Ukrainian news portal published excerpts from correspondence of Ukrainian investigators and representatives of Kazakhstan's BTA Bank. The published correspondence was referred to by numerous European media outlets.

The law firm Ilyashev and Partners which represents the interests of Kazakhstan's BTA Bank in Ukraine, asserts that the stolen correspondence has been altered. However, the authenticity of the correspondence has been confirmed thanks to official information as well testimonies given in US courts by representatives of the Kazakh government who tried to block the dissemination of these documents. On 12 March, 2015, Kazakhstan filed a civil lawsuit in the U.S. District Court for the Southern District of New York against Doe defendants, who are defined in the complaint as ‘those who illegally hacked the government’s email and other accounts’.

The lawsuit claimed that the Kazakhstan government learned on 15 January, 2015, of the theft of correspondence and confidential documents from the Gmail account of Marat Beketayev (until December, 2015 he served as the Executive Secretary of the Ministry of Justice, and at the moment, he holds the post of Deputy Head of the Presidential Administration),Andrey Kravchenko (Deputy General Prosecutor) and other state officials. Kazakhstan initiated a civil case in order to identify the hackers involved in the theft, as this, according to Marat Beketayev, has caused ‘irreparable damage’ to the government of Kazakhstan.

According to the published correspondence cited by the European media: through a law firm, Ilyashev and Partners, Kazakhstan prepared for the Interior Ministry investigator Maksim Melnik, indictment acts and other procedural documents pertaining to Ablyazov, Shalabayev and other defendants in the case. These facts were addressed by a British court in a ruling to deny Ukraine’s extradition request for Igor Kononko, who is implicated in the same case as Shalabayev.

Following public pressure, on 30 July, 2014, a criminal case was initiated against Investigator Melnik relating to charges of abuse of power. Investigator of the Prosecutor’s Office of Kiev, Sergey Khodakivskiy, has repeatedly made attempts to close the case against Melnik. He may have been influenced by representatives of the Kazakh side (according to the published correspondence). The Open Dialog Foundation, by legal process, brought about the initiation of a criminal case against Khodakovskiy in relation to charges of abuse of power. Still, on 30 September, 2015, the Kiev Prosecutor’s Office closed the case against its own investigator, failing to notify the applicant – the Open Dialog Foundation, of the fact. The GPU ignored the comments about materials disclosed in the media which may confirm that the investigator committed the alleged acts of corruption.

Citing the failure of the reform of the prosecutor's office and the courts, human rights organisations have stated that the prosecution and the court trial on the case of Shalabayev in Ukraine will be biased and politically motivated’.

6. Sabotaging the reform of the Prosecutor’s Office and the lack of guarantees of fair justice in Ukraine

On 26 January, 2016, Executive Director of Transparency International in Ukraine, Alexey Khmara stated that the judicial system is fully dependent on, and is linked to, the regime and corrupt people", "If all these people were in similar suits, I would hardly determine, who of them is a bandit, who is a judge and who is a prosecutor. These are identical people”.

US Ambassador Geoffrey R. Pyatt stated that "rather than (…) working to root out corruption, corrupt actors within the Prosecutor General’s office are making things worse by openly and aggressively undermining reform. On 15 February, 2016, activists of the ‘Resuscitation Package of Reforms’, enunciated: Although two years have 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”.

No replacement of personnel has been carried out in the bodies of the prosecutor’s office. No external candidate has been appointed head of a local prosecutor's office. General Prosecutor Shokin appointed to these positions, 84% ​​of the former heads. Transparency International stated that General Prosecutor Shokin "stubbornly refuses to implement any reforms both inside the Prosecutor’s Office and in the sphere of fighting corruption".

On 16 February, 2016, President Petro Poroshenko urged the General Prosecutor to resign due to the fact that the prosecution had “lost the confidence of society”. At the same time, the President, who had actually nominated Shokin for the post of General Prosecutor, stated that Shokin allegedly "introduced reforms which the GPU had resisted for decades". On 29 March, 2016, parliament is to consider Shokin’s resignation.

7. Conclusions and recommendations

We hereby welcome Lithuania’s decision to grant Syrym Shalabayev political asylum so as to provide her with protection from Kazakhstan. Thus, Lithuania joined other Member States which provided refuge to Mukhtar Ablyazov’s colleagues and relatives. We would also like to note that the Czech Republic and Great Britain refused to extradite to Ukraine, Tatiana Paraskevich, Igor Kononko and Roman Solodchenko, who are implicated in the same case as Syrym Shalabayev. Human rights organisations and MEPs have repeatedly made statements regarding the political context of Ablyazov and Shalabayev’s cases.

We hereby call on the Lithuanian authorities to take into account the dependence of the Ukrainian investigative bodies on Kazakhstan in the case of Shalabayev; the publicised facts confirming the fabrication of the cases against Ablyazov, his relatives and associates; the fact of the failure of anti-corruption reforms in the prosecutor's office; as well as heed the repeated statements by the Ombudsman about inadequate conditions of detention and exertion of torture in Ukrainian prisons. Today, Ukraine is not able to uphold guarantees of fair investigation and trial, as well as proper treatment in prison. Therefore, we hereby urge the authorities of the Republic of Lithuania to refuse to extradite Syrym Shalabayev.