Open Letter to
Mr V.V. Putin, the President of the Russian Federation
Dear Mr
Putin,
It
appears impossible to deliver my appeal to you or your Administration through
official information media (post, website of the Administration of the
President, Address to the President). My multiple appeals and complaints are
redirected to the Government of Russia. It is obvious that the Government of
Russia cannot resolve my issue. Your participation is required under Article 80
§ 2 of the Constitution of the Russian Federation.
The
issue concerns the possibility to refer to the Intergovernmental Agreement
during the international arbitration proceeding in connection with the
violation of my property rights as an investor in Kazakhstan. The violation
took place when I had already been a Russian national and was permanently
living in the territory of Russia. The Government of Russia recognizes the
possibility to refer to the Intergovernmental Agreement during the
international arbitration proceeding, the Government of Kazakhstan denies such
a possibility. Under the Intergovernmental Agreement, in case of controversies
the issue shall be resolved by the parties (Governments of countries) or shall
be settled between them in an arbitration proceeding.
I had
been trying to obtain an exact answer to this question from the Government of
Russia for more than three years. The Ministry of Justice claimed that this was
the competence of the Ministry of Foreign Affairs of Russia. The Ministry of Foreign
Affairs of Russia finally refused to accept my letters. The Post Office of
Russia (EMS) refused to certify this refusal. On the fourth year, the Ministry
of Economic Development of Russia somehow recognized the possibility to refer
to the Intergovernmental Agreement in the course of the arbitration proceeding,
but refused to do any further correspondence with me, having informed of the
following: “Currently, no dates of consultations with the Kazakhstani Party
have been scheduled”. Without any success I tried to receive a reply from the
Government of Russia by way of judicial procedure, too. The courts of Saint
Petersburg, charitably speaking, did not facilitate the acceptance of the Claim
for examination.
It is
likely that the Government of Russia forgot that the limitation period for
civil cases constitutes three years. (Whereas the claim to initiate a criminal
case against particular state officials and heads of the Government of
Kazakhstan, under the Decree of which there was “violation of the procedure for
issue of equity securities” – Article 202 of the Criminal Code of the Republic
of Kazakhstan and “violation of the rules of transactions with securities of
joint-stock companies” – Article 205 of the Criminal Code of the Republic of Kazakhstan,
is not my intention, since the result is pointless).
I had
to terminate the first proceeding in the international arbitration, owing to
the lack of reply from the Government of Russia, and now I am a party to the
repeated international arbitration proceeding with the Government of
Kazakhstan, instituted by me. But I cannot endlessly be in the process of
arbitration awaiting the agreement between the Governments of two countries
regarding the difference in interpretation of the Intergovernmental Agreement.
Understanding the obvious fairness of
my claims, the Government of Kazakhstan tries to avoid examination of the
dispute on the merits in the international arbitration court, advancing the
arguments based on their own interpretation of concepts, which differ from
those recognized in the world. The Government of Kazakhstan justifiably reckons
on the situation that the Government of Russia will not hasten to interfere
with the dispute with the member of the Customs Union represented by the
Government of Kazakhstan.
The
Government of Russia, indeed, does not only hurry up to protect the interest of
the Russian national (I stopped thinking about it long time ago after receipt
of several run-around replies for three years), but even does not comply with
its obligations to investors being nationals of Russia, specified in the
Intergovernmental Agreement. More specifically, it does not provide any reply
on interpretation and application of the Agreement, and does not agree upon the
controversies arisen with the other party, which does not enable the Russian
nationals to exercise their constitutional rights and, in particular, the
possibility to protect them in the international arbitration court.
The
Government of Kazakhstan understands that it has violated the Laws of
Kazakhstan. It understands that it will fail in the dispute, and also realizes
that I have a legal right to refer to the Intergovernmental Agreement during
the arbitration proceeding, but the economic interests of Kazakhstan (even in
case of the amount of my Claim of USD 700 ths.) are ranked above the compliance
with the Laws of Kazakhstan, the Intergovernmental Agreement with Russia, the
reputation of the Government of Kazakhstan and simply the proper attitude to
investors. The Government of Kazakhstan considers normal such a state of
affairs, when my share, as an investor of Almatyteplokommunenergo, was
illegally reduced more than 84 times. And the part of the property in the
equity of the company, belonged to me, was decreased more than 29 times in
monetary equivalent and was, in fact, appropriated by state institutions, and
this while Almatyteplokommunenergo is a natural monopoly, and under the law of
Kazakhstan cannot be loss-making.
I am
well aware that it is waste of time and money to litigate in Kazakhstan with
the Republic of Kazakhstan. I have experience of two judicial actions (materials of one of which I sent to the
Government of Russia for explaining the reason for not litigating in Kazakhstan),
where I acted (as investor too) as the Claimant. Local Kazakhstani attorneys
engaged by me lost in the courts of all levels, taking in to account obvious
facts and the law at my side 100%. I would definitely win these cases in the
international arbitration, but no international arbitration proceeding was
possible for these cases. Unfortunately, Kazakhstan did not ratify the
Convention for the Protection of Human Rights and Fundamental Freedoms,
therefore, it is not possible to initiate a proceeding with the European Court
of Human Rights.
Explaining
for myself the reason for my problems, I would like to note that I stand for
the Customs Union, EEA, EurAsEC. And I think that any association when it is
established subject to legal interests of all nationals of these states, and,
it goes without saying, only in the interests of the nationals, it is
absolutely a sound practice. Unfortunately, my experience of more than
three-year communication with the Government of Kazakhstan at the level of two
Prime Ministers and the Ministers and at the level of the executives of the
Government of Russia makes me think about violation of these essential
conditions.
I have
always considered that compliance with laws is above economic interests. And I
am sure that nationals’ interests will not be violated, if the Governments in
their activity follow the rule: “The law is still the law, and we must follow
it whether we like it or not.” VLADIMIR
V. PUTIN Published: September 11, 2013 The New York Times.
In view of the foregoing, I ask you
to instruct the Government of Russia to conduct necessary consultations with
the Government of Kazakhstan as for differences in interpretation of the
Agreement between the Government of the Russian Federation and the Government
of the Republic of Kazakhstan on the Promotion and Mutual Protection of
Investments, as effective on February 11, 2000, which will enable me, a Russian
national, in accordance with the Constitution of Russia, to protect my rights
in the international arbitration court.
Best regards,
Konstantin Nikitin
Aprtm. 181, building 1, 11 Zvezdnaya str.
St.Petersburg, 196233, Russia,
December 27, 2013
konstnikit55@mail.ru
http://konstnikit55.blogspot.ru/
