The story of the forcible expulsion of the wife and 6-year-old daughter of Mukhtar Ablyazov to Kazakhstan has become the number one topic of recent days. Was it extradition or deportation? Was it kidnapping or state-sponsored terrorism? Who is the offender and who is the prosecutor in this situation? These and other questions were addressed by a renowned human rights activist Yevgeniy Zhovtis, in an interview for the ‘Obshchestvennaya Pozicyya’(’Public Standpoint’) newspaper.
“You are free not to be a poet, but you have a duty to be a citizen”. Who wouldn’t remember this warning given by a great classic of Russian literature of the nineteenth century, Nikolai Nekrasov, to his contemporaries and descendants?
Citizens with a capital C are something that modern Kazakhstan, unfortunately, has a shortage of. The name of the human rights defender, director of the Kazakhstani International Bureau for Human Rights and Rule of Law, civil activist: Yevgeniy Zhovtis is well known not only throughout the world but also in the remotest Kazakh villages.
He is recognised not only as a lawyer, but also a Citizen and a Patriot of Kazakhstan with capital C and P. Our guest today is this very man – Yevgeniy Aleksandrovich.
– Yevgeniy Aleksandrovich, thank you for agreeing to take part in the interview. I suggest we start by asking about the feelings you experienced, the thoughts that first came to your mind when you heard about the arrest and extradition of Mukhtar Ablyazov’s wife and minor daughter to Kazakhstan.
– Initially, , many questions, including ones of a legal nature, began to form in my head. First, we should define some terms; extradition is the arrest and transfer by one state to another (upon request of the latter) of persons suspected or accused of having committed a crime or who have already been convicted, yet are seeking to evade punishment. Deportation is the forced expulsion of a person from one country to another, for example, in connection with his or her illegal stay in the country. Thus far, it’s not very clear to me whether they were extradited or deported.
If they were extradited, it is obvious that Kazakhstan had initiated a criminal case, and in this regard, Kazakhstan addressed Italy with a request that they be arrested and extradited. But then a question arises: Why was the little daughter arrested, despite the fact that she was in the custody of her relatives? and, most importantly, why was the extradition carried out so hastily, in violation of the procedure?
As follows from the obtained information, the decision to institute criminal proceedings was signed either on the 29 or 30 May, 2013. And if it is a criminal case connected to the allegedly forged documents (a passport, issued by the Central African Republic), then the situation becomes even more complex.
The point is that Kazakh law enforcement agencies could not possibly detect these counterfeit documents, as they are not located in Italy. And so, the documents were discovered by the Italian police. Under what circumstances did they come across these documents? Was the discovery made in connection with the search for Ablyazov himself? And, did the developments unfold in such a way that in the course of the operation, Ablyazov’s whereabouts were not determined, but that of his family members were, and as it transpired they were found to be carrying fake documentation? Did they report this incident to their Kazakh colleagues? And did the latter quickly make the decision to institute criminal proceedings?
The issue of the criminal case is particularly interesting. Article 325 of the Criminal Code of the RK covers the issues of forgery, manufacture and marketing of counterfeit documents. And save for Part 2 of this article, which concerns either the repeated manufacture of fake documents, or forgery by an organised group under preliminary collusion, this crime is categorised as a minor offence, which means, that the objective was disproportionate to the costs borne.
It is highly unlikely that Mrs. Shalabayeva (Alma Shalabayeva – the wife of Mukhtar Ablyazov – ed.) could be accused of manufacturing a fake passport. Rather, she could face charges of using it (Art. 325 section 3 of the Criminal Code of the Republic of Kazakhstan). In order for prosecutors to secure a conviction, its use would have to be proven, but first, there would have to sufficient evidence to prove that the document, was indeed, counterfeit. They would also have to prove the passport’s use, as in the case of mere possession of a forged document, criminal responsibility cannot be established. This could be particularly difficult in the event of its use in the territory of another state, as Mrs. Shalabayeva obviously did not use it within the territory of Kazakhstan. They must prove that she crossed the border with the use of the false passport, that she resided in Italy on the basis of the fake passport or that she used it as an identity document for any other purpose in any contact she may have had with government agencies, organisations or individuals. Another question is: why would she use it if she did have a valid, authentic passport issued by Kazakhstan as well as a residence permit (resident card) from Latvia.
