Uralchem lawyer talks to RAPSI about Togliattiazot alleged embezzlement
A criminal case against the owners of PJSC Tolyattiazot accused of large-scale embezzlement that is heard in the Komsomolsky District Court of the city of Tolyatti for more than a year and a half has received interest from specialists and mass media. This is quite natural taking into account that in the course of the proceedings more than five hundred volumes of the case were presented, more than one hundred witnesses provided their testimonies, and a story of a mysterious file was told.
Alexander Nizov, the member of the Moscow City Bar Association, who acts on behalf of JSC Uralchem, talks to RAPSI about the nuances of the case.
Question (Q): Alexander Vladimirovich, at the trial that is currently taking place in the Komsomolsk District Court of Togliatti, you act on behalf of the plaintiff - JSC Uralchem. I would like to ask you a few questions related to the course of hearings in the criminal case against the owners of PJSC Togliattiazot.
Q: On June 18, the parties ended their debates in court. The court took a pause for sentencing until July, 2. How do you assess the process?
The hearing has taken a total of one and a half years. There were good reasons for such a long process. First of all, only the volume of written materials that were submitted to the court amounted to five hundred volumes. And at the stage of study of the written materials of the case, which preceded the interrogation of witnesses, it became clear that the defense had chosen the tactics of delaying the process as much as possible.
Almost immediately after the public prosecution started to announce the written materials’ file, the court was simply overwhelmed by complaints from defenders of the accused and representatives of TOAZ, the essence of which was that the announcement of the materials was too quick, according to our procedural opponents. It got to the point that the defenders used stopwatch for recording the time spent by prosecutors on the announcement of certain materials.
Q: How did the interrogation of witnesses go?
In total there were 222 witnesses in the list of the indictment. The value of testimony is usually different. Prosecutors decided to interrogate only the most valuable witnesses for the prosecution, but their number eventually amounted to slightly less than a hundred people. Considering that a significant number of witnesses at the time of interrogation continued to work at Togliattiazot, they were in a difficult situation, and, without any doubt, under serious pressure from the management of their company, which made considerable efforts to prevent the establishment of the truth in the criminal case during the preliminary investigation and at the trial stage the proceedings.
Defenders were allowed to read out several times the case materials that had been repeatedly announced before. But never for the entire process did the court refuse to interrogate defense witnesses who appeared before the court. The impression was that the defenders were just “dragging” people from the street, just to draw out the process for another day or two. During the trial, at least ten people - representatives of various scientific fields were brought into the court and questioned as specialists at the request of defense lawyers.
It should be noted coherence and high professionalism of the prosecutor's team. The active position in the process and the brilliant knowledge of the case materials allowed the prosecutors to receive from the witnesses valuable testimonies testifying to the defendants, often with the obvious intention of the witnesses to limit themselves to a set of formal information given to the court.
Q: Lawyers for the defendants claim that there were serious violations of the rights of the defense participants during the trial.
First of all, we should all understand that the allegations of violation of procedural rights during the process are often practiced to protect the client. This way, lawyers try to direct the court’s attention not to the circumstances established during the process, not to the evidence under investigation, but to a certain “list of offenses” of defense representatives, which is used as an essential element of pressure on the court. As a result, from the point of view of the defendants, any negative procedural event, for example, the refusal to satisfy the petition, is claimed to be a violation of their rights. Although, making such a decision, the court simply implements the powers granted to it by the applicable procedural law. It should be fair to note that during this process, the court periodically denied both sides in satisfying the petitions. We perceived these facts as nothing but working moments.
Q: But the defendants' lawyers stated that almost all of their petitions were rejected by the court.
At the request of defense attorneys at the trial stage, several dozens of volumes were added to the case materials. Will you really call it a violation of the defendants’ rights?
Q: Another accusation of lawyers to the court is that not all the defense witnesses were interrogated, including foreign citizens who could testify about the prices of ammonia and carbamide.
I have already said that the court interrogated all the witnesses whose court attendance had been ensured by defendants. In the final stage of the process, one of the lawyers really stated the need to urgently call in for interrogation about a dozen foreign citizens living in various states. In fact, after one and a half years of legal proceedings, in its final stage, the defender presented a list of foreigners whose names had not been mentioned before in any way at all. Who are they, what do they have to do with business? The defender did not provide any intelligible explanation. But he offered the court to call all these people for questioning via e-mail. Just imagine, to call a witness to the court by e-mail! And this is despite the fact that shortly before filing the petition, the same lawyer literally instructed the court on how to correctly call the witnesses to the court proceedings if they happen to be foreign citizens.
Q: In addition, the defense of the accused stated that the judge was rushing the process, trying to complete the case as quickly as possible.
Such statements are completely groundless. At some point in the process, the court, while going to meet, first of all, the defendants’ demands, went into a continuous criminal case review process. It was caused by the statements of the defenders that they needed more time to present necessary evidence. The court granted this time to them, having actually established that each working day would be devoted exclusively to the presentation of the evidence by the defense. And just imagine, the defenders immediately began to get sick, to participate in other processes, and just to disrupt court sessions.
At some point in the process, our side was forced to report abuse of rights by the defenders. In the end, not only advocates have rights. We, as a company recognized as a victim of a criminal case, as an organization who has suffered enormous material damage, have the right to consider a criminal case within a reasonable time. Delaying the process, disrupting the court sessions, bringing to the absurd the stage of presenting evidence to the court by the defendants, ultimately impeded the realization of our right to access to justice. I do not know how this procedural conflict would have ended, but as a result, the defense was exhausted, and it simply had nothing to present to the court as evidence or their imitation. The trial was declared over.
