It has been almost a year since the main gold deposit in Kyrgyzstan — Kumtor — became the property of the state. It would seem that all domestic and international scandals and disputes ended there. But it is quite possible that the republic may face another round of proceedings.
The latest verdict of the Pervomaisky District Court of Bishkek sentencing a group of former senior Bishkek officials, including Aleksey Eliseev, may deprive Kyrgyzstan of control over Kumtor.
24.kg news agency tried to find out why this happened and how the court decision in absentia could be detrimental to the interests of the country.
New «gold» cases
It was reported on June 11 that on June 9 the court delivered a verdict in a criminal case initiated back in 2013 on the fact of the illegal signing of an agreement between Kumtor Gold Company, Centerra Gold Inc. and Kyrgyzaltyn JSC. Ten years ago, the authorities considered it a violation and initiated legal proceedings.
It is about the agreement signed in 2009, when a concession agreement was signed and Kyrgyzstan’s share in the Canadian company Centerra Gold Inc. was 33 percent.
By the court decision, former president of Kyrgyzstan Kurmanbek Bakiyev and officials who were involved in the signing of the document were sentenced to new prison terms, including the former deputy head of the Central Agency for Development, Investments and Innovations Aleksey Eliseev. He was sentenced to 30 years in prison with a fine of 15,000 soms to the state and confiscation of property.
Aleksey Eliseev himself immediately denied the existence of a verdict against him. He also recalled that in 2020 the UN Human Rights Committee decided that any criminal proceedings in absentia against him are legally impossible and illegal.
«Kyrgyzstan was forced to pay me financial compensation. This decision is in the process of execution by the UN Special Rapporteur (follow-up procedure. — Note of 24.kg news agency). Holding a trial in absentia against me by the Kyrgyz authorities in such a situation would have the most negative consequences for the country, including a multiple increase in compensation payments and serious problems with membership in UN institutions,» Aleksey Eliseev said.
According to him, the decision of the UN Committee is a public document, so no one in Kyrgyzstan can claim, even formally, that he is a fugitive from justice.
There is a verdict — no agreement
But it’s not even about the decision of the UN Human Rights Committee. The global agreement with Centerra Gold Inc. dated April 4, 2022 provided for the absence of any criminal cases against Aleksey Eliseev.
«One of the preconditions for the aforementioned agreement to come into force was the absence or termination of all criminal proceedings against all current and former members of the Board of Directors of Centerra Gold with Kyrgyzstan providing official confirmation of this, including a letter from the Prime Minister,» he said.
This condition also applies to Aleksey Eliseev, since in 2009-2010 he was a member of the Board of Directors of Centerra Gold.
Consequently, the agreement could enter into force only if all criminal proceedings against him were absent or terminated.
«The fact that the entry into force of this agreement and the transfer of Kumtor shares to Kyrgyzstan was announced on July 29, 2022 means the absence or termination of all criminal cases against me, initiation or resumption of which in the future is also strictly prohibited by this agreement,» the lawyer explained.
He noted that if, in fact, such a sentence had been passed against him personally, then the preconditions for the entry into force of the agreement would not have been met.
Or the Kyrgyz authorities provided the Canadian court with false documents, including a fictitious letter from Akylbek Japarov.
Aleksey Eliseev
What about the reality?
We decided to check the statements made by Aleksey Eliseev. The agreement between Centerra Gold and the authorities of Kyrgyzstan is not a secret document. It is in the public domain, as is the biography of Aleksey Eliseev himself.
Article 1 of the 2022 agreement is about the exemptions and obligations not to go to court.
The second sub-clause states that all former directors of Centerra Gold «without exception» are members of the «Kumtor Project Staff». They are exempt in full and forever from involvement in any claims and proceedings.
The appendix to the agreement also spells out all the terms used in it. It states that a claim means any lawsuit, investigation or proceedings of any kind, including those of a criminal nature, «in any jurisdiction in relation to any matter.» The state organizations are understood to include law enforcement agencies and the courts.
Moreover, the term of clause 1.2 of the general agreement is unlimited. Any lawsuit filed, and even more so a court decision with a verdict, is considered a violation of the terms of the agreement.
This means that Aleksey Eliseev is right: initiation of proceedings against him is a violation of the terms of the general agreement, not to mention the verdict.
Let’s note one more fact. Before the agreement took effect, the Cabinet of Ministers had to provide Centerra Gold with a letter of absence of any proceedings, including in relation to the staff specified in that clause 1.2. It also stipulates that failure to provide such a document before July 5, 2022 is the basis for termination of the agreement.
The investigation and conviction of the former member of Centerra Gold’s Board of Directors means that Kyrgyzstan has essentially violated this condition.
Does it mean that the agreement has been automatically terminated and the country has no rights to the shares of Kumtor Gold Company and Kumtor Operating Company?
There are two options. Either the country’s authorities really sacrificed control over Kumtor to convict Aleksey Eliseev, or the court made a mistake. It is hard to believe in the first one: it is unlikely that the Cabinet of Ministers is ready to suffer such losses. But the second option is quite possible. Even the Supreme Court once apologized for a mistake in a press release.
A week has passed, and there has been no reaction so far. Does this mean that Kumtor’s story for the state is not over yet?
