The Ablyazov files: mist and rain versus sunny blue skies/II

As Kazakhstan’s master-swindler Mukhtar Ablyazov’s trial in France over his extradition either to the Russian Federation or to Ukraine, originally planned for this month but delayed until September, keeps dragging on with a good chance that, in case of appeal, the culprit will spend one more winter behind bars, the legal battle over the funds and assets he embezzled continues not only on yonder side of the Channel but across the Atlantic as well. Despite the fact that Ablyazov has been barred from defence in the UK, his name appears time and again in court documents and his lawyers in court. A fresh order from the Royal Court of England and Wales gives full details, including a number of facts non-disclosed so far, on the case concerning the illegal sale of a major asset near Moscow’s Domodedovo airport to a tycoon from the northern Caucasus. – one of the facts for which Ablyazov is now meant to be brought to justice in Russia following his extradition from France. But the verdict also refers and adds details to related cases concerning what is known as the Chrysopa case and other “logoparks” in the Russian Federation involving Ablyazov and associates. As breaking news should be considered the entry of the name of one of those other Kazakh culprits on the run: Almaty’s former mayor Viktor Khrapunov.

BY CHARLES VAN DER LEEUW, WRITER, NEWS ANALYST

The Ablyazov files: mist and rain versus sunny blue skies/IIIn the English court ruling quoted in the previous episode of this never-ending saga [http://www.bailii.org/ew/cases/EWCA/Civ/2014/602.html] not only the Domodedovo “logopark” was focused upon, but also other assets which form part of the core issue for which the Russian Federation wants Ablyazov on trial. Key figures are the Tyshchenko (also spelt Tishchenko) couple, now divorced, from Ukraine. Yelena Tyshchenko has become world famous mainly because she used to be Ablyazov’s lawyer (and, reputedly, mistress) who in the end, on August 31 was arrested in Moscow after she had, unwittingly, put European police forces on Ablyazov’s trail. According to a report on the incident by Kommersant [http://www.kommersant.ru/doc/2269318], either the same day or the next morning she was taken to a court hearing learning that she was under investigation for alleged “legalisation of illegally appropriated assets” and “blocking creditors’ access to deposits and securities” to the equivalent of around 3.3 bilion US dollar in all. At the initial hearing, still according to Kommersant, Madam Tyshchenko chose to leave all questions unanswered, appealing to Article 51 of the Russian Constitution according to which no suspect can be forced to bring evidence against his/her own case.

“On 9 October 2013 the Bank became aware of press reports that Mr Tyshchenko had seized Logoparks Pyshma and Tolmachevo, both of which were owned by companies that appeared to be Ablyazov companies, and which had been added to the Receivership,” the latest London court document reads. “The Bank obtained disclosure relief against Mr Tyshchenko which led to him swearing the two affidavits. In them he explained how in 2012 Mr Ablyazov had offered him the opportunity to purchase the shares in the companies owning Logoparks Pyshma, Tolmachevo and Biek Tau by redeeming the bank loans against the companies’ assets with money provided by Mr Ablyazov and thereafter obtaining a transfer of the shares, which Mr Tyshchenko would then hold as nominee for Mr Ablyazov. He turned this offer down. Mr Tyshchenko also gave details of the way in which Medion CJSC, an Ablyazov company, took control of the Pyshma Logopark. In 2008 or 2009 LLC Logopark Pyshma, the company owning the Pyshma park, obtained a loan from MDM, a bank. In August 2011 Medion took a loan from BTF, another bank. Medion used that money to buy the right to repayment of the MDM loan to Logopark Pyshma. In December 2012 Logopark Pyshma defaulted and Medion enforced, taking Logopark Pyshma’s assets i.e. the Pyshma park. The BTF bank was prepared to lend because Mr Khrapunov, MAblyazov’s son in law, had arranged for it to receive a deposit in the sum of $ 70 million. This is, the Bank submits, the same modus operandi as Mr Ablyazov adopted in relation to Dregon Land. Mr Tyshchenko also said that he understood from Mr Ablyazov that similar arrangements took place in relation to the Tolmachevo and Biek Tau Logoparks. Mr Tyshchenko also said that he understood from Mr Ablyazov that similar arrangements took place in relation to the Tolmachevo and Biek Tau Logoparks. In his December affidavit he said that Mr Ablyazov had suggested that he should purchase the loans made by AMT Bank (an Ablyazov company) in relation to three companies, enforce the loans in order to obtain shares in the companies and then together they would sell the shares and divide the profits. ”

