Author: Nurakhmet KENZHEYEV 11/5/2012
At the end of October, the British lawyers of Mukhtar Ablyazov petitioned for the recusal of Judge Nigel Teare in the proceedings of “BTA Bank versus Mukhtar Ablyazov”, which is supposed to begin in London on November 6. They also requested a postponement of the start of these hearings, as there has not yet been an official publishing of the result for Ablyazov’s petition for appeal relating to contempt of court. Judge Teare did not wish to remove himself from the case or postpone it. We asked Mukhtar Ablyazov himself to relate what is going on surrounding the notorious court case.
– Mukhtar Kabulovich, information has appeared in the press about the fact that you petitioned for Judge Teare to recuse himself in your case. Is that so? What does this mean?
– At the end of October, my lawyers submitted two judicial petitions. First, we requested a postponement of the start of judicial hearings on the BTA cases against me. And, second, we requested Judge Nigel Teare to recuse himself from his role of judge because he cannot impartially and fairly handle the cases against me. The hearing for the BTA cases, that is, consideration of the cases on merits, will begin soon, in November 2012.
– Have the BTA cases against you really not been reviewed up to this point? Then what were the court sessions we have been hearing about for a fairly long time?
– No, I did not misspeak, the BTA cases against me will in fact begin proceedings only in November 2012. BTA Bank pursued litigation in September 2009, and then several more cases followed, but over the past three years these cases have not been tried.
For all of these years we have wrestled over issues of a procedural nature. Before the BTA case was filed, in August of 2009, according to BTA’s petition Judge Blair adopted a decision to freeze all of my assets. This took place in secret from me, although I was in London at that time. A decision was made to seize all of my assets and in fact seize my passport. The lawyers said that this decision was unprecedented. My documents at that time were pending at the Home Office (Great Britain’s Internal Affairs Ministry – ed.) for the matter of providing me with political asylum.
All of the primary arguments that took place in court after the assets were seized were connected namely with this so-called “injunction” order about the seizing of my assets, and not with BTA’s actual cases against me. The essence of the arguments is whether or not I fulfilled the order about the seizure, whether I properly disclosed my assets, and whether the disclosure was complete.
Blair to Blair – not the enemy
– Interesting last name for a judge. Does he have a relation to Tony Blair, the former prime minister?
– A most direct one. Judge William Blair is Tony Blair’s older brother. So it is Tony Blair’s older brother who made the ruling to seize my assets and my documents. And from that moment our procedural judicial war began with the Nazarbayev regime, standing behind BTA Bank, nationalized by the government.
– I would like to clarify. Do I understand correctly that the principal decisions in this proceeding were made by a judge who is the older brother of the current adviser to Nursultan Nazarbayev, Tony Blair?
– The first, the most fundamental, the most important decisions for the “BTA Versus Ablyazov” case were made by Judge Blair, Tony Blair’s older brother.
– And how do you figure this coincidence?!
– Well, some recent events were already made public. In 2011 Tony Blair became an adviser to Nursultan Nazarbayev, and for that he is compensated 8 million pounds of sterling per year. Supposedly Tony Blair receives this money for giving economic advice to President Nazarbayev.
But everyone knows that Tony Blair cannot say anything intelligible about Kazakhstan’s economy.
Blair is not an expert in this field. It is completely obvious that he is a simple lobbyist for the interests of the Nazarbayev family in England’s territory. First and foremost a lobbyist for Nazarbayev himself.
Note that all of the subsequent key decisions in 2011 were made when BTA accused me of supposedly violating the order given by Judge Blair and not disclosing all of my assets. Even though this assertion contradicts basic logic. I disclosed that I was a joint owner of the Kazakhstan BTA, Russian BTA, and banks in Georgia, Armenia, and Ukraine. I showed assets that at the beginning of 2009 were worth a significant sum of money – billions of dollars.
The bank accused me of hiding assets for a few tens of millions of pounds. I disclosed multi-billion assets, but don’t you know I did not disclose some assets for a few tens of millions of pounds. If these assets belonged to me, why would I have hidden them? Meanwhile, at the end of 2011, judicial hearings on these charges took place, and in February of 2012 Judge Teare sentenced me to 22 months of prison, having ruled that I displayed contempt of court since I did not disclose my assets in full.
And in 2012, on the eve of the hearings in November, we learned that Tony Blair will now receive not 8 million pounds for advising Kazakhstan, but 16 million. This became known in October. I believe that all of these events have a certain reasoning behind them and require an independent investigation. But that is a topic for a different discussion.
Losing your right for defense – and victory in the pocket
– And what is the result of your requests for a postponement of the start of the hearings and the recusal of Judge Teare? Are they satisfied?
