Magistrate turns down request for police investigation of Rakhat Aliyev

Magistrate Antonio Mizzi threw out the request of Maltese and German lawyers to force the Commissioner of Police to investigate multi-millionaire, former Kazakh diplomat Rakhat Aliyev, over allegations of torture and crimes against humanity when he was deputy chief of Kazakhstan's secret service in 2000.

The police had repeatedly rejected the lawyers' pleas and in July 2012 informed them that the allegations lacked the legal elements that constitute a crime against humanity as detailed by the Maltese Criminal Code.

Lawyers Lothar de Maizière - East Germany's first and last democratically-elected prime minister at the fall of the Berlin Wall - and Malcolm Mifsud had filed an official police challenge in court, calling upon Magistrate Antonio Mizzi to instruct then Commissioner of Police John Rizzo to immediately commence investigations into the allegations that Aliyev had tortured bodyguards Satzhan Ibraev and Pyotr Afanasenko, in an alleged vindication against Kazakh prime minister Akezhan Kazhegeldin.

The complainants will be appealing within the decision within the seven day-statutory period. "They do not agree with the conclusions of the magistrate, however they do agree with the conclusion that the court would have jurisdiction over crimes against humanity," sources close to the complainants told MaltaToday.

In 1997 Kazhegeldin had stepped down as prime minister with the intention of challenging Kazakh president Nursultan Nazarbayev for the presidency. He also claimed that Aliyev as deputy chief of the National Security Committee, orchestrated charges against him that he was planning a coup d'état.

Two of his bodyguards were allegedly arrested and interrogated and were physically and psychologically tortured. In April 2000 they were charged with the illegal possession of firearms and sentenced to three years and a half in jail.

Prior to entertaining the claim however, Magistrate Mizzi said that procedures dictated that the application had to be presented under oath. This was not done, nor were affidavits from the bodyguards taken or presented at court. "The Commissioner of Police cannot kick off investigations based on a simple application without the consent of the Attorney General, which did not green-light these investigations," the magistrate decreed.

The court held that Aliyev is married to an Austrian citizen, Elnara Shorazova, so his  residence in Malta was justified by the fact that EU citizens enjoy the right of free movement within the EU. But the court could not uphold the claim made by the police that Aliyev was not a permanent resident in Malta and beyond the jurisdiction of local police.

Based on the submission of the Kazhageldin lawyers, the court could not conclude that there existed prima facie proof that Aliyev had committed crimes against humanity even if there could be suspicion that he had indeed committed crimes against the person.

The court also stated that the crimes against humanity allegedly committed by Aliyev happened between 1997 and 1999, however the Act of Law including crimes against humanity was included in Maltese law in 2002. This means that when the crimes were committed, they were not considered as a breach of Maltese law.

Aliyev is living in Malta under self-imposed exile as the husband of Shorazova, under the name Rakhat Shoraz. In April 2010 he left Austria in April 2010, where he had served as

Kazakhstan's ambassador before his father-in-law stripped him of his diplomatic immunity after he was sentenced in absentia to 20 years in prison by a Kazakh court, on charges of kidnapping bankers Zholdas Temiraliev and Aybar Khasenov. He had denied the charges and claimed he is a victim of the politically repressive state.

Lothar de Maizière was the man who in 1990 served as the only democratically elected Prime Minister of East Germany after the fall of the Berlin wall.

Dr Joseph Giglio appeared for Rakhat Aliyev.

Inspectors Dominic Micallef from the Legal Office and George Cremona from the Anti-Terrorism Unit appeared for the Police Commissioner.

Deputy AG Donatella Frendo Dimech appeared on behalf of the Attorney General's office.