Kazakh national who claims he was tortured on Rakhat Aliyev's orders asks magistrate to order Maltese police investigate human rights violations.
Rakhat Aliyev was formerly the son of Kazakhstan's president before being stripped of diplomatic immunity in 2008. Karl Stagno-Navarra
A hearing before Magistrate Antonio Mizzi to determine whether police should investigate an alleged human rights violation against Kazakhstan multi-millionaire exile Rakhat Aliyev will be decided on a future date until the Commissioner of Police presents his findings by the end of 2012.
It will also be up to the Attorney General to present the court with written submissions on why Malta does not have jurisdiction to investigate Aliyev, who came to Malta to 2010 as the spouse of Austrian citizen Elnara Shorazova, and applied for the permanent residence scheme. He later recounced permanent residency status in January 2011 when he was granted a residency card under the Immigration Act as the spouse of an EU citizen, which gives him freedom of movement.
The deputy Attorney General said Malta was "out of jurisdiction" to investigate the complaints of alleged human rights violations made against the former Kazakh diplomat.
Donatella Frendo Dimech was appearing for the Commissioner of Police in a challenge brought against him in the court of Magistrate Antonio Mizzi by Kazakh national Pyotr Afanasenko, who claims he was tortured under interrogation and in prison on orders of Aliyev during the latter's tenure as deputy head of the Kazakh secret service.
Aliyev is being represented in Malta by defence lawyer Joe Giglio.
Frendo Dimch said Commissioner of Police John Rizzo had been "hounded" to proceed against Aliyev, who is married to Austrian national Elnara Shorazova, and lives in Malta under the surname Shoraz.
Afanasenko's lawyers in Malta have repeatedly called on the police to investigate Aliyev, but the police has so far refused to proceed, which is why a 'police challenge' was filed in the Maltese courts.
Pyotr Afanasenko and Satzhan Ibraev were bodyguards to former Kazakh prime minister Akezhan Kazhegeldin, and both claim they were subjected to torture under interrogation and in prison in 2000, in a bid to force their admission that Kazhegeldin had planned a coup d'état against President Nursultan Nazarbayev - then father-in-law to Aliyev.
The bodyguards claim Commissioner of Police John Rizzo and assistant commissioner Andrew Seychell have not taken their requests for an investigation into the allegations of torture into proper consideration.
Deputy Attorney General Donatello Frendo Dimech today told the court the police had given valid reasons as to why they could not proceed.
"The Police will never serve as a haven for whoever committed a crime, but cannot act recklessly by being irregular and act out of their jurisdiction," Frendo Dimech said.
"But you just cannot arrest, interrogate a person when you have no powers to do so, and most especially without any evidence in hand."
Frendo Dimech said that although the allegations are of crimes against humanity, "although heinous, we have no jurisdiction... otherwise the government could be sued for breaching human rights."
The deputy AG also said Aliyev - who is also being investigated by Austria on a double-murder he was found guilty of in absentia in Kazakhstan, before being stripped of his diplomatic immunity - enjoys freedom of movement but no further privileges.
"Malta never shied away from its responsibilities and will not do so now. The AG will never serve as a shield for anybody for justice not to be done... If only we had jurisdiction we would have taken action."
Frendo Dimech said that the biggest legal obstacle that mitigates against the Kazakhstan's government's challenge is the fact that it is claiming Aliyev committed "crimes against humanity."
She argued that Astana has never provided any evidence of such crimes against humanity. "Kazakhastan is a country with 16 million people, and there has been no evidence that Aliyev committed any'systematic crime' against that population, save three people who are putting their face to the challenge."
Defence
Lawyer Cedric Mifsud said that he is completely in disagreement with the Maltese government's defence not to act on Aliyev.
"Crimes against humanity were in fact committed. It was systematic torture," Mifsud said.
He challenged the Attorney General to come clean on Aliyev's statement to The Times last Sunday, where he referred to an allegation of a payment of a bribe to obtain his residence permit.
Mifsud said that the AG had not come up with any proof that Aliyev does not enjoy permanent residence status in Malta, rather than just a simple residence permit.
"Why would he have told The Times that'why pay for something which is mine by right?"
The claim concerns a bill of €150,000 invoiced by lawyer Pio Valletta to Aliyev for the procurement of residence after police flagged an Interpol alert against Aliyev.
Valletta was later sued by Aliyev and his wife for charging a €1.7 million fee for his services to move the Aliyev family from Austria to Malta; in his counter-claim Aliyev called in foreign minister Tonio Borg and former home affairs minister Carm Mifsud Bonnici to testify in court on the issue of Aliyev's residence permit.
Afanasenko's lawyer Cedric Mifsud accused Aliyev of giving orders to the bodyguard's custodians to be regularly tortured.
Afanasenko lives in Belgium, while the former Prime Minister travels from country to country, and so far has not come to Malta "because he is scared of Aliyev who had absolute power over the Kazakh secret service while he was still married to the President's daughter," Mifsud said.
"My client's arguments are not the fruit of his imagination... the Commissioner's refusal to investigate is 'short sighted' and does not send the right message overseas. Others like Aliyev, who would have committed similar crimes would see Malta as an ideal haven for them," Mifsud argued.
Deputy Attorney General Donatella Frendo Dimech's replica was again quite charged as she argued that Austria too did not extradite Aliyev because of the human rights situation in Kazakhstan.
The investigations in Austria concern matters under their jurisdiction, she said, adding that if Kazakhstan was truly concerned about 'war crimes' and 'crimes against humanity' then Astana should file the matter before the ICC at The Hague who would investigate and decide on arrest and extradition.
"But still Kazakhstan should provide the evidence that proves such crimes were committed by Aliyev."
Karl Stagno-Navarra
www.maltatoday.com.mt
