ЕКСКЛЮЗИВ. Позовна заява Тимошенко до Фірташа в суд Нью-Йорка. Повний текст (англійською)
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United States District Court, S.D. New York.
Yulia TYMOSHENKO, and John Does 1 through 10, on behalf of themselves and all
those similarly situated, Plaintiffs,
Dmytro FIRTASH, Rosukrenergo Ag( Rue ) and John Does 1 through 100, et al,
No. 11 CIV 2794.
April 26, 2011.
Class Action Complaint
McCallion & Associates LLP, Kenneth F. McCallion (Bar# KFM-1591), 100 Park Ave,
16th floor, New York, NY 10017-5538, (646) 366-0880, Attorneys for Plaintiffs.
Plaintiffs Yulia Tymoshenko and John Does No. 1 through 10 (collectively referred
to as "the Plaintiffs"), by their undersigned attorneys, bring this Complaint on
behalf of themselves and all other similarly situated in Ukraine who have had
their fundamental human and political rights violated by defendants and others
against the named defendants and their co-conspirators who have, through various
schemes and concerted efforts, deprived plaintiffs and their fellow citizens of
Ukraine of various fundamental human and political rights recognized under
Plaintiffs bring this action pursuant to the Alien Torts Statute ("ATS") and the
Torture Victims Protection Act ("TVPA"), codified as part of the United States
Code, 28 U.S.C.s1350, as well as under the Racketeering Influenced and Corrupt
Practices Act ("RICO"), 18 United States Code, s 1964(c), to recover monetary
damages and other relief arising out of the defendants' concerted efforts to
defraud the Ukrainian people of their valuable natural resources, as well as their
political and human rights.
1. Plaintiff, YULIA TYMOSHENKO, the Ukrainian Prime Minister for the period from
2007 to 2010, has been subjected by the defendants to politically-motivated
investigations and prosecutions by the administration of the current Ukrainian
government, which is led by President Victor Yanukovych ("the Yanukovych
administration"), as part of a concerted attempt to discredit her, deny her basic
political and human rights, and to intimidate her associates and opposition-party
members from exercising their fundamental political and human rights.
2. Plaintiffs JOHN DOES # 1 through 10 are former members of the previous
executive administration of Ukraine during the time period when Plaintiff
Tymoshenko served as Prime Minister. They have all been subjected to
politically-motivated investigations and selective prosecutions by the current
Ukrainian administration under the leadership of President Victor Yanukovych. The
reason why their names are not specifically listed as plaintiffs in this matter is
that, in some cases, they are incarcerated under conditions that severely restrict
their ability to communicate freely, and both those who are incarcerated and those
that are not, but are under intense investigation, would likely be subjected to
further intimidation and persecution if their names were listed as plaintiffs in
3. Defendant DMYTRO FIRTASH ("Firtash") owns 45% of RUE, and a partner owns 5%.
The other 50% of RUE is owned by Gazpron, the Russian natural gas monopoly.
Firtash has admitted that he got his start in the gas trading business with the
assistance of Semion Mogilevich, the Russian organized crime boss. Firtash is also
a close associate and advisor to the current Ukrainian President, Victor
4. Defendant RosUkrEnergo AG ("RUE") is headquartered in the Swiss canton of Zug.
Firtash controls his shares in RUE through a company called Centragas Holding,
which has offices in Vienna, Austria and is affiliated with the DF Group, which is
also located in Austria.
5. Defendants JOHN DOES # 1 through 100 are other individuals and companies, some
of whose identities are presently unknown, who conspired with and/or aided and
abetted the named defendants as part of a conspiracy and racketeering enterprise
designed to deprive plaintiffs and other class members of fundamental political
and human rights, and to divert natural gas and other natural resources of
Ukrainian natural resources of Ukraine for the benefit of themselves and others
associated with their racketeering enterprise.
