There has been a lot of buzzing going on in the web about the high-profile case of Mukhtar Ablyazov, a former Kazakh Minister of Energy, Industry and Trade and ex-Chairman of BTA Bank, the country’s biggest lender. Some call him an opponent of the long-time Kazakh President Nursultan Nazarbayev, others dub him a ‘fugitive fraudster and oligarch’. While his extradition was heard by the French courts, he also earned a nickname of ‘expert fugitive’ (l’expert de la fuite) from the French press. This is why we set out on another journalistic investigation.
The fraud case of Mukhtar Ablyazov who is tried on charges of eye-watering $6 billion fraud is one of the largest cases not for the English courts only. For courts in Ukraine, the case is the largest one since independence.
The victim, BTA Bank, has made considerable progress in recovering its money and assets. The High Court of Justice of England and Wales whose impartiality is clearly beyond any doubt has found that he was a fraudster and ordered him to pay over $4 billion in damages to the Bank. One more detail attracting our attention is that Ablyazov went on the run for more than a year to dodge a 22-month sentence imposed by a British judge for contempt of court for forgery and perjury. The forgery of court submissions that became a routine practice for Ablyazov’s team is precisely what I am going to discuss below.
With billions of dollars at stake, there is no surprise that the most sophisticated methods are used to frustrate justice. As this case has shown, the end always justifies the means for Mukhtar Ablyazov. With the values of fair trial, justice and the rule of law set at nought, Mukhtar Ablyazov is pursuing the sole purpose of avoiding punishment for the crimes he had committed and continues, from behind the bars now, to coordinate fraudulent scenarios, defying the fundamental principles of the democratic society and resorting to another lie and falsification of evidence.
The first thing we have learned was that Ablyazov is facing criminal charges in a number of jurisdictions, including Kazakhstan, Ukraine, Russia, Latvia and Kyrgyzstan. As follows from the files of Ukrainian case, Ablyazov (who was the Chairman of the Board of Directors at BTA between 2008 to February 2009) and his nine accomplices were convicted of conspiring to siphon money from BTA and to defraud the Bank of the controlling stake in its Ukrainian subsidiary, acting by abuse of office and under the canopy of usual business in Ukraine. All of them are charged on a row of counts of financial crime – forgery, theft, fraud and other. Defendants appealed against the launch of criminal proceedings but the judges of trial and appellate courts dismissed the claims ruling that BTA could continue with the lawsuit.
Stepping aside from the subject matter of investigation, we should note that Ablyazov is pursuing his stance on all battlefronts and spares no expense on legal aid. His counsel have challenged many pleadings and submissions of Ukraine’s Interior Ministry of and the General Prosecutor’s Office. So, for example, recently Ablyazov decided to challenge the lawfulness of the acts of Ukrainian authorities authorizing French lawyers to appear in court and represent the interests of the State of Ukraine. The purpose of this attack was to deprive the state of its capacity to act in the French proceedings and to defend its stance with the help of the French lawyers. However, this time Ukrainian courts did not agree with Ablyazov’s arguments. Although initially overturned by a district court, the mandate was upheld by Kyiv Court of Appeal ruling that the acts of the General Prosecutor of Ukraine, the Public Prosecutor for Kiev and the police investigator were in compliance with the law (see the judgment of Kyiv Court of Appeal of June 19, 2014 enclosed as 01_CourtAppeal_Decision_2014-06-19_Vers_Ukr.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x).
For those who may suspect political complexion of Ablyazov’s persecution in Ukraine due to the friendly ties between Ukraine and Kazakhstan, it will be useful to know that the criminal case against Ablyazov was instituted under President Viktor Yuschenko and continued under President Yanukovych and the current President, Petro Poroshenko. During this period, the case survived a dozen of interior ministers which fact per se eliminates any immediate political implications.
Since Ablyazov and his accomplices were hiding from justice, the police put them on the wanted list. Over time, some were arrested, including the wheeler-dealer’s accountant in Czech Republic and his close assistant in England. The ‘No. 1 Kazakh fraudster’ himself was detained in France. All of these “extraordinary gentlemen” were put up behind the bars and are currently awaiting trial, while the Ukrainian government has sent extradition requests to the competent foreign authorities.
