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Dissident’s widow loses bid to stop Malta assisting Kazakhs

Maltese authorities have been ordered to stop exchanging information with Kazakh counterparts with regards to murdered dissident Rakhat Aliyev, but not his widow

matthew_agius
Matthew Agius
10 October 2017, 7:00am
Rakhat Aliyev. After falling out of favour with former father-in-law and Kazakh dictator Nursultan Nazarbayev (top right) he lived in exile. His second wife Elnara Shorazova (bottom) insists he was killed in prison
Rakhat Aliyev. After falling out of favour with former father-in-law and Kazakh dictator Nursultan Nazarbayev (top right) he lived in exile. His second wife Elnara Shorazova (bottom) insists he was killed in prison
A constitutional court has ordered the Maltese authorities to cease exchanging information with their Kazakh counterparts with regard to murdered dissident Rakhat Aliyev, but not with regard to his widow, saying that it could see no reason to violate a judicial cooperation treaty to which both countries were signatories.

Aliyev had fled to Malta after being tried, in absentia, by a Kazakh court for the murder of two bankers while he had been serving as Kazakhstan’s ambassador to the OSCE in Vienna.

He was sentenced to 20 years’ imprisonment, stripped of his diplomatic immunity and his marriage to the daughter of the Kazakh president was forcibly annulled.

Aliyev lived in self-imposed exile in Malta after 2010, before turning himself to the Austrian authorities, which were carrying out their own investigation into the double murder. Aliyev died in an Austrian prison in 2015. Although an Austrian court had ruled his death as a suicide, his lawyer insists that he was murdered.

In a constitutional judgment handed down yesterday, Mr Justice Tonio Mallia put a halt to cooperation with the Kazakh authorities with regard to assistance and documents relating to Aliyev, but allowed the assistance to investigations into Aliyev’s widow to continue.

Lawyer Joe Giglio had argued that after Aliyev had expressed his disagreement with proposed changes to the Kazakh constitution, which would allow President Nazarbayev to become president for life, a series of spurious charges had been made against him and he had been stripped of his ambassadorship in Austria and his diplomatic immunity. Aliyev had continued to oppose the regime through the media and by authoring books revealing the dealings of his former father in law.

The Kazakh regime had embarked on a campaign of persecution against him, said his lawyer, spending millions on tracking him down and getting him extradited to Kazakhstan and on sanctions against him and his wife Elnara Shorazova.

“To date, these attempts have failed in every country they were made for numerous reasons, among them the fact that the allegations turned out to be false and/or fabricated and not least due to the lack of guarantees given by the dictatorial leadership in Kazakhstan that fundamental human rights would be respected,” argued the Maltese lawyer. He described the proceedings as politically motivated, instigated by a personal vendetta and to serve as a warning against dissent against the Kazakh regime.

Judge Mallia noted that Elnara Shorazova, who is also one of the plaintiffs, is the subject of ongoing criminal proceedings in Kazakhstan. “She says these procedures are a politically-motivated sham. This court does not have the competence to delve into this issue, but must see whether it should allow the Maltese state to continue to cooperate with an allegedly corrupt or unfair judicial system.”

The court said it was “not at all impressed” by the bizarre testimony of Kazakh lawyer Alpysbay Zhuspov, who had earnestly told the court that the former Soviet republic respected the rule of law and human rights, adjudging his deposition as “giving no hope of credibility.”

Despite this, however, the court said the accusations made against Shorazova did not appear to be completely baseless. “Neither do they have any valid juridical basis,” said the court, “but [the court] does not see why it should prevent another country, signatory to an international convention for reciprocal assistance in criminal justice matters, from continuing its investigations.”

The court said the request had been made legally and for a legitimate reason – as a deterrent to money laundering by criminal organisations.

It upheld the AG’s observations, which said that the two applicants had been salaried employees of the Kazakh government. Despite their limited income, they had bought expensive properties that surely exceeded their means. “This leads us to the argument that the assets found in Malta had been bought as a result of their illicit activities and therefore they cannot successfully complain that the freezing order is depriving them of their possessions, because the applicants acquired that property from illicit sources.”

It was in this context that the court declared a breach of the right to a fair trial. The court ordered that the documentation already in the possession of the Maltese authorities not be sent to Kazakhstan as it had been collected in breach of the applicant’s fundamental rights. It also brought to an immediate stop “all assistance that the Maltese authorities have been requested to give against Rakhat Aliyev” but permitted them to continue to give assistance and send documentation to Kazakhstan related to the investigation into Shorazova, who is to be treated as a person accused at law. 

Extradition requests had been turned down by other nations, but these refusals did not appear to extend to requests for assistance in investigations, said the court.

The court observed that this was not an extradition request and there had been no request for the woman’s return to Kazakhstan, where “it is alleged, torture is practised... Here we have a case where the applicant is being accused of a number of serious and grave crimes and this court does not see the need to disrupt the investigation that is underway by refraining from sending certain information to the competent authorities of that country.” 

Kazakhstan not being a signatory to the European Convention on Human Rights, did not mean that everything that happened in that country was wrong or that all criminal investigations were manipulated, said the court.

The court said it did not feel it should pass judgment on the state of democracy in Kazakhstan as it was “not that relevant to the merits of this case.” While accepting that the Central Asian state had been censured over its human rights record by nearly all interested international organisations, “the fact remained that the request was one for information relating to an investigation which had not been sufficiently proven to be politically motivated. Malta was not being asked to extradite a person, but only to provide assistance as laid out in a convention to which both countries are signatories,“ ruled the judge.

 

Hunter who became hunted

He was once the husband of Kazakh dictator Nursultan Nazarbayev’s daughter. In power, Aliyev was a multi-millionaire who controlled industry and also served as deputy director of the Kazakh secret service. But after the Nurbank murders, he was forcibly divorced and sentenced to prison. The persecutor became the persecuted.

In Malta, he fled from his Viennese home with his new wife and acquired several properties, first at Fort Cambridge, then in the reclusive High Ride area. 

His ‘persecutors’ were many. In Vienna, the prosecutor there started her own investigation into the Nurbank murders. The former East German prime minister, Lothar de Maizière, demanded that Aliyev be prosecuted in Malta for the torture of two bodyguards. The Kazakhs, whom Aliyev claimed were spying on him in Malta, financed a legal effort to cripple him financially.

Aliyev lived in fear of his safety, securing a friendly interview with The Times of Malta where he claimed he was being persecuted by the Kazakhs. But critics said he had secured permanent residence without the due scrutiny that was necessary.

In 2013, his wife Elnara Shorazova filed a police report against lawyer Pio Valletta, accusing him of misappropriating €2.4 million during a relocation of assets to Malta. He has since been acquitted. A year later, the Maltese courts approved a general freezing order on all of Aliyev’s assets on the island. German lawyers DSRB, acting on behalf of the Kazakh ministry of justice, filed its own report to the Maltese Attorney General, claiming Aliyev had shifted €100 million in alleged criminal gains during his time as deputy head of the Kazakh secret service, to Malta.

After failing to obtain Cypriot citizenship, Aliyev decided to hand himself over to Austrian prosecutors for his own safety, but died in 2015 in prison. An Austrian court ruled his death as suicide by hanging. His lawyer and family insist that he was murdered.

matthew_agius
Court reporter Matthew Agius is a Legal Procurator and Commissioner for Oaths. Prior to re...