6. This Court has subject matter jurisdiction over this matter pursuant to the
Alien Tort Statute and the Torture Victims Protection Act, 28 U.S.C. s1350 with
regard to the Plaintiffs, who are Ukrainian citizens living in Ukraine and
elsewhere, as well as non-Ukrainian citizen who have been victimized and suffered
damages as a result of the defendants' racketeering enterprise, in that the claims
of the plaintiffs involve violations of international law, including the
deprivation of fundamental political and human rights, as well as the systematic
diversion of natural gas and other valuable natural resources of Ukraine for the
benefit of the defendants and their associates.
7. This Court also has jurisdiction over this matter pursuant to the Racketeering
Influenced and Corrupt Practices Act ("RICO"), 18 U.S.C. Section 1961 et seq. in
that the defendants conducted their multiple acts of fraud and racketeering
through a racketeering enterprise that had a continuity of structure and purpose
over an extended period of time.
8. This Court has subject matter jurisdiction over this matter with regards to
members of the Plaintiff class who may be United States Citizens, pursuant to the
Torture Victims Protection Act, Pub. L. No. 102-256, s 2(a), 106 Stat. at 73, 28
U.S.C.s1350, and pursuant to28 USC s1331 that the claims of the plaintiffs and
other class members involve federal questions and international law questions
which are incorporated into federal common law.
9. For many years, RUE bought cheap gas from Russia and Turkmenistan and had
Gasprom deliver it to the Ukrainian border, where most of the natural gas was sold
at a favorable price to the state-owned Ukrainian company, Naftogaz, and the rest
to European customers at global market prices. The rest of Ukraine's demand for
gas was supplied by Gazprom from Russian sources, also using RUE as the
10. In early 2009, defendants Firtash and RUE owed Gazprom, the Russian gas
monopoly, $1.7 billion for gas that Gazprom had already delivered but which
Firtash and RUE were storing in Ukraine, with the intention of exporting it to
Poland and Rumania.
11. On January 19, 2009, following negotiations in Moscow, plaintiff Tymoshenko,
who was then the Ukrainian Prime Minister, and Prime Minister Putin of Russia
reached an agreement that eliminated RUE as the middleman in the natural gas
transactions between Russia and Ukraine. It was agreed that Gazprom would transfer
RUE's debts to Naftogaz, which would then pay Russia the $1.7 million that was
owed by RUE and Firtash. In return, Naftogaz would receive access to the 11
billion cubic meters of gas that Firtash and RUE was storing in Ukrainian
government storage tanks. Under the agreement, the governments of Russia and
Ukraine would conduct their gas dealings directly with each other in the future.
12. Pursuant to the January 19th agreement, Naftogaz paid Gazprom $1.7 million for
11 billion cubic meters of gas and complied with all other provisions of the
13. Naftogaz Deputy Chairman Ihor Didenko signed the agreement on behalf of
Ukraine at the express instructions of then-Prime Minister Tymoshenko. However,
while he was in Moscow and about to sign the agreement, he received threatening
phone calls from Kiev warning him that he would "do time" if he signed the
14. The January 19, 2009 agreement, which basically eliminated RUE as a costly
middleman in the natural gas transactions between the two countries, was
celebrated by the Western European countries who were the major recipients and
users of the natural gas. Even the U.S. Embassy, which had described Firtash as a
"questionable character" in cables to Washington, expressed the view that the
elimination of RUE could introduce "transparency and accountability" into the gas
15. Firtash was understandably outraged by the January 19th agreement, which
basically eliminated one of the most lucrative aspects of RUE's business. He
complained to the U.S. Ambassador to Kiev that the agreement was "criminal" and
that if anyone other than Tymoshenko had made the agreement, "he would have
already been hanging from the street lights." One Firtash ally, Yury Boyko, energy
minister in the opposition's shadow cabinet and a former member of the
coordinating council of RUE, called the agreement a "betrayal of national
16. Firtash and his associates filed an arbitration claim with the Arbitration
Institute of the Stockholm Chamber of Commerce. Firtash claimed the agreement
between Russian and Ukraine was illegal. However, the Ukraine Government,
appearing confident that it would win the arbitration, arguing that Naftogaz, not
RUE, had actually paid for the gas, so there was no monetary consideration for
RUE's claim to the ownership of the gas.