Here is a little detour on extradition to Ukraine. We should note that this issue is rather painful for Ukraine. The courts in some countries are dismissing extradition requests from Ukraine ‘by force of habit‘, based on the precedents of the past decades. This is, in the first place, ecause foreign prosecutors representing the interests of the State of Ukraine are unable to furnish sufficient evidence to the courts. With no design, of course, as they often simply lack the needed evidence, such as expert memos affirming positive changes in the Ukraine’s criminal procedure and the increasingly big numbers of defendants released on bail, the photographs of improvements and renovations in jails, etc. In the meanwhile, offenders facing extradition hire lawyers and experts which, in fact, leading the courts to perceive a one-sided picture of what is going on in Ukraine. This procedural inequality, manifested in an unbalanced representation of the interests of the prosecutor and the person facing extradition, sometimes (less often than before, to be fair) results in courts dismissing extradition requests filed by Ukraine. Such orders often refer to Ukraine’s failure to comply with the Convention for the Protection of Human Rights and Fundamental Freedoms (usually Articles 3, 5 and 6 of the Convention). Of course, such orders (primarily referring to the violation of right to a fair trial), as they are usually available in the public domain, degrade are degrading to the image of Ukraine, including its attractiveness for investors. However, these negative judgments hardly reflect the improved situation in the country.
Getting back to the story, the first among Ablyazov accomplices to be arrested in the Czech Republic was his accountant and private financier, Tatiana Paraskevich, who was detained in the Czech Republic. Ukraine’s General Prosecutor’s request to extradite Paraskevich was upheld by the Czech courts ruling that the extradition of Paraskevich to Ukraine was ‘acceptable and admissible on the basis of guarantees furnished by the General Prosecutor’s Office of Ukraine” (see the ruling of the Supreme Court in Prague in the extradition case of Tatiana Paraskevich, enclosed as 02_CourtSupreme_Resolution_Paraskevich.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x). The Constitutional Court of the Czech Republic hearing the appeal of Paraskevich, in turn, noted that ‘the Court does not regard as pivotal the general references of the applicant [Paraskevich] to various problems associated with Ukrainian justice and penitentiary, as well as any doubts regarding the impartiality of its Ukrainian authorities in certain cases in no way associated with the case of the applicant’ (see the ruling of the Constitutional Court of the Czech Republic in the extradition case of Tatiana Paraskevich, Russian translation is enclosed as 03_CourtConstit_Decision_Paraskevich_Vers_Rus.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x).
Next came Ablyazov’s accomplice Igor Kononko who was arrested in England. He was remanded in custody but later released on bail. However, regretfully, the State of Ukraine was not represented in the Court of Appeal in London, meaning that there was no one to defend the position of the General Prosecutor’s Office and submit key arguments and expert assessments to the Court. In the end, the Court dismissed the request to extradite Kononko to Ukraine, relying on evidence that was in fact forged (and uploaded to the Internet as scanned copies). The evidence allegedly confirmed that there was electronic correspondence between the lawyers of BTA Bank and the Ukrainian investigator running a criminal case against Ablyazov and his conspirators in Ukraine which is a procedural violation in the understanding of the English courts. However – and this is a critical point here – the correspondence stolen by Ablyazov’s team from the mailbox of one of the Bank’s lawyers (which is itself a criminal offence) was forged. Thus, I am afraid, in its judgment the English court relied on fake documents.
There was no one to explain to the Court that, according to Ukrainian legislation, correspondence between the victim’s counsel and the investigator running a criminal case is alone not illegal. Indeed, the legal opinion of Anzhela Stryzhevska, a former judge at trial and appellate courts and now an amicus curiae of the Supreme Court of Ukraine, reads that ‘given his procedural status, an investigator shall communicate with the victim and the victim’s counsel and, accordingly, ensure that their rights are respected in criminal proceedings. (…) The steps taken by investigator M. V. Melnyk in the context of this investigation and his contacts with the victim’s counsel via e mail are, in my opinion, legitimate.’ In addition, she noted that ‘having reviewed the materials of (…)criminal proceedings and the contents of the electronic mailboxes (…), based on my theoretical knowledge in the area of criminal law and procedure and practical experience as a judge, I feel able to declare that I don’t perceive any unlawlessness in the acts of investigator Melnyk or any signs of his being influenced by unauthorized third parties, including the victim’s attorneys’ (see expert opinion of Anzhela Stryzhevska of April 28, 2014 enclosed as 04_Expert_Opinion_Strizhevskaya.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x). Ms Stryzhevska noted that she had seen the original content of the mailboxes, and not the e-mails ‘corrected’ by a team of the fraudster, as shown below.