In an open letter [http://sergey-tishchenko.net/?p=101&langs=en] to Kazakhstan’s First Prosecutor-General Askhar Kayzullaevich Daulbayev written over summer last year, Sergey Tushchenko clearly tried to find a way out for himself with his head up and staying out of prison by explaining himself. But the confession-in-defence also reveals that Sergey Petrovich has been involved in other schemes in Ablyazov’s carousel – including what is known as the Chrysopa scam with The Netherlands as its offshore haven. The most intriguing point is that the chronology of events he gives in his letter bears no dates, and thereby leaves readers in the dark exactly when and where the events he relates are supposed to have taken place. This, in turn, appears to have left BTA and its lawyers in doubt whether Tishchenko has really been that unwitting in his dealings with Ablyazov as he claims.

“I, Tischenko Sergey Petrovich, a Ukrainian businessman and the Chairman of Supervisory Board of Fortuna Bank, the founder of Factor Group of Companies, am addressing to you with the request to interrupt and asset influence on the situation connected with the conflict between BTA Bank and Mukhtar Ablyazov,” the letter begins. “I was involved into this situation against my will, and it has caused many problems and difficulties to me, my family and business activities. The acquaintance I had with Mukhtar Ablyazov, who was presenting himself as a businessman, was based on pure business interest, as I was willing to buy an asset of my interest he had, that is Vitino Port  in the Russian Federation. In the course of our acquaintance, because of his hidden fraud activities in the field of commerce, all assets of my business and family members have been arrested here, in Ukraine. The reputation of my bank has been seriously damaged, and I had to testify to investigation agencies, which began to suspect me being involved in the theft of assets with Mr. Ablyazov. In Ukraine I gave all necessary testimony and explanations to the investigation agencies. […] As a result of dishonest combinatory actions of Mr. Ablyazov, I suffered as a husband and businessman, and my wife, who after the divorce took all care responsibilities after our four little children, cannot fulfill her mother obligations. Taking this into account, I as a moral person want to establish full cooperation with BTA Bank in order to return all problem assets and assist investigation agencies in order to prove all fraud activities of Ablyazov’s group that I am aware of.”

The big question is whether or not Tishchenko was aware of the English freezing order when he purchased the three mentioned assets. “On September 25-26, 2013, I personally arrived to Astana, where I met with law enforcement agencies,” the letter continues. “I told everything about the chronology of our relations arisen on the basis of effort to purchase Vitino port: when I had entered into the purchase agreement for the name of companies of authorize representatives of Ablyazov, namely – Sheklanov and Pukhlikov; when I have bought the debt of Usarel Company to BTA bank and had been ready to pay it off, and as a result I had got the London Court decision on the fact that my companies involved into the purchase process, were the property of Ablyazov and were under receiver (or “frozen”).  At the meeting I presented all materials connected with Ablyazov’s schemes in my possession, full explanations and my vision of solving the problem for the benefit of BTA Bank on every problem asset, including Vitino port.” Painful detail: those problems remain unsolved up to this very day.

But Tishchenko does not seem to give way. “As I had been connected with these questions one way or another, I have a rational vision how to take control of these assets in short terms, as opposed to the actions of London lawyers, who are during three years ‘successfully’ implementing warrants of London court of the territory of CIS and other European countries. I have approached to the Bank with my offers to return assets to Kazakhstan, and I have been advised to solve these issues though British courts. So, recently in September 2013, having received a preliminary approval of BTA Bank, I myself and at my own expense, acting for the benefit of my interests and interests of the Bank, have received a full control over two assets: Pyshma and Tolmachevo logistics centers of total cost of $250 million. Also, I have presented my detailed plan of our further cooperation with the Bank on every asset and a plan of acquisition of control over other objects, total cost of which is $150 million.”