17. While the arbitration proceedings in Stockholm were still ongoing, the Ukraine
government changed hands. In February 2010, Tymoshenko's rival, Victor Yanukovych,
became president. Since Firtash was one of the key financial backers of the new
president, he was immediately included in Yanukovych's inner circle.
18. Many of Firtash's associates were appointed to government posts in the new
Yanukovych administration. Two of his close friends and associates, Yury Boyko and
Serhiy Lyovochkin, became energy minister and the president's chief of staff,
respectively. In addition, Firtash's confident, Valeriy Khoroshkovsky, owner of
the Inter media empire, in which Firtash owned a purchase option at the time, was
named the chief of the SBU, the Ukrainian state security system and successor to
19. The entire management team of the state-owned Naftogaz were replaced with
managers loyal to Yanukovych, Firtash and the rest of their associates and inner
circle. One of the managers that was removed was Igor Didenko, who had signed the
January 19, 2009 agreement and was the subject of a politically-motivated
investigation that led to his arrest and imprisonment.
20. Since the entire management team at Naftogaz now reported to the Yanukovych
administration, the two parties that were facing each other in the Stockholm
arbitration were now friends and allies. Indeed, there was now really only one
side. Firtash was negotiating in the interest of RUE and himself, while the
Ukrainian government, which was supposed to be on the other side of the table, was
represented by Energy Minister Boyko, who was a longstanding friend and ally of
21. Not surprisingly, once the Ukrainian government changed hands in
February-March of 2010, it also its position in the Stockholm arbitration
proceedings 180 degrees, now "admitting" that the gas in dispute had always been
owned by RUE. As the Supreme Court of Ukraine later noted in its November 2010
written opinion on the matter, "Naftogaz of Ukraine admitted completely that there
were no legal reasons [for it] to acquire [the] disputed quantity of natural gas,
thus [admitting] the illegality of [the] seizure of [the] natural gas from
22. Upon information and belief, Naftogaz's "change of position" was due to the
fundamental conflict of interests, collusion and corrupt agreement between
defendants Firtash/RUE and the Yanukovych administration.
23. Since the Ukraine government and Naftogaz had basically defaulted by
withdrawing their opposition to RUE's claim to ownership of the gas, the Stockholm
Arbitration Tribunal ("the Tribunal") was left with no alternative to granting
RUE's claim. In June 2010, the Tribunal ruled that Naftogaz owed its former gas
supply intermediary, RUE, 11 billion cubic meters of natural gas, which RUE
claimed was illegally confiscated in January 2009 and which the Yanukovych
administration and the new management of Naftogaz did not contest. In addition,
the Tribunal fined Naftogaz 1.1 billion cubic meters, for a total award of 12.1
billion cubic meters of gas.
24. The Stockholm arbitration ruling in favor of Firtash's company (RUE) has been
widely perceived as a means of generating huge sums of cash with which Firtash and
his associates could continue to illegally fund the pervasive system of corruption
that encompasses every level of government, while at the same time suppressing
political dissent through intimidation, racketeering and other violations of
fundamental human and political rights.
25. When RUE moved to affirm the Tribunal award in the Ukrainian courts, Naftogaz
and the current Ukraine administration again essentially defaulted and failed to
provide the courts with any facts or proof that the recognition and enforcement of
the Tribunal award was contrary to the public policy of the state and would result
in untold hardship and suffering to the Ukrainian people. As the Ukrainian Supreme
Court noted in its November 24, 2010 decision, Naftogaz failed to furnish any
proof of even the most basic facts that should not have been in dispute, namely,
that the transfer of the natural gas to RUE "exceeds 50% of the total volume of
natural gas extracted in the country annually from [the] country's own resources,
and 50% of [the] annual needs of natural gas by the population." Accordingly,
since Naftogaz and the administration failed to provide the courts with any facts
or proof that would have provided a basis for the courts to reject the Tribunal
award as contrary to the public policy and welfare of the country, the Supreme
Court of Ukraine was left with no alternative but to recognize and confirm the
26. Another reason why the Ukrainian courts had to confirm the Tribunal award was
that the Yanukovych administration had succeeded in stripping away all remaining
vestiges of an independent judiciary and the Rule of Law. The administration, in
collusion with its allies in the Parliament, including the members affiliated with
the Party of Regions (POR), declared that the 2004 Constitution, which had been
established after the pro-democratic "Orange Revolution" had swept away the
corrupt administration in power, was procedurally "defective," and should be
replaced by the prior constitution from 1996, which gave much greater power to the
President and the executive branch of government.