We had the opportunity to familiarize with the opinion of Kyiv Council of Defence Attorneys on this matter. In its letter, the Council stated that ‘the bare existence of correspondence addressed to investigator M. Melnyk does not indicate there was a violation of the criminal procedure rules by lawyers (…) because, given their procedural status and pursuant to the provisions of criminal procedure law, lawyers acting as advocates (defence attorneys) or counsel are entitled to, and the investigator is required to maintain contact with the participants of criminal proceedings in order to ensure that justice is served. Thus, we hold that the lawyers (…) acted within the powers and authority granted to them by articles 19 and 20 of the law of Ukraine ‘On advocacy and legal practice’ and article 56 of the Criminal procedure code of Ukraine, which provides that the victim and its counsel shall have all appropriate rights to ensure that the interests of the victim are protected. Availing of their procedural rights, such persons may, in their legitimate interests or in the interests of those they represent, assist in pre-trial investigation by collecting and reporting evidence to investigators, making oral and written motions with regard to certain actions and making certain decisions, etc. Therefore, sending of emails to investigator M. Melnyk requesting certain action or suggesting questions for the witnesses, etc. is not a violation of the law and may not be regarded as the interference with the investigation process or form of undue influence on the investigator’ (see Letter No. 66 of the Kyiv Council of Defence Attorneys of April 28, 2014 enclosed as 05_CouncilAttorneys_Letter.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x).
This is what the experts in law think. However, as said above, there was no one to defend the position of Urkaine in the English court. The English court has made the negative judgment because of the imbalance in representation of Kononko’s defence and the prosecution, and because it relied on falsified evidence.
Now back to our protagonist. In an effort to avoid responsibility in the post-Soviet countries that initiated criminal proceedings against him, Ablyazov fled to the west and headed to England. His ways and principles did not change, however, and the English courts were the first ones to learn that.
As mentioned above, the Kazakh fraudster was not willing to serve 22 months in prison to which he was sentenced for contempt of court in England, and fled again. However, he was arrested in a luxury villa in the south of France. An interesting detail is that when Ablyazov’s was arrested, the police found a fake diplomatic passport of the Central African Republic (see the letter of the Minister of State Security and Emigration-Immigration addressed to the Head of Interpol about the illegality of Ablyazov’s diplomatic passport enclosed as 06_InterpolMinister_Letter_Vers_Fr.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x).
Several States simultaneously sent extradition requests to France asking to surrender Ablyazov to be prosecuted.
Once trapped, Ablyazov and his team are forced to resort to a kind of zugzwang, aiming to sling mud on Ukrainian investigators and the counsel of Ablyazov’s victim, BTA Bank.
Previously, our colleagues discovered and unveiled to the public that one of Ablyazov’s lawyer had collected e-mail addresses of lawyers involved in the proceedings against Ablyazov for his brother-in-law who would then arrange the hacking thereof. It was a very interesting reading (http://glasno.com.ua/item/24878-lenka-zolotaya-ruchka (see the article enclosed as 07_Article_Lenka.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x). The article is accompanied by the police recording of Ablyazov’s lawyer talks and the transcript thereof. As we listen to this recording, we can hear Ablyazov’s brother-in-law is advised to find a hacker and “sift through” the correspondence lawyers in order to assist Ablyazov counsel.
It is interesting to note in this context that Ablyazov was not the first to resorted to such illegal IT attacks and the theft of confidential information. Earlier, Ukrainian police investigated a case involving the attack on the servers of PAT Converse Bank. In 2012, the investigator of Solomyansky District Police in Kyiv said: ‘According to the investigation, persons involved in the commission of the above crimes (Alexei Vostrikov, Vladimir Antonov and others), were also involved, on the instruction of Mukhtar Ablyazov, in the DDOS attacks on the servers of BTA Bank (Kazakhstan) and the IP telephe channels of BTA Bank’’ (see Letter No. 50/00-1033 of May 14, 2012 of the investigator of Solomyansky District Police in Kyiv N. A. Burtovy enclosed as 08_Inquiry_Interrogation_Officer.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x).
So Ablyazov’s team hired hackers and specialized agencies which, after numerous attempts in autumn of 2013, managed to hack the mailbox one of the attorneys and steal some documents and files.
Then, in early 2014 the files thoroughly “modified” by Ablyazov’s team were posted on the Internet, with the gigabytes-large archives of law firm documents uploaded on file sharing sites, in particular on Ablyazov’s loyal website http://www.trust.ua. Obviously, the goal of these steps was to effect pressure on justice, to mislead it and to tarnish the reputation of a number of individuals (including the French lawyers and prosecutors) acting in the interests of justice. As stated above, this approach worked in the with extradition case of Igor Kononko leading the English court to rely on fake submissions of Kononko’s defence.