“I am completely ready to cooperate with Kazakh party and I take all obligations to provide full control over mentioned assets in Russia (Paveletsky DS, Marine Gardens DS, Fintsentr, Pyshma logopark, Tolmachevo logopark and Vitino port) and continue further cooperation in discovering other hidden objects related to Ablyazev structure indirectly and return them into possession of the Bank or ensure the reimbursement of credits with all lost benefits. Also, Elena Tischenko is taking all obligations to cooperate with the investigation agencies in open and full manner, in order to determine the facts and people serving the interests of Mukhtar Ablyzov and keeping his commercial information; with the Bank agreement, to sue London lawyers and determine the facts of unconscionable cooperation of Hogan Lovels with some officers of BTA Bank that resulted in huge amount of money spending by BTA Bank ($600 mln); cooperate with law advisors in Kazakhstan in order to achieve necessary results of the important court processes, so in future BTA Bank will not have to face negative actions from the side of its opponents. Thus, by closing all channels of receiving the illegal income from the assets under Ablyazov control to Ablyazov Group and determination the facts important for the investigation we will get a fair punishment for M. Ablyazov and return everything that had been stolen by him to Kazakhstan.”

The entry of Viktor Khrapunov in the Ablyazov files seems to give a fresh dimension in so far that it has now become clear that their relations are not limited to family business but business for business’ sake as well. It looks, with the new information in mid, as though part of the estimated seven- to eight hundred million US dollar worth embezzlements by the former mayor of Almaty has ended up in Ablyazov’s pockets as a result of the loan guarantee mentioned in the English court document. Action against the Khrapunov family in Switzerland is in full swing, with tit-for-tat moves initiated by the parties. In a latest move from the Kazakh state, the Khrapunov couple’s extradition is being sought – with little chance since the two countries have no extradition agreement and moreover, Switzerland never extradites over economic offences, even if it means overruling an existing extradition treaty.

“Kazakhstan’s Prosecutor General’s Office is not conducting any investigation (in regards to the Khrapunov case) at the territory of Switzerland. In March, we sent a request to Switzerland through the diplomatic channels asking the Swiss authorities to extradite Victor Khrapunov,” the Kazakh independent news agency Tengrinews wrote in a recent report [http://en.tengrinews.kz/crime/Kazakhstan-demands-Khrapunov-extradition-from-Switzerland-254204/] in response to allegations from Switzerland that “Kazakh agents” were thought to be “spying” on the Khrapunov family – prompting Swiss authorities to open an investigation. “Pursuing one of the earlier media reports that Kazakhstani law enforcement authorities were suspected of espionage at the territory of Switzerland, Tengrinews asked the Prosecutor’s office to comment on the information. The Prosecutor General’s Office denied the allegations,” the news report reads further. “We have not received any formal inquires from the Swiss Prosecutor General’s Office,” the Kazakh Prosecutor General’s Office was quoted as observing. In August 2013 all the bank accounts of the Khrapunov family in Credit Suisse и Schroder & Co Bank AG were frozen by the Swiss authorities ‘until the time the origins of the funds are defined. Bank, financial and other documents were seized for review and legal assessment,’ the Swiss police reported.”

While embattling himself in France against his eventual extradition, his lawyers keep trying to get his convictions in England undone as well – not just in England but elsewhere in the world as well, including the European Court of Human Rights. “Mr Ablyazov has […] run out of avenues in the English Courts, but he intends to apply to the European Court of Human Rights (the ECtHR’) for a declaration that the striking out of his defences amounted to a violation of his Article 6 rights (to a court and to a fair hearing) and that execution of the judgments would infringe his right to property under Article 1of the European Convention on Human Rights (‘the ECHR’). Indeed, on 22 April 2013 his Solicitors submitted a Letter of Introduction to the Registrar of the ECtHR indicating that intention,” a court document from the British Virgin Islands [http://www.eccourts.org/wp-content/files_mf/02.05.13jscbtabankvmukhtarablyazov.pdf] publicised in late spring last year read, following a challenge by Ablyazov at the BVI court to rule out compliance by the local authorities with the freezing order from London. For all it mattered, the attempt proved to be in vain. “This approach to the matter means that it is unnecessary for me to deal in any depth with the interesting submissions which were made as to the operation of the ECtHR and of

the Human Rights Act 1998,” the BVI judge observed. “I intend no discourtesy to Counsel who have so skillfully advanced them by not dealing with those submissions as made, but I am satisfied, for the reasons which I have attempted to give above, that it is neither unjust nor inconvenient for these judgments to be enforced in this jurisdiction. On the contrary, it seems to me to be both just and convenient that they should be. For those reasons, this application fails.”

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