27. The POR, with the full support of the administration, petitioned the Ukraine
Constitutional Court to set aside the 2004 Constitution in favor of the prior one.
While the matter was under consideration of the Constitutional Court, four of the
eighteen judges on the Court resigned on the same day, and two of the four
admitted that they had been pressured to resign. After these four judges were
replaced with more "reliable" judges, the Constitutional Court voted unanimously
during the summer of 2010 to set aside the 2004 Constitution and to replace it
with the prior one, giving the President the power of appointment over the Chief
Prosecutor's Office and virtually every other important office and branch of
28. In July 2010, under the guise of "Judicial Reform," the administration also
granted the Supreme Council of Judges certain powers not specifically enumerated
or even mentioned in the constitution, including the power to appoint the head
judges of all the courts, to control the assignment of cases and the allocation of
offices, computers and other resources, and to remove judges within one month's
period without hearing, the right to defend against the charges, or other indicia
of due process. Since the Yanukovych administration has the allegiance of at least
16 of the 20 members on the Supreme Council of Judges, through the increase powers
granted to the Supreme Council, the administration has virtual complete control
over the hiring and firing of judges, thus precluding the possibility of any
29. The administration has also consolidated its control over the judiciary by
establishing new courts, such as the High Special Court, which can hear both civil
and criminal cases, and is headed up by the President's hand-picked appointee, a
former POR member of the Parliament.
30. Perhaps the most powerful assault on any residual independence on the part of
the judiciary came when government prosecutors initiated a criminal case against
the younger daughter of the Chairman of the Supreme Court, Vasyl Onopenko, and
arrested Onopenko's son-in-law, Yevhen Korniychuk, an attorney and former Deputy
Justice Minister. On December 22, 2010, Korniychuk was summoned to the
Prosecutor's office from the hospital, where his wife had just delivered their
newborn child. At the time of Korniychuk's pre-trial detention and arrest in
December, 2010, Onopenko was the last Ukrainian in a high position of power not
politically aligned with the Yanukovych regime.
31. Korniychuk was accused of rigging the government procurement process in 2009
in favor of his old law firm, Magisters, as attorneys for Naftogaz, a charge that
both he and his former law firm vigorously denied. These charges had been
previously reviewed twice by the courts and found to be meritless. Korniychuk was
eventually released after 55 days in jail, after a clear "message" had been sent
to Supreme Court Judge Onopenko.
32. At about the same time, after the Prosecutor's office bought an obviously
politically-motivated criminal case against Onopenko's younger daughter, designed
to either intimidate Onopenko and/or force him to resign. Rather than discussing
the matter with the Prosecutor's office that was investigating and prosecuting the
case, Onopenko decided to go directly to the Prosecutor's boss, President
Yanukovich. The charges against Onopenko's daughter were dismissed the day after
Onopenko and Yanukovich had their meeting.
33. Another scheme hatched by the current administration to solidify control over
the Supreme Court was to reduce the number of Supreme Court judges from 49 to 20,
and to hold what has been referred to as "casting calls" for all of the judges to
determine which ones will stay on the Court and which ones will be dismissed.
34. The loss of an independent judiciary and resulting transfer of huge amounts of
natural gas from Naftogaz to RUE after the confirmation by the Ukrainian courts of
the Tribunal award had a dramatic and immediate impact on the Ukrainian economy
and the social well-being of its citizens.
35. Although the Tribunal award was technically against Naftogaz, since that
company is state owned, the payments were made with natural gas that was, in
essence, owned by Ukraine and its citizens. This represented a colossal disaster.