– The irony is that both petitions were reiewed by Judge Teare himself. He refused us the postponement of the start of the hearing and refused to recuse himself.
– Why do you think Teare cannot be the judge in your proceedings with BTA?
– I believe that a judge should be truly impartial. And Judge Teare cannot be that – he has already conducted a series of pre-trial hearings and decided to punish me with a term of 22 months for contempt of court.
– So Judge Teare accused you with contempt to himself?
– He decided that I do not respect the court. And once he arrived at that decision, that means he believes that I show disrespect to him all the time, in his viewpoint.
In general, the situation, if you think about it, is interesting. At the end of February 2012, after the ruling about my 22-month sentence came out, BTA Bank appealed to Judge Teare with a petition to deprive me of defense in court on the basis that, first of all, I did not disclose all of my assets to them in full, and second of all, because I did not appear in court in order to serve my time.
That is, the bank accuses me of multi-billions in thefts, accuses that I am a cheat, and brings cases against me, and in so doing the bank in reality does not want these cases to be heard in court but wants to win on technicalities. That is, win without having to prove whether the embezzlements actually occurred or not.
The obligations of a court, any court – both English and Kazakh – consist of rendering a fair verdict. In this case, Teare reached a verdict that yes, I must be denied defense since I displayed disrespect for him, not fulfilling his order. But that is absurd! He, it turns out, was not interested in fair case proceedings and wants to carry out a verdict without examining the case on merits in November.
Here his biased attitude is already evident. If a person is knowingly inclined against, if he believes that I generally should not have the right to defend myself, then it is evident that he should have recused himself long ago. Instead, Teare refused to do that.
We filed an appeal on his ruling to deny me my right to defense. The hearing on the appeal was in the summer of 2012. The appellate court’s decision has not been issued as of yet. In the meantime, hearings for the BTA cases begin on November 6. We asked Teare for a postponement in order to receive a ruling from the appellate court, but Teare refused us in that.
As a result, hearings for the BTA cases begin on November 6, and Judge Teare will hear these cases according to Kazakh law.
– How is that possible?
– Anything is possible… The situation developed like this. I was in England at that time. The bank figured that it could file a suit in England on the basis that the defendant was in England at that time. The bank demanded that the proceedings be according to Kazakh law (and, where required, according to the laws of Ukraine and Russia).
I did not object since I believed that the judge in this situation should be able to understand Kazakh legislation, hear the opinion of the two sides, and call in experts. And he should be able to understand the entire context of this conflict from the point of view of how Kazakh governance operates.
However, surprising things were brought to light in the proceedings. In spite of the fact that the dispute is according to Kazakh law, the procedures and the decision to freeze assets are taking place according to… English legislation. So the judge is making all of the decisions before the case proceeding according to English legislation.
But if the English court made a decision to hear the case according to Kazakh legislation, then it should take into account all of the factors. Including political.
– And what is the English judge doing?
– He is taking the following position: BTA Bank is a legal entity that does not depend either on Samruk-Kazyna, the government of Kazakhstan, or Nazarbayev – that is, on authorities in power.
We say: “No. The Bank depends directly on Samruk-Kazyna, depends directly on the government. All bank directors are in fact appointed by the government.” The bank asserts that it does not depend on the government and Samruk-Kazyna but makes its own independent decisions. And it is this reasoning that guides Judge Teare. “Yes, they are right,” he states. After all, according to the law “On Stock Company”, BTA is an independent stock company.
Imagine, BTA Bank does not depend on Samruk-Kazyna, the government of Kazakhstan, or Nazarbayev? If you say that to our citizens, they will all laugh.
The Smagulov house is attributed to Ablyazov
– It is believed that the English court is capable of evaluating the core of the dispute and not being guided by formal criteria. But you are now talking about a completely reversed situation…
– I also expected the judge to hear the case upon the facts. But… I will give you this example. When I became chairman of the bank’s board of directors, the decision was, of course, agreed upon by everyone both in the government and on the part of the regulator. However, when I write in my defense that my appointment to the post of chairman of the BTA board of directors was agreed to by Nazarbayev personally, in England they do not understand this: “But what kind of relationship does Nazarbayev have with the bank? He is not a stockholder of the bank, and he is not a member of the board of directors.”
In England they do not understand how the state administration system, as it is called, works in Kazakhstan. The judge simply does not understand and cannot understand. After all, in England the queen does not interfere in business affairs. Or the prime minister. Therefore, the judge is coming from the logic of English judicial proceedings, and the logic of English life.
And he does not understand why I believe that this conflict should be investigated in the full context. He takes the position: “The government, Nazarbayev, and his son-in-law Timur Kulibayev do not have anything to do with what is happening. The bank is an independent legal entity. We will handle this conflict as a standard conflict between a stockholder and a legal entity in the civil process.”
