The Constitutional Court has ordered the government, not to cooperate with the authorities in Kazakhstan in an investigation about Rakhat Aliyev, a former Kazakh ambassador and dissident who died in 2015.
The Constitutional Court however allowed cooperation to continue in respect of Aliyev's widow, who is facing fraud charges in her homeland.
Former OSCE ambassador Mr Aliyev had been tried in absentia and condemned to a prison term of 20 years by a Kazakh court over the murder of two bankers.
Mr Aliyev’s earlier marriage to the daughter of Kazakhstan’s President Nursulatan Nazarbayev was forcibly annulled and the man was stripped of his diplomatic immunity.
Following the trial, Mr Aliyev had fled to Malta before handing himself over to the Austrian authorities, where separate investigations into the alleged double murder were underway.
In 2015, Mr Aliyev died in detention. Prison authorities said he had committed suicide, though his lawyer insisted that the man had been murdered.
Having lost favour in Kazakhstan for voicing disagreement over proposed changes to the Constitution which would allow President Nazarbayev to become President for life, Mr Aliyev had continued to voice his dissent, even penning books about the dealings of his former father-in-law.
This spurred the Kazakhstan regime to spend millions on efforts to track down Mr Aliyev, issuing sanctions against the man and his wife and going to great extents to have the couple extradited to their homeland.
Criminal action was instituted in Kazakhstan against the couple for fraud and money laundering. By virtue of a judicial cooperation agreement between Malta and Kazakhstan, information and documents related to Mr Aliyev and his second wife, Elnara Shorazova were forwarded by the Maltese authorities.
However, lawyer Joseph Giglio, counsel to the couple, pointed out in court that proceedings in Kazakhstan were politically motivated, instigated by a personal vendetta and intended to quell dissent against the Kazakh regime.
Cooperation with Malta
The First Hall, Civil Court, presided over by Mr Justice Tonio Mallia, observed that the action was legitimate since the couple had been noted to have bought expensive properties which were not in tune with their limited income as Kazakhstan government employees.
Pointing out that this was not an extradition case but one in which the applicant was facing criminal action for serious offences, the court however declared that all evidence gathered when the accused had been absent from Malta, was in violation of the basic right to a fair hearing.
“Whatever was sent, was sent,” the court remarked, ordering that no such information was to be sent henceforth.
Moreover, it was observed that proceedings against Mr Aliyev had not been withdrawn after his death, a fact which ran counter to public order under Maltese law. For this reason, the court ordered the Maltese authorities not to cooperate any further in any proceedings against the deceased.
Exception for widow
Turning to Mr Aliyev’s widow, the court remarked that cooperation between signatories to the UN Convention for Reciprocal Assistance in Criminal Matters could not be withheld if the foreign counterpart offered a first-hand guarantee of an equitable and just process.
The Court concluded that it did not see the need to disrupt the investigation that was underway against Ms Shorazova by prohibiting the forwarding of relative information to the competent foreign authorities.
For this reason, the court ordered the immediate stop of “all assistance that the Maltese authorities have been requested to give against Rakhat Aliyev” whilst allowing this assistance to continue in respect of Elnara Shorazova, who was to be treated as a person accused at law. All evidence not gathered in the presence of the applicant was, however, to be withheld from the Kazakhstan authorities.
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