Not only had the gas that was now transferred to RUE already been paid for through
a transfer of $1.7 from Naftogaz to Gasprom, but the Ukrainian economy and its
citizens were now being deprived of a huge amount of the gas that was needed
domestically within Ukraine to heat homes, hospitals, schools and other facilities
critical to the well-being of Ukrainian people. In order to fill this shortfall in
supply of gas for domestic consumption, Naftogaz had to go purchase gas from
foreign sources; however, the price of the 12.1 billion cubic meters of gas had
increased dramatically since the pricing at the time of the original transaction,
which averaged out to $1.7 billion, and was now worth at least $3.5 billion.
36. In order to understand the enormity of the transaction, it should be noted
that the 12.1 billion cubic meters of gas that Naftogaz transferred to RUE
following the Tribunal award represented approximately 50% of the 25 billion cubic
meters of gas produced in Ukraine annually, and approximately one-sixth of
Naftogaz's total annual "gas balance" of 75 billion cubic meters, which includes
the gas shipped by pipeline into Ukraine from Russia and Turkmanistan.
37. Prior to the transfer of the 12.1 billion cubic meters of gas from Naftogaz to
RUE, the gas prices used for domestic consumption within Ukraine each year were
maintained significantly below the market price of the natural gas that was
exported from Ukraine to Western Europe. These domestic charges were stabilized at
below-market prices in recognition of the inability of individual citizens,
pensioners, homeowners, small businesses, hospitals and schools to pay for gas at
any price other than substantially below the market price.
38. This all changed when the Yanukovych administration took control in February
and March of 2010. Domestic gas prices were increased by 50%, which most
homeowners, pensioners, hospitals and schools could not afford to pay. As a
result, the gas pressure to homes, hospitals, schools and other facilities was
reduced to the point where the inside temperature of many of these facilities was
barely above the freezing level during the winter of 2010-2011. This not only
resulted in widespread pain and suffering among the Ukrainian populace, but also
dramatically added to the already serious health care crisis in the country,
particularly in the public hospitals.
39. Since Firtash and RUE did not pay either the $1.7 billion original price or
the $3.5 billion that the 12.1 billion cubic meters of gas was worth at the time
that it was recently transferred from Naftogaz to RUE/Firtash, the defendants
reaped a windfall profit of at least $3.5 billion when they sold the gas (for
which they had paid nothing) on the open market.
40. Upon information and belief, Firtash and his associates have used part of
those funds to purchase at least three petrochemical plants in Ukraine, thus
creating a virtual monopoly on the production of fertilizer in the country, which
is critical to the entire agricultural sector of the Ukrainian economy. Moreover,
Firtash is well positioned to acquire a huge portion of the agricultural farm land
that the current administration plans to sell off through privatization plans.
41. Also, upon information and belief, Firtash has used $600 million of the huge
financial windfall from the Tribunal award to exercise his option to buy a
percentage interest in the Inter media empire from his co-owner and close
associate Valeriy Khoroshkovsky, who is also the chief of the SBU, the Ukrainian
state security system.
42. The corrupt agreement with the current administration that permitted
Firtash/RUE to make a windfall profit of at least $3.5 billion also has permitted
those defendants to extend their control over the natural gas distribution sector
in Ukraine since, upon information and belief, Firtash and his associates owns and
controls approximately 75% of the regional gas distribution companies in Ukraine,
which are commercial, privately owned companies.
43. The failure of the current Ukrainian government to mount a credible opposition
during the Stockholm arbitration proceedings, due to fundamental conflicts of
interest, self-dealing, political manipulation and corruption, and the subsequent
rubber-stamping of the Tribunal award by the Ukrainian courts, is but one aspect
of the alarming deterioration of the rule of law in Ukraine. Another major aspect
is the selective and politically motivated investigation and prosecution of
virtually every significant executive in the administration of former Prime
Minister Tymoshenko. Indeed, the situation has become so alarming that a senior
official of the European Union, Stefan Fuele, warned the Ukraine government in
January 2011 not to use criminal law for political ends, a clear reference to the
prosecution of Plaintiff Tymoshenko and other opposition leaders by the Yanukovych
administration. Unfortunately, the protestations and warnings by the EU and
international human rights organizations have fallen on deaf ears.