How can this argument be handled in this way? Nazarbayev was involved in extortion of stocks, and he wanted to take away my assets. Upon his demand, an illegal nationalization took place, as a result of which the country’s most successful bank was completely ruined. But the judge does not even listen to this part. And in fact the judge, if he does not understand how the Kazakh state machine and in general all of business in Kazakhstan works, cannot be fair.
And the issue here is that the judge essentially does not want to investigate it. We are calling in experts who are writing their own findings – he is ignoring all of it. I hoped that Teare’s position would change over the course of the proceedings. That he would become suitable. We brought in a large number of documents, expert evaluations, and research completed by independent parties. He did not pay attention to any of it and ultimately made many decisions that confirmed my position that the judge was biased from the outset.
– It is very curious to understand why he conducts himself like that. Does he just want to finish this case quickly, or is he somehow interested in handling this situation from the perspective of the current BTA Bank?
– Now I can only observe that the judge turned out not to be capable of objectively analyzing the materials and facts that we presented to him. And that he does not want to handle the case according to fact.
His verdict on the non-disclosure of assets is completely ludicrous. He accuses me of not disclosing a number of assets that supposedly belong to me, but the surprising thing is that legal documents prove that I am not their owner.
The owners of the assets attributed to me are asserting their rights of ownership through their lawyers, English and from other countries, and are presenting documents, but the judge does not accept them. He believes that they are my covert advocates. Except that he does not have any kind of evidence for this, and the owners do have their evidence.
That is one example of the absurdity. The bank points to one house in England and claims that this real estate property belongs to me. In reality, this house belongs to Nurlan Smagulov, a famous businessman in Kazakhstan.
BTA argues their position thus – Smagulov was my partner at one point in time, and that means he is holding onto this property… for me. Smagulov is trying to prove that his family has ownership. He hired English lawyers and gave supporting documents of how and when he bought the house. But it was not accepted. It’s just absurd.
And here is an example of my “concealment” of assets: BTA states – Ablyazov concealed possession by means of these companies and gives a list of the companies. What is BTA basing its conclusions on, that these companies belong to me? These companies simply had accounts in the Russian Promsvyazbank. BTA states that these companies belong to Ablyazov because Ablyazov’s companies held accounts in Promsvyazbank. And the judge is in agreement with this logic. The owners of these companies are outraged and assert their rights to them, but it is ignored.
Judge Teare’s reasoning is thus – I should now acknowledge certain assets as mine only because he has decided so. And he believes that if I do not agree with him, then I have not fulfilled his order and should go to prison. But if these assets do not belong to me, then how can I admit to them? Only to show him respect?
I understood that, sitting in jail, I would have no chance to defend myself. Therefore I refused to go to prison. And then Teare made an unprecedented decision – to deny me my right to defense.
Even Roman Polanski, the famous director who was accused of raping a minor, in spite of the seriousness of the charge was allowed to defend himself with his British lawyers when he left England. And here we have a civil suit.
A strange situation: they are charging me with fraud, with embezzlement of billions of dollars, and I am prepared to defend myself, contest the charges filed against me, but the judge is not giving me that opportunity.
“If Teare stays, the result is predetermined.”
– What scenarios are possible for the situation’s development?
– There could be various scenarios. But if I am denied my right to defense by the appellate court’s decision, then I will appeal to the High Court. Therefore, I am requesting that the session not begin in November – it is essential that all of the channels are gone through.
And if it is decided that I have a right to defense, then a full-fledged judicial hearing should take place, and I insist that Teare abandon the position of judge in my proceedings. And it is around that, I think, that the struggle is developing now.
– And if that does not happen? If, suppose, Teare stays?
– If Teare stays, the result is known beforehand. I am accusing him of being biased against me. In essence, I am in a situation of conflict with him. And I am not just accusing him: I am presenting facts, and many of them.
How can you talk about the fairness of a judge if, when another side appeals to him, accusing me of fraud, he does not want to handle the case on points of fact and tries to deprive me of defense? In fact, BTA can win this case without even proving that it is right.
– So in essence, in this proceeding the bank needed to secure the denial of your right to defense?
– In English judicial proceedings it looks like this. If one of the sides for some reason is absent from the proceeding, it can be issued a defeat on that basis, not investigating the case on matters of fact. But I am present. And Teare does not want me to be defended.
– This is a violation of the fundamental right of a person to defense…
– I am also surprised to encounter this in an English court. But the main reason of Judge Teare’s bias, I believe, is that he does not understand our Kazakh reality. Therefore, he is ignoring the political component. Even though for everyone in Kazakhstan it is understood that the political component, and namely Nazarbayev’s attempt to take away my property, was a fundamental and determining factor. If this context is not considered, then the court cannot be fair in principle.