Fortunately, such flagrant violations of criminal law did not fall on deaf ears of Ukrainian police that launched criminal proceedings into the uploading of forged documents. After some time, the investigators arrived at the conclusion that ‘the pre-trial investigation found that the (…)’s computer was unauthorizedly accessed after being infected with a computer virus designed for illegal penetration into the computer and internal corporate network and capable of distorting, staling or deleting the electronic data or the carriers thereof. As a result of this malicious penetration, the perpetrators gained full remote control of Mr. Herasymiv’s computer and thus obtained unauthorized access to confidential information.The investigation revealed that the information which had been stolen from (…)’s computer and later uploaded to the Internet was partly tampered with and corrupted. Indeed, the information posted on the Internet is not the same as the information stored on computers and storage devices’ (see Letter No. 59/2917/2 dated 7.04.2014 signed by an investigator of Shevchenkivsky District Police in Kyiv enclosed as 09_Letter_Investigator.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x). This means that the police confirmed the letters had been tampering with before publication.
We also got sight of a letter of Ukrainian provider that stores on its servers and electronic media the backup copies of all incoming and outgoing e-mail of lawyers whose mailboxes were attacked by a team of the fraudster . Having analyzing the e-mail posted on the Internet and the original correspondence of the law firm, the company arrived to the concluded that ‘the content of e-mails specified in the request (…) does not fully match the content of backup copies stored on our servers’ (see the letter of the First Consulting Centre (PP Pershy Tsentr Konsaltyngu) of June 3, 2014 enclosed as 10_Letter_PCC.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x).
We also learned that the high-ranking officials at Ukraine’s Interior Ministry initiated an official investigation into the publication of lawyers’ correspondence with investigator Melnyk. Following the investigation, the police has found that ‘what really happened was an unauthorized access, or hacking, of (…)’s computer by getting the complete remote control of that machine (…). Unauthorized intervention was effected by malware sent by e-mail from an address of an unidentified person (…). The information published by TRUST.UA on-line edition (…) does not fully match the contents of the backup e-mails (…). Having compared the published data with the backup, we can conclude that some of the information is distorted, corrupted or changed because it does not match the backup for the specified period’ (see the Conclusion on the results of examination of report by M.V. Melnyk enclosed as 11_MIA_Conclusion_2014-06-03_Vers_Ukr.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x).
In March 2014, Arseniy Herasymiv, an attorney involved in the case whose computer was hacked by Ablyazov’s accomplices, filed a claim with Golosiivsky District Court requesting the registrar of domain name to delete the stolen information from the webpage. On May 22, 2014, the Golosiivsky District Court of Kyiv granted the claim. The judge also found that “the uploaded (…) information and correspondence, the scanned copies of which were provided in the said documents (…), were obtained in breach of privacy of correspondence and attorney-client privilege,partly falsified/changed and are inconsistent with the electronic date actually available on computers and data storage devices” (See the ruling of the Golosiivsky District Court of Kyiv dd. May 22, 2014, enclosed as 12_Court_Judgment_2014-05-22.pdf, archive: http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x). The judgment was made in the name of Ukraine and became effective.
In the above-mentioned analysis of the Kyiv Council of Defense Attorneys it was also stated that “upon inspection of the attorneys’ e-mails (…) as regards their correspondence with M. Melnyk, investigator of Investigation Division of the Main Directorate of the Ministry of Internal Affairs of Ukraine in the city of Kyiv (SU GU MVS of Ukraine), it was established that there were discrepancies between the documents posted on the said online resources and the original correspondence”. Thereto, the Kyiv Council of Defense Attorneys noted the most important thing: “Thereto, comparative analysis of the original and partly falsified correspondence, which was posted on the Internet, gives grounds to conclude that by deliberately altering the texts of original correspondence the perpetrators intended to create an impression that the representatives of the victim (BTA Bank) exerted influence on the investigation in this case in an illegal and unethical manner”. The ancients said, “Qui bono?” (To whose benefit?). In this particular situation response is at the surface: break-ins and falsification are beneficial to a group of fraudsters we write this article about.
Apart from the above said documents, forgery is confirmed by a simple logic: unlawful interference with computer of the Bank’s attorney Arseniy Herasymiv and stealing of information were committed in November 2013. However, the stolen correspondence was uploaded on the Internet only in February 2014. Why, you ask? The answer is simple: the documents had to be “modified” to conform to the logic of the fraduster pretending to be a political opponent, and modification takes time.
It is also noteworthy that it was precisely the scanned copies of the emails stolen from the attorney’s computer were posted on the internet rather than their electronic versions. Experts believe that it was done intentionally, so that it would be impossible to trace the history of changes in the content and falsification of e-mails.