44. Since taking power, the Yanukovich administration, aided and abetted by the
defendants and other co-conspirators, have launched a wave of arrests and
investigations aimed at Plaintiff Tymoshenko and her political allies in what most
objective observers consider to be a concerted campaign to intimidate, suppress
and ultimately eliminate any and all political opposition in Ukraine.
45. In addition to the investigations and prosecutions of Plaintiff Tymoshenko,
Yevhen Kornychuk, and the younger daughter of Chief Justice Vasyl Onopenko, as
described above, YURIY LUTSENKO, the former Interior Minister of Ukraine, was
arrested on criminal charges brought be the Prosecutor's General Office on
November 5, 2010, and remains jailed at the Lukyanivska prison in Kiev on
politically motivated and trumped-up charges of "overpaying" his former official
driver and other alleged "misappropriation" of state funds.
46. In addition, ANATOLY MAKARENKO, the former Customs Chief of Ukraine, was
jailed in July 2010 and charged on August 30, 2010 on politically motivated
charges, as part of the defendants' concerted effort to intimidate all political
opponents and to suppress political and human rights. Specifically, Mr. Makarenko
was charged with "suspicion of the abuse of official position" relating to the
customs clearance of 11 billion cubic meters of gas, which ownership was
challenged by defendant RosUkrEnergo ("UKE") in 2009.
47. Similarly, IHOR DIDENKO, the former First Deputy Head of the National Joint
Stock Company "Naftogaz of Ukraine" (" Nafogaz") and political ally of plaintiff
Tymoshenko, was arrested and jailed on July 9, 2010 by officers of the Ukraine
Security Service (SUB) on false and politically motivated charges as a "person
involved in a care regarding infliction of damages on the State of Ukraine"
relating to the claim to 11 billion cubic meters of gas that were submitted by RUE
for arbitration in Stockholm. Mr. Didenko, like Lutscenko and other political
prisoners who were targeted for selective prosecution, was incarcerated at the
notorious Lukyanivska prison in Kiev, which was designed to house 2800 prisoners,
but is now overfilled with 4000 men, including other political prisoners.
48. TARAS SHEPITKO, the former Deputy Head of the Department of the Kyiv Regional
Customs Office, was arrested on July 21, 2010 and selectively prosecuted on
charges of "misappropriation of property" relating to the transfer of the natural
gas claimed by RUE from Naftogaz.
49. TETYANA SLYUZ, the former head of the State Treasury of Ukraine, and TETYANA
GRYTSUN, the former First Deputy Head of the State Treasury, were also selectively
prosecuted on political-motivated criminal charges allegedly involving his "abuse
of official position."
50. On August 5, 2010, criminal proceedings were initiated against BOGTDAN
DANYLYSHYN, the former Minister of the Economy, on charges of abuse of his
official position relating to procurement procedures. He was granted asylum by the
Czech Republic, where he remains.
51. On August 21, 2010, VALERIY IVASHCHENKO, the former Acting Minister of
Defense, was arrested on charges of "abuse of power of official position."
52. This systematic suppression of the political opposition in Ukraine by means of
politically-motivated investigations and criminal prosecutions, forcing a number
of opposition leaders into exile or imprisonment, violates fundamental human and
political rights recognized by various international conventions and covenants,
and itself could provide the factual basis for a civil action in U.S. courts
against the government and various individuals for violations of international
CLASS ACTION ALLEGATIONS
53. Plaintiffs bring this action as a class action on behalf of a class of all
Ukrainian people that who have had their fundamental political and human rights
violated either through politically-motivated investigations, prosecutions and/or
incarceration, or who suffered damages as a result of the Tribunal award that has
severely depleted the national treasury and resulting in the looting and theft of
valuable national resources.
54. The members of the Class are so numerous that joinder of all members is
impracticable. While the exact number of Class members is unknown to Plaintiffs at
this time and can only be learned through appropriate discovery, Plaintiffs'
claims are typical of the claims of the members of the Class as all members of
each Class are similarly affected by Defendants' wrongful conduct in violation of
the federal, state and international law complained of herein.
