Kuwait is proud of its reputation as a reliable partner for investment to and from non-Gulf countries. It also vaunts a legal system compatible with the UK, the USA, and European jurisdictions. Its relationship with the United Kingdom is testament to that. Indeed, one of the major fraud courts of London has sat long and proud in a building owned by the Kuwait’s sovereign fund.
Kuwait wishes to build on that partnership. Currently it is asking the UK Government to ratify an extradition treaty. This would allow the easy transfer to Kuwait of those suspected of having committed crimes triable in the Kuwaiti jurisdiction. The UK’s current attorney general, Geoffrey Cox, is a very experienced and distinguished criminal lawyer. Doubtless he will be scrutinising the standard and consistency of Kuwait’s adherence to the Rule of Law – the set of standards that ensures that the innocent are not wrongly convicted, that the burden of proof placed on the prosecutor is adhered to, and that due process consistent with international norms is followed.
In writing this article about the Kuwait criminal law process, I rely directly on my own experience as a senior counsel in a relevant case. I am one of the legal team representing a Russian-born businesswoman, Maria Lazareva. She is a very successful investor and facilitator of major projects in Asia, Middle East and elsewhere: she has lived in Kuwait and operated her business interests from there for many years, and is the mother of a five year-old son. Maria is currently serving in Kuwait a ten-year prison sentence with hard labour: she was convicted of corruption, and awaits court resolution of related matters concerning $496million deposited in a bank in Dubai. This money was generated by a private equity firm she started known as the Port Fund.
I am not a lone voice in complaining of the treatment Maria has experienced at the hands of the Kuwait criminal justice system, and especially the prosecutor there. Also fighting her corner are leading lawyers from the USA, others from the UK, a diligent Kuwait team, and senior political figures in the USA. All of us understand and have some expertise in Rule of Law issues.
The evidence founding her prosecution and conviction was founded mainly on two strands of evidence.
The first strand consists of three documents, which the prosecutor and one purported expert witness relied upon as signed by Maria. The witness is an auditor from the State Audit Bureau. He claimed that Maria signed and submitted the three documents, all invoices, improperly to receive public funds from the Kuwait Port Authority for work the auditor alleges her company did not perform.
The second strand is the reliance by the prosecutor on the assertion that the Port Fund is ‘dirty money’, despite its being the subject of international investors and advisors of high repute, including at least two from the United Kingdom.
Unfortunately, outrageously and inexcusably, the evidence against Maria has turned out to be false to its core. Even more unfortunately, the prosecutor has failed to tell the courts that, in the light of that failure of the prosecution evidence, the case against Maria requires the quashing of her conviction and dropping all other charges.
How can I be so sure that the evidence has lost its previously claimed integrity? Because the prosecutor effectively has said so. In an extraordinary development in November 2018, the so-called expert auditor was charged with, and awaits trial for the forgery of the very three documents that he relied upon in his evidence against Maria. In addition, in no less than three letters to the Dubai authorities, the Kuwait Government asserted that the Port Fund money is ‘clean’ and should be returned to Kuwait for distribution to its beneficiaries (including Maria); and on 5 February the money finally was unlocked for release to Kuwait and distribution to the beneficiaries. Thus, the very foundation of her prosecution has collapsed into the dust, and her instant release should have occurred.