Date of publication: 30 September 2015
Roman Marchenko, Attorney at Law, Senior Partner
Source: Dzerkalo Tyzhnia
Roman Marchenko, the Senior Partner at the well-known Ilyashev & Partners Law Firm, shared his view as to how Ukraine can replenish its budget by bringing investigation of one criminal case to its logical end. He referred to the criminal case initiated against Mr. Mukhtar Ablyazov – former head and owner of BTA Bank in Kazakhstan. The banker misappropriated vast amounts of money belonging to the bank’s investors so that the total estimated amount of losses suffered a result of his activities reaches up to USD 12 bln …
– How could one person pull such thing across?
– Of course, no one is able to commit such fraud singlehandedly. In order to materialize such scam into practice Mukhtar Ablyazov had created an organized criminal group. Courts of England have already confirmed the fact of misappropriation by the said group of USD 4.3 bln. At the same time British judges established that assets from BTA Bank were withdrawn through transnational network consisting of 1 300 off-shore companies. As a result, law-enforcement officers from more than ten countries are involved into investigation of crimes committed at the territory of several post-Soviet states.
– How can Ukraine get hold of Mr. Ablyazov’s assets?
– Mr. Ablyazov is accused of committing a fraud and misappropriation is especially large amounts. Such criminal acts are punishable with imprisonment for up to 12 years. Also if the court upholds a corresponding judgment and such judgment enters into legal force the monetary and other assets of Mr. Ablyazov’s organized criminal group shall be subject to confiscation for the benefit of the Ukrainian budget.
– What is the estimated volume of Mr. Ablyazov’s assets?
– It needs to be highlighted that for the recent six years, in the course of which Ilyashev & Partners Law Firm has been representing the interests of BTA Bank (suffering party), it has managed to trace and return the sum exceeding USD 1 bln of the monetary assets stolen from the bank. The actual amount of assets of the ill-fated banker is several times higher because Mr. Ablyazov hired professional consultants who successfully assisted him in hiding the stolen money.
– When should such judgment be expected in Ukraine?
– I cannot give a straightforward answer to this question. In its decision Lyon court of appeal (which was later acknowledged by Paris court of cassation) indicated the Russian Federation as the priority country to carry out extradition of Mr. Ablyazov to.
– How did it happen?
– Pursuant to legislation of France when several countries simultaneously request extradition the priority is given to the country which suffered most. Losses caused by Mr. Ablyazov’s group in Russia are higher than losses caused in Ukraine. At the same time it is the French government which is to arrive to the final decision as to the extradition country. Having regard for the EU’s position towards annexation of Crimea and actions in Donbass the French government will possibly restrain from upholding a decision on extradition of Mr. Ablyazov to the Russian Federation. At the same time it must be taken into consideration that decision of the French government regarding extradition of Mr. Ablyazov may be appealed to the French Council of State and the European Court of Human Rights. I believe that Mr. Ablyazov’s attorneys will continue using their best efforts to drag out the process. However, up to present Mr. Ablyazov has already spent three years in the detention facility.
– Is it possible that Mr. Ablyazov’s case will fall apart in Ukrainian courts?
– In the course of six years the investigation authorities have managed to gather irrefutable proof of Mukhtar Ablyazov’s guilt, the guilt of his relative, Mr. Sirim Shalabaev, who was recently arrested in Lithuania, as well as of other members of the criminal group. I am sure that trial of Mr. Ablyazov will become an exemplary case for all those bankers, including those from Ukraine, who mix their own assets with assets of the banks’ investors. “The case of Mr. Ablyazov” will be a genuine test for law-enforcement and judicial systems of Ukraine.
– Why do you think so?
– For the first time in its history Ukraine will see an oligarch at the defendants’ bench and such oligarch is ready to employ various tricks, rather illegal, to not be viewed as a criminal guilty of fraud, but a victim of political repressions. For example, in the course of the review in the French court of the extradition case the defendant’s attorneys submitted a false document signed by top official of Ukrainian Ministry of Internal Affairs in which is was informed that Ukrainian investigation authorities are allegedly having no claims against Mukhtar Ablyazov. The Prosecutor General of Ukraine had to personally send a letter to France to refute the said statement and inform French authorities about an evident forgery.
– It means there are no political repressions involved?
– I, as a Ukrainian lawyer, find it beyond my scope to make judgment about the Russian Federation and Kazakhstan (regardless of the fact that it is the office of Ilyashev & Partners which is engaged into legal work on Mr. Ablyazov’s prosecution in Russia for his “actions” committed there). If we talk about Ukraine I must state that the criminal case was initiated when the President Yushchenko was in power to be later investigated under the Presidency of Mr. Yanukovych and, finally, the pre-trial investigation is still carried out under the current Ukrainian President. Throughout the whole period when the criminal case was initiated Ukraine has seen how two dozens of Prosecutors General, the Ministers of Internal Affairs and even investigators in BTA case were appointed to and removed from their offices. But the criminal proceedings are carried out under the established procedure. The courts have dismissed the claims of the defendants on closing the case three times. Pseudo attorneys hired by Mr. Ablyazov have also numerously tried to hush up the case but to no avail – the criminal actions and their elements are too evident.
– You would like to say that in Mr. Ablyazov’s case there is no political component?
– A clear opinion about this was given by European courts. While reviewing the episodes of fraud and upholding a decision of Mr. Ablyazov’s 22-month detention courts of England refused to take the defendant’s reasons based on “political persecutions” into consideration. The Constitutional Court of Czech Republic, which is in the process of making a decision on extradition to Ukraine of the banker’s accomplice, Ms. Tetiana Paraskevych, has also dismissed the political arguments. I can site this list of examples for a long time. The conclusion is evident – Mr. Ablyazov and the criminal group organized by him are only “playing” the role of politicians but are no more than ordinary, although high-scale, thieves.