55. Plaintiffs will fairly and adequately protect the interests of the members of
the Class and have retained counsel competent and experienced in class action and
56. A class action is superior to other available methods for the fair and
efficient adjudication of this controversy. Since the damages suffered by many
members of the Class may be relatively small in proportion, the expense and burden
of individual litigation makes it virtually impossible for the Class members to
seek redress on an individual basis for the wrongful conduct alleged. Separate
trials for the large number of plaintiffs would be difficult, if not impossible,
to judicially manage. Plaintiffs do not know of any difficulty which would be
encountered in the management of this litigation that would preclude its
maintenance as a class action.
57. Common questions of law and fact exist as to all members of the Class and
predominate over any questions solely affecting individual members of the Class.
Among the questions of law and fact common to the Class are: (a) whether the
defendants manipulated the Stockholm arbitration process in order to ensure that
the arbitration award would be favorable to Firtash and RUE, and thereby ensuring
that the Ukrainian treasury would be improperly charged for billions of dollars
worth of natural gas that had already been paid for by Naftogas; (b) whether the
defendants conspired together and with others to loot the Ukrainian national
treasury of funds through the manipulation of the Stockholm arbitration process in
order to generate cash that could be used for corrupt purposes; (c) whether the
defendants engaged in multiple acts of fraud and racketeering through a
racketeering enterprise that included the defendants and their associates and
co-conspirators both inside and outside the current Ukrainian government; and
whether the plaintiffs and other class members were damaged as a result of
defendants' racketeering acts.
58. The questions set forth above predominate over any questions affecting only
individual persons, and a class action is superior with respect to considerations
of consistency, economy, efficiency, fairness and equity to other available
methods for the fair and efficient adjudication of the controversy.
59. A class action is the appropriate method for the fair and efficient
adjudication of this controversy. The presentation of separate actions by the
individual class members could create a risk of inconsistent and varying
adjudications, establish incompatible standards of conduct for the Defendants,
and/or substantially impair or impede the ability of class members to protect
60. Plaintiffs are adequate representatives of the Class because each is a member
of the Class and the interests of each do not conflict with the interests of the
members of the Class he or she seeks to represent. The interests of the members of
the classes will be fairly and adequately protected by the Plaintiffs and their
Violations of the Alien Torts Statute and the Torture Victims Protection Act, 28
61. Plaintiffs repeat and reallege each and every foregoing paragraph of the
complaint as if fully set forth herein.
62. The Alien Torts Statute, 18 U.S.C. s 1350, grants aliens (non-U.S citizens)
the right to seek recourse and judicial relief in the United States courts for
violations of international law. Similarly, the Torture Victims Protection Act,
which is also codified in 18 U.S.C. s 1350, gives recourse to the U.S. courts for
victims of torture and other inhumane or degrading treatment.
63. The Universal Declaration of Human Rights, which was recognized by the United
Nations General Assembly in 1948, recognizes that there are certain fundamental
and inalienable human and political rights to which the citizens of all nations
are entitled, including, among other things, the right of the accused to a public
and impartial hearing by an independent and impartial tribunal pursuant to the
Rule of Law, equal protection and treatment under law, the right to be presumed
innocent until proven guilty according to law in a public trial at which he has
all the guarantees necessary for his defense, the right not to be subjected to
arbitrary arrest, incarceration or exile, the right to the full protection of law,
and the right not to be subjected to torture or to cruel, inhuman or degrading
64. In addition, the International Covenant on Civil and Political Rights, which
has been adopted by all United Nations member states, including Ukraine, protects
the freedoms of expression and association, without retaliation by the state
through arrest, incarceration of forced exile.
65. The rights protected by the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, as well as those articulated
by other treaties, as well as treatises and scholarly writings, are now generally
accepted by the international community of nations as part of customary
international law, and is a peremptory or jus cogens norm of international law,
i.e., the prohibition is specific, universal and obligatory and binding upon all
states and their citizens.