Q: Is it true that the price, more precisely, the “complex economic and legal” expertise, with which the defendants and their lawyers do not agree, was recognized as the basis of the accusation? And only because of it the prosecution didn’t fell apart.
The procedural law establishes that no evidence is pre-determined for the court. The assertion that a single proof of the thousands submitted to the court can influence the final decision or the complete denial of the accusation, contradicts both the letter and the very spirit of the law. The subject of proof in the current case is really vast. Expert opinion relates only to part of the circumstances to be proved.
A significant number of circumstances to be proved were established by completely different evidence - documents seized during searches and seizures, vast electronic correspondence, testimonies from victims and witnesses.
Q: But the defendants did not agree with the used methodology for determining market prices.
The defense, in fact, made desperate attempts to challenge the expert opinion during the process. It is the defenders who are the authors of the statement that the entire prosecution was based on the expert opinion. But it was them who presented evidence to the court and unequivocally stated the soundness and legality of the expert opinion. Several specialists were questioned at the request of the defense, and they offered the court their judgments on issues related to the examination carried out in the case. Moreover, each of them offered to use exactly his method of examination. In the end, the experts invited by the advocates entered into a correspondence discussion among themselves, and each of the speakers defended his own point of view, opposing everyone else.
Q: They say, in addition, that the trial allegedly interferes with the normal operation of Togliattiazot. Is it true?
I am a lawyer and not a production worker, so it is difficult for me to imagine that the current process negatively affects the work of the company somehow. But what really had affected it negatively for many years was the enslaving 20-year contract for the exclusive sale of products to a single buyer, price dictation, systematic withdrawal of funds, under-financing, poor technical condition of the units and capacities idliness, illegal sale of valuable production assets, which Togliattiazot is now forced to rent from offshore. As you understand, the actions of its owners and managers brought TOAZ to this state, but not the court. On the contrary, Togliattiazot acts as a victim in the court, and this speaks for itself.
Q: Recently, the defenders of the accused have started to assert that the indictment was allegedly prepared by Uralchem, and they even refer to a certain electronic file.
This is a very interesting story. At the very beginning of the process some defenders declared the need to return the criminal case to the prosecutor, saying that the text of the indictment had been prepared beforehands by Uralchem. While proving their words, they referred to the "properties" of a certain file that they possessed. And some obviously biased media picked up this statement and tried to present it as a sensation. And advocates spoke of it as an established fact throughout the process. But the curiosity is that no one but the defenders themselves had seen this file, and they did not submit it to the court in any way. The law understands the indictment as a procedural document, executed on paper, signed by the investigator, approved by the prosecutor and physically located in the criminal case file, and it is to be presented to the court exactly this way. This is the indictment as it is. The law doesn’t say a single word about any files, properties and other electronic kind-of-wisdom.
Q: So you say that the defense lawyers' statements about the existence of the file of the indictment created by Uralchem are an allegation?
Yes, this is an unsubstantiated allegation. You know, if the defense physically presents something to the court in support of its statement that the investigator is not the author of the indictment, then we will investigate all the circumstances related to such a statement, including the falsification of evidence in criminal proceedings by the defenders. I think the defenders understand this perfectly, so their loud statements eventually turned into some kind of near-procedural chatter akin to gossip.
Q: The criminal case under art. 159 of the Criminal Code of the Russian Federation, which is now being heard in the Komsomolsk District Togliatti Court, is said to be initiated upon the application of Uralchem. On this basis, the defendants accused Uralchem of attempting a raider seizure of TOAZ, and the law enforcement agencies are almost all complicit with the raiding. What could be the basis for such charges?
What kind of raiding are we talking about? I would like to remind you that the claims for compensation for harm caused by the crime and addressed to the defendants, are only partly initiated by Uralchem in its own interests. A significant part of the requirements, more than ten times larger than the requirements of Uralchem, was declared in the interests of the Togliattiazot company, that is, in the interests of another legal entity, where Uralchem possesses a modest shareholding. No claims related to the property of the enterprise or its owners were announced by us. We are only trying to recover the material damage caused to our company in connection with the commission of a crime. In the end, we are a commercial enterprise and will not allow anyone to rob us.
Q: Recently, the media reported on the arrest of Alexander Popov, chairman of the board of Togliattihimbank JSC, in connection with a new criminal case initiated under Article 210 of the Criminal Code of the Russian Federation - the organization of a criminal community or participation in it. And again, he accuses him of unreasonableness, and even compares his case with the “case of Ivan Golunov.”
I only would like to ask what evidence did the police give to Mr. Popov? A few tens of millions of dollars? I am not aware of the details of this new business. The investigation has just begun, we will follow the development of events. I do not exclude other arrests in this criminal case.
Q: On July 2, the Komsomolsky District Court is expected to begin sentencing. What do you think it can be?
I will answer directly. We, as the injured party, believe in Russian justice. And we believe that the court, having figured out all the intricacies of this certainly difficult criminal case, will convict all the defendants and will satisfy our claims, which I want to remind you, to the greatest extent are declared not in our own interests, but in the interests of Togliattiazot, that has been simply robbed by its current owners. They have forced a huge team of a company to work for years exclusively in order to realize the criminal intent of an organized group headed by representatives of the Makhlai family.