Another possibility is that the criminal case has been instituted on charges of complicity in the use of some fake passports of Kazakhstan, as mentioned by the representative of the General Prosecutor in his briefing. But as far as we know, Mrs. Shalabayeva was not suspected or accused in that criminal case. And a verification of involvement cannot constitute the basis for her arrest and extradition. So why then, would they subsequently initiate a criminal case in connection with the Central African Republic documents?
That is, a simple question arises: which happened first – Kazakhstan’s request for the arrest and extradition of Mrs. Shalabayeva on criminal charges or her arrest by the Italian police with the allegedly fraudulent document and the initiation of a criminal case on this basis?
Apparently, we are dealing with the latter case. And so, the extradition would be excluded. Besides, extradition is a complex and lengthy process whereby law enforcement agencies and judicial authorities of the State to whom another state addresses a request to extradite, should carefully verify everything in accordance with the provisions of the UN Convention relating to the Status of Refugees and the European Convention on Extradition; the so-called extradition check. All actions can be appealed against several times, including a complaint to the European Court of Human Rights, which in such cases should apply the emergency procedure.
So, apparently, it’s deportation we are dealing with. Which then, immediately raises questions about the grounds for such a deportation. The presence of false documents, taking into consideration the possession of a valid passport of Kazakhstan and a card of residency of a European Union member country cannot serve as a legitimate basis. Also, in this case, there is a long list of rights of a deportee: the right to receive legal assistance, the right to appeal against the action, the right to have sufficient amount of time to prepare a defence of one’s rights and legitimate interests. Why weren’t all these rights observed in the European country on the basis of European law on rights and freedoms?
So my first reaction prompted a lot of questions.
– I would like to ask your opinion as a human rights activist: from the point of view of international law, how does the incident fit into the framework of international human rights law? By the way, an official representative of the General Prosecutor’s Office used the term ‘deportation’ and not ‘extradition’ during the briefing in Astana on 3 June. Maybe this event was nothing more than a case of blackmail? Maybe they wanted to ensure that the disgraced banker tycoon, being extremely dangerous to Acorda, would fall into their hands? Ablyazov’s spouse is not suspected of any criminal or other punishable offences, nor has an international arrest warrant been issued for her. At least, there was no mention of such a warrant during the briefing of the official representative of the General Prosecutor’s Office. And so, in this case, did the Italian special forces have the right to extradite her so promptly along with her minor daughter? Or is it her violation of the immigration laws of Italy, and therefore, the illegality of her stay in the country, as stated by the Kazakh General Prosecutor’s Office and the Ministry of Foreign Affairs, that poses her as an extreme international threat, far greater than that of international terrorists, as even they are not extradited so quickly.
– As I’ve already mentioned in my answer to the first question, it is probably correct to speak of deportation, not extradition. And subsequently, countless questions arise which should be posed directly to the Italian authorities. Why wasn’t the right to legal assistance and defence observed? Why wasn’t the right to an appeal against the actions and decisions of the officials observed? Why haven’t the reasons for deportation been made public before now, and why haven’t answers been given to the arguments of the presence of a valid Kazakh passport and Latvian resident card – a member state the European Union? Why was everything done in such a hurry – the whole operation was carried out in under two days? Why was the deportation carried out by use of a private jet? How did the private jet get to Italy, and leave heading towards Kazakhstan? Why was the daughter handed over to relatives first, and then taken away from them and deported along with her mother? Does this mean that the rest of the family are residing legally in Italy and Mrs. Shalabayeva and her daughter were the only ones in trouble? Why don’t law enforcement agencies of Italy take into account that Ms Shalabayeva and her daughter are family members of a person recognised as a refugee in the EU, and their deportation back to the country from which the head of their family fled, is, at the very least, a violation of obligations under the UN Convention relating to the Status of Refugees? Judging by these actions, I have no doubts, that the law enforcement bodies were not guided by the requirements of Italian law and international law, but by some other reasons.