Therefore, falsification of the data posted on the Internet by Ablyazov’s team was confirmed many times: by the police, by the Council of Defense Attorneys, by the Internet provider and, what’s most important, by the court.
P.S.When we were summarizing the findings of the independent investigative journalism, “were composing the above article”, we came across the document which removes all doubts as regards fraudulent actions of our “hero’s” team. We mean response of the Prosecutor General’s Office of Ukraine (signed personally by the new Prosecutor General) to inquiry of the French public agencies. France requested Ukraine to comment on the documents filed by Ablyazov’s attorneys, which allegedly evidenced that Ablyazov was brought to criminal responsibility in Ukraine for no good reason. Thereto, the French provided a copy of conclusion of the MIA of Ukraine to the GPO. Judging by the GPO’s response, Ablyazov’s defense attorneys provided a false conclusion of the MIA of Ukraine to the French court! Though it is simpler just to cite. Thus, the Prosecutor General of Ukraine commented to the French agencies as follows: “The Prosecutor General’s Office has officially requested an original copy the said report of 10 September 2014. The original report provided to the Prosecutor General’s Office contains 3 pages, while the copy submitted by the French Ministry of Foreign Affairs contains 11. The original report contains nothing that could be seen as describing the prosecution of Mukhtar Ablyazov for the offences for which his extradition is requested as wrongful. There are grounds to assume, therefore, that the Criminal Investigation Department report of 10 September 2014 submitted to the Advocate General’s Office of Lyon by Ablyazov’s counsel was tampered with.”
The GPO again confirmed in its response that “the pre-trial investigation authority and the supervisor of proceedings are satisfied to the effect that there is sufficient evidence to suspect Mukhtar Ablyazov of the offences he has been charged with” (see letter of the Prosecutor General’s Office of Ukraine dd. 24 September 2014, file 13_GeneralProsecutor_Letter_2014-24-09.pdf, go to http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x).
We see that the fraudster’s team continues desperate attempts to deceive and confuse everybody now counterfeiting official state documents. However, all these Ablyazov’s activities seem only to worsen his already stalemate situation.
Justice pursues Ablyazov relentlessly wherever he goes, and his cynical disrespect to judicial and prosecution authorities, and his opponents reached heights.
Now when the theft and falsification of confidential documents of Ukrainian law firm by Mukhtar Ablyazov and his accomplices is a proven fact expecting consideration by the French court in the extradition case of Ablyazov, the team of fraudsters continues to publish “incriminating” information. The goal is clear and remains unchanged: to deceive everyone, to mislead the court and to avoid responsibility for the crimes committed. However, in our opinion, conclusions of the English court on fraudulent activities of Ablyazov and the investigation conducted by us permit to conclude that with due consideration of all the above (and attached) documents, justice will inevitably whisper to Ablyazov: “You will not slip away from justice”.
Albert Kryvenko
To download all attachments (1..13) in English go to http://bit.ly/1mqQqEO http://bit.ly/1wLrs3x.
Attachments:
- Ruling of Kyiv Court of Appeal dd. June 19, 2014.
- Judgment of the Supreme Court of the Czech Republic (Prague) in the extradition case of T. Paraskevich to Ukraine.
- Judgment of the Constitutional Court of the Czech Republic) in the extradition case of T. Paraskevich to Ukraine.
- Expert Opinion of A. Stryzhevska dd. April 28, 2014.
- Letter of the Kyiv Bar Council dd. April 28, 2014, No. 66.
- Letter of Minister of Homeland Security and Emigration-Immigration to Interpol’s Executive Director on illegality of Ablyazov’s diplomatic passport.
- Article “Lenka Thief Gold”.
- Letter of M.O. Burtovy, investigator of Investigation Division, Solomyansky District Department of the Main Directorate of the Ministry of Internal Affairs of Ukraine in Kyiv dd. May 14, 2012, No. 50/00-1033.
- Letter of investigator of Investigation Division, Shevchenkivsky District Department of the Main Directorate of the Ministry of Internal Affairs of Ukraine in Kyiv dd. April 7, 2014, No. 59/2917/2.
- Letter of Private Enterprise “First Consulting Centre” dd. June 3, 2014.
- Conclusion on the results of examination of report by M.V. Melnyk, investigator of Investigation Division of the Main Directorate of the Ministry of Internal Affairs of Ukraine in the city of Kyiv.
- Decision of the Golosiivsky District Court of Kyiv dd. May 22, 2014.
- Letter of the Prosecutor General’s Office of Ukraine dd. 24 September 2014.