Editor’s Note: This story has been updated to include comments from Austrian lawyers and an additional comment from Firtash’s defense team.
The saga has lasted nearly five years. Since 2014, the United States has been trying to extradite Ukrainian oligarch Dmytro Firtash to Chicago to stand trial on corruption charges. The case has slowly wended its way through the Austrian court system.
But now, as Firtash awaits a ruling by the Austrian Supreme Court, an explosive New York Times article has shed rare light on the American evidence. This has led Firtash’s defense to allege that U.S. prosecutors have effectively used false evidence of wrongdoing against their client.
And Austrian lawyers say the latest developments could influence the ruling.
A single slide
The defense’s accusation comes after a Dec. 30 article by The New York Times revealed the existence of a PowerPoint slide dating back to 2006 that supposedly outlined a proposal by a foreign partnership financed by Firtash to gain the right to mine aluminum in India.
That slide suggested that Firtash’s company, Bothli Trade A. G., had plans to curry favor with Indian officials by investing in infrastructure and employment in the Andhra Pradesh state and “respecting traditional bureaucratic process including use of bribes.”
The Times said that the slide was part of a due diligence report prepared by consulting firm McKinsey & Company for the aviation company Boeing, which sought a new source of the metal to produce its newest jet airliner.
But there may be a problem: prosecutors in Chicago presented the slide to the Austrian legal system as “clear proof” of the oligarch’s guilt. But it was not prepared by him or his associates, Firtash spokesperson Lanny Davis told journalists during a Jan. 8 telephone press conference.
Meanwhile, in the wake of the Times’ article, McKinsey confirmed that its employees authored the slide — and that the firm “has not served Firtash.”
The slide was an appendix to a 35-page document providing background on Firtash’s company and its operations and recommending further due diligence. That report in no way endorsed bribery as a business strategy, McKinsey said in a Dec. 31 statement on its website.
“The text was an ill-advised way for the authors to describe what they mistakenly understood to be general market conditions and should never have been used,” the firm said.
Road to extradition
That admission could have ramifications for Firtash’s case. The oligarch has been entangled in two extradition cases — one to the United States and one to Spain, both related to alleged illegal financial operations.
In the U.S. case, prosecutors in Chicago indicted him in 2014 as the mastermind of a scheme to pay $18.5 million in bribes to Indian officials. After being arrested in March 2014, Firtash was released upon paying $174 million in bail. Since then, he has lived under house arrest in Vienna, while his businesses in Ukraine are still operating.
Five months later, American prosecutors sent the PowerPoint slide — which they referred to as “Exhibit A” — to the Austrian Ministry of Justice, the New York Times reported. The document appeared to be a breakthrough for the prosecution. An Austrian judge, Christoph Bauer, had found the case against Firtash weak.
Bauer ultimately denied the extradition request, concerned that the United States’ desire to extradite Firtash was connected to political events in Ukraine. Firtash is one of Ukraine’s wealthiest and most controversial oligarchs, with significant holdings in natural gas, fertilizer, and the media.
He was reportedly close to two Ukrainian presidents: Viktor Yushchenko, who served from 2005 until 2010, and Viktor Yanukovych, who served from 2010 until he was driven from power in the 2014 EuroMaidan Revolution. U.S. prosecutors also allege that Firtash is an “upper-echelon” member of the Russian mafia. Firtash spokesperson Davis denies that charge, calling it “unsubstantiated by any facts” and “utterly false” and noting that it was not included in the public indictment.
From Bauer’s point of view, U.S. interest in arresting and extraditing the oligarch had waxed and waned as Yanukovych vacillated between signing an economic and political association agreement with the European Union and a different agreement with Russia in 2013 and 2014. Yanukovych’s refusal to sign the EU agreement helped trigger the revolution that ousted him.
After Bauer declined the extradition request, the U.S. appealed and a higher court overturned the decision. Now, the Austrian Supreme Court must rule.
(In December 2017, an Austrian court declined to extradite Firtash to Spain on money laundering charges, citing insufficient evidence.)
Meanwhile, the PowerPoint slide remains a key piece of U.S. evidence.
“This is our first time of knowing what’s behind the curtain of what the Chicago prosecutors have,” Davis said, noting that the defense cannot gain access to evidence against Firtash unless the oligarch comes to the U.S. to stand trial and potentially spends a significant amount of time in jail before getting his day in court.
“Not one word in that indictment alleges that Firtash or anyone else actually paid a bribe; it’s all about a ‘scheme,’” Davis added.
He suggested that prosecutors may have mistaken the PowerPoint slide for a document composed by Firtash and his associates. But in light of the Times’ article and McKinsey’s statement, Davis says that the U.S. government must admit its mistake.
Due to the current U.S. government shutdown, neither the U. S. Department of Justice nor U.S. state attorneys in Illinois could be reached for comment.
Austrian justice
It remains unclear when the Austrian Supreme Court will rule. Even if it determines that Firtash’s extradition is permissible, the Austrian Minister of Justice will have the final say as to whether the oligarch is sent to Chicago.
But the latest revelations could prove important, say two Austrian lawyers knowledgeable in extradition cases. Neither has any direct relation to the Firtash case.
After the Austrian appeals court ruled that Firtash could be extradited, the oligarch’s defense team filed an extraordinary appeal to the Supreme Court. To file such a case, a defendant must argue that one of his or her elementary rights was violated, says Nikolaus Loudon, a senior associate at Austria’s Wolf Theiss law firm.
Since the court of first instance denied extradition on the grounds that it believed the case against Firtash was politically motivated, Loudon believes that Firtash’s lawyers may have used this argument in filing the appeal to the Supreme Court.
If the Austrian courts believe that the PowerPoint slide is not a correct piece of evidence, “this might be a violation of a fair trial in the Austrian extradition proceedings,” Loudon told the Kyiv Post. “But, in particular, it could also be raised as an argument that (Firtash) cannot expect a fair trial in the United States.”
That could be grounds for not granting extradition.
Matthias Cernusca, an attorney at Lansky, Ganzger & Partner law firm, says it is difficult to forecast how the PowerPoint slide could influence the Supreme Court decision. But it could allow Firtash to file for a retrial, even if the Supreme Court goes against him.
“It’s something that might have an impact on the decision (of whether) extradition is granted or not,” says Cernusca. “So that could be grounds to file for retrial.”