66. The defendants actions, including the subjecting of members of the political
opposition and other class members to arbitrary arrest, incarceration under cruel
and inhumane conditions, without food or water for extended time periods, and
without access to counsel for extended periods of time, constituted violations of
customary international law, for which the plaintiffs and other class members are
entitled to damages pursuant to the Alien Torts Statute and the Torture Victims
Protection Act, 28 U.S.C.s 1350.
67. In addition, the defendants' failure to defend the interests of the Ukrainian
people in the Stockholm arbitration proceedings, and the corrupt manipulation of
the arbitration process to ensure that defendants Firtash and RUE received an
award worth literally billions of dollars, and which resulted to the further
depletion of the public treasury and further impoverishment of the Ukrainian
government, its economy and its people, such as to deprive much of its citizenry
of the right to live with fundamental decency, also constituted violations of
customary i international law, for which plaintiffs and other class members are
entitled to damages pursuant to the Alien Torts Statute.
68. Defendants' violations of international law, the Alien Torts Statute and the
Torture Victims Protection Act were the proximate cause of the injuries sustained
by Plaintiffs and others similarly situated.
69. As such, all plaintiffs and other members of the class are entitled to recover
damages against the Defendants in an amount to be determined at trial.
Violations of the Racketeer Influenced and Corrupt Organizations Act ( RICO ) - 18
70. Plaintiffs repeat and reallege each and every foregoing paragraph of the
complaint as if fully set forth herein.
71. Defendants participated in a scheme to defraud plaintiffs and other class
members by conducting and participating, directly and indirectly, in the conduct
of the affairs of a Racketeering Enterprise ("the Enterprise"), which conduct and
activities affected foreign commerce, over an extended period of time through a
pattern of racketeering. including mail and wire fraud, which had to effect of
depriving the citizens of Ukraine the right to the full and honest representation
of their governmental representatives, without conflict of interest or corruption.
72. The defendants actions, including the use of the telephone, faxes, emails and
other communications between Stockholm and Kiev, and between other international
locations, were intended to further defendants' scheme to defraud the member of
the class by ensuring that defendants Firtash and RUE would win an arbitration
award that would deprive Ukraine and its citizens of substantial monies and
assets, and would further provide defendants with huge sums of monies whereby they
could finance their scheme to undermine the Rule of Law in Ukraine and to deny
plaintiffs and other opposition leaders of their fundamental human and political
rights, including the arbitrary arrest, incarceration and forced exile, and the
deprivation of political prisoners of food and water over extended periods of
time, the use of psychological torture of incarcerated political prisoners, and
the deprivation of political prisoners of their right to counsel and the
presumption of innocence, among other rights.
73. As a result of defendants' acts of racketeering, plaintiffs and other class
members suffered damages in an amount to be determined at trial.
(RICO CONSPIRACY- 18 U.S.C. § 1964(d))
74. Plaintiffs repeat and reiterate the foregoing paragraphs of this Complaint as
though fully set forth herein.
75. Defendants conspired with each other and with others with their Racketeering
Enterprise to deprive plaintiffs and class members of fundamental human and
JURY TRIAL DEMAND
76. Plaintiffs demand trial by jury on all issues so triable.
WHEREFORE, the Plaintiffs, by and through their attorneys, on behalf of themselves
and all others similarly situated, demand judgment against each of the Defendants,
a. Certifying this action as a class action, including any subclasses which this
Court deems appropriate;
b. Designating the law firm listed below as class counsel;
c. On the First Count for violations of the Alien Torts Statute and the Torture
Victims Protection Act, an award of compensatory, punitive and exemplary damages
to each of the named Plaintiffs and members of the Class;
d. On the Second and Third Counts for violations of the Civil Rico statute, an
award of treble damages (three times the actual damages) sustained by the
plaintiffs and class members as a result of defendants' racketeering acts and Rico
e. Awarding plaintiffs and class members their attorneys' fees and costs of
pursuing this action; and
f. Granting such other and further relief as this Court deems just and proper.
Dated: New York, New York
April 26, 2011
McCALLION & ASSOCIATES LLP
Kenneth F. McCallion (Bar# KFM-1591)
100 Park Ave, 16th floor
New York, NY 10017-5538
Attorneys for Plaintiffs
END OF DOCUMENT
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