– If Alma Shalabayeva was indeed breaking the immigration laws of this country by residing illegally in Italy, then she certainly shouldn’t have been deported to Kazakhstan, but rather to one of the African countries where she received her passport. Is this not so?
– Not necessarily. If an alien is a citizen of two or more countries, then the decision on where he or she should be deported to is to be made by the authorities of the state in cooperation with the States, whose citizenship the person bears. Another issue is that everything must be thoroughly explored, verified, legal assistance must be provided, all arguments must be evaluated and all circumstances established. In essence, none of the aforementioned has been carried out by the Italian authorities.
– It seems that the whole scenario including the man-hunt and deportation was pre-orchestrated, with some significant efforts on the part of Kazakh special services; in particular, with the tips of the foreign intelligence service ‘Syrbar’. Or am I wrong?
– I think that, to some extent, you are not mistaken. It is obvious that the operation of the law enforcement agencies in Italy was carried out in close cooperation with the Kazakh special services, at least in terms of provision of information. I have not heard anything of placing Mrs Shalabayeva and her minor daughter on the wanted list or that Interpol’s cards would be updated with their names etc. Not to mention the fact that the alleged violation is categorised as a low gravity offence. And if the passports were produced at the beginning of last year or the year before, then generally the case could be closed due to amnesty. I think that the information has been provided by Kazakh secret services to their Italian colleagues, that is, our bodies have established the location of Ablyazov’s family, they were aware of the fact that, perhaps, they carry allegedly fake passports of the Central African Republic, and tried to arrest Ablyazov with the assistance of the Italian police and to return him to Kazakhstan in this way, under the guise of deportation. And since he was not present in the house, the operation was carried out in respect of his wife and daughter.
– Now, Ablyazov’s spouse, according to the information given by the General Prosecutor’s Office of Kazakhstan, is under house arrest. Is this not a blatant violation of the constitutional rights of a citizen of Kazakhstan? After all, she is not under investigation! In the criminal environment, such a measure of the government applied in respect of Ablyazov would sound something like this: ‘Either you come to us on your own, or we will hit your family”.
– It’s not entirely true. She is under house arrest in connection with the institution of criminal proceedings against her. The house arrest is a measure of restraint, which is applied in accordance with the law only in connection with the institution of a criminal case. And so, the investigation is underway.
– Are Kazakh authorities entitled to prosecute the wife of Mukhtar Ablyazov because of allegedly forged documents, if it hasn’t been done by the country where she resided, which has remarkably promptly, i.e. within 24 hours, managed to get rid of her and her daughter?
– They are entitled to do so, because our penal laws provide for criminalising a Kazakh citizen who commits a crime abroad.
– Don’t you think that this smacks of state-sponsored terrorism?
– Well, the term ‘state-sponsored terrorism’ sounds too strong in this case. After all, no matter what grounds the Kazakh authorities are trying to present, Mrs. Shalabayeva along with her daughter are still staying with their relatives. Of course, at the same time, this whole operation raises serious doubts over whether the states participating in it were indeed guided by legal, rather than political, reasons. Here, I can clearly see ‘the ears of big-league politicians” sticking out of the whole matter.
– By the way, at the very time when a member of the European Union – Italy, in violation of all international standards, was transferring an arrested citizen to Kazakhstan, the EU President Barroso met with Nazarbayev. It is hard to imagine that he was not informed about the situation with Ablyazov’s spouse. What do you think plays a more important role here: is it politics, international diplomacy or economic benefits? Has the EU also put up with all that’s going on with human rights in Kazakhstan, as our country is one of the largest suppliers of energy resources to the world market?
– I have repeatedly stated that, in my opinion, in today’s world, freedom, democracy and human rights have four enemies: oil, gas, geopolitics and the war on terrorism. The national interests of various countries clearly prevail over principles and values. The policy of interests suppresses the policy of values and principles. So, of course, when such situations occur, Western politicians are maneuvering between the need to pursue their own national and international interests, and the need to reiterate the values and principles, which, from my point of view, enabled mankind to overcome the consequences of the Second World War. It’s not that the EU has simply accepted human rights violations in various countries around the world, including our own, as it still makes some statements, calls for change and adopts some resolutions. But there are particular interests, there are own policies and there is an understanding that the ability to have influence is often limited. It’s not possible to apply sanctions against everyone. So this is the way real, pragmatic politics works.
– As for your comment regarding the persecution of the initiators of the ‘Freedom’ award: should it really be this way? If the government believes that it has been funded by ‘the extremist’, Ablyazov, then the award itself should be banned? Maybe Acorda is actually against freedom as such?
– To be honest, this whole “struggle” with the award evokes doubts regarding the adequacy of its organisers. Presentation of the award cannot be an extremist act by definition, unless it is an “award for a terrorist attack”. The selection of winners is an expression of an opinion, for which our country does not provide criminal liability, except if it contributes to the stirring up all sorts of strife. And the legal reasoning that the award is ‘inextricably linked’ to the ‘Alga!’ party (the statement was taken from the warning presented to me by the prosecutor’s office) is, in general, contrived. What is ‘inextricably linked’ anyway? Are all freedom and democracy awards in Kazakhstan banned now? It’s neither the law nor common sense. It’s pure politics, and very primitive.
– Evgeniy Aleksandrovich, why has there been a recent increase in incidents of persecution of organisers of protest actions? Sometimes it seems that even in the actions of civil society against raising the retirement age for women are perceived by Akorda as being guided by Ablyazov’s provocative hand. They say he finances all of them.
– The government’s nervousness in face of the imminent change on its imperious Olympus is escalating. Also, social and economic problems are increasing. Finally, the ‘fat’ years of oil-based prosperity are gone and they have to look for resources and solve problems which are only going to grow. This is a reflection of the crisis in politics, the economy and the social sphere.
And since our government has become accustomed to talking to the people in the language of force and coercion, in its attempts to keep everything under control, it included the law enforcement measures to ‘restrain’ the most active persons who are able to lead the people towards the defence of their rights. This is the natural reaction of an authoritarian regime, incapable of conducting ordinary negotiations and a dialogue, but relying mainly on the power resource at its disposal. And the execution of these resources by law enforcement bodies is a totally different matter…
– I perfectly understand that you are a human rights activist, not a politician. Still, I would like to hear your opinion on the political situation in the country.
– Well, beside the fact that I am a human rights activist, I am also a citizen of this country, and participation in political life is not limited to participation or non-participation in the elections. I have an opinion about the political situation, and I express it. In order to do this, you do not need to be a member of a political party, it is enough just to be a citizen. I’m not fighting for power, but I do have my own opinion about politics and I express it.
I believe that the political situation in the country is heating up. This is due, as I have already mentioned before, with the inevitable change of the supreme power in the foreseeable future, and with a clear underdevelopment of economic reform compared to political, and with the growing crisis in the social sphere, with the fact that corruption is affecting virtually the entire state system, and with the aggravation of the international political situation. And this list is still not exhaustive.
It seems to me that, in the political sense, we are increasingly being dragged into the ‘time of troubles’. And it seems to me that, to some extent, the majority of the former Soviet countries are being drawn in as well.
– Thank you again for the conversation!
The interview was prepared by Zhumabike Zhunusova.
Source ‘Public Standpoint’ (the ‘DAT’ project), No. 21 (196) of 6 June, 2013