A prominent Kazakhstani journalist and opposition activist Zhanara Akhmetova could be illegally extradited from Ukraine to Kazakhstan at any time. According to our sources, the Prosecutor General’s Office of Ukraine is already preparing to place her under extradition arrest. On 19 May 2020, Akhmetova got a decision by the Supreme Court of Ukraine depriving her of the chance to be granted asylum. The decision was adopted in haste during the quarantine. It was also adopted without taking into account the arguments of Akhmetova’s lawyers.
A few days before, a new extradition treaty between Ukraine and Kazakhstan was ratified. Several disturbing facts point to the political order and extra-procedural cooperation of Ukrainian law enforcement agencies and Kazakhstani special services in this matter.
The U.S. Helsinki Commission, human rights organisations, Members of the European Parliament and the United Nations Special Rapporteurs recognize the political context of Akhmetova’s persecution and the inadmissibility of her extradition. The UNHCR Office in Ukraine calls for protecting Akhmetova from forcible return to Kazakhstan. However, the new Ukrainian authorities are one step away from ignoring their international human rights commitments for the sake of the dictatorial Kazakhstani regime, Russia’s closest ally.
Zhanara Akhmetova is a program director of the Kazakhstani opposition media “16/12” and one of the leaders of the opposition movement “Democratic Choice of Kazakhstan” (DCK). Kazakhstan is seeking her extradition from Ukraine, persecuting her for opposition and journalistic activities.
1. Three years fighting for political asylum
For three years, Akhmetova has been litigating with the Migration Service, seeking refugee status.
- In March 2017, Akhmetova along with her minor son arrived in Ukraine in order to seek political asylum. On 18 October 2017, the Migration Service of Ukraine issued a decision denying them asylum.
- Akhmetova challenged the decision. However, on 27 March 2018, the District Administrative Court of Kyiv dismissed her appeal.
- However, on 31 July 2018, the Kyiv Court of Appeal recognized the denial of asylum to be unlawful and imposed an obligation on the Migration Service to reconsider Akhmetova’s asylum application.
- The Migration Service did not agree with this and filed a complaint to the Supreme Court. On 17 September 2018, the Supreme Court rejected the arguments of migration officials and refused to open an appeal. Thus, after dealing with all the judicial instances, Akhmetova got the recognition of asylum denial to be illegal.
- The Migration Service was obliged to reconsider her case but did it only formally and denied the granting of asylum to her for the second time on 22 December 2018.
- Akhmetova again filed a lawsuit to the court, demanding that the court oblige the Migration Service to grant her refugee status. On 19 September 2019, the trial court dismissed her lawsuit.
- On 25 February 2020, the Sixth Administrative Court of Appeal of the city of Kyiv recognized the decision to deny asylum as illegal and obliged the Migration Service to reconsider Akhmetova’s case.
- The Migration Service again decided to prove its position in the Supreme Court. This time, on 14 May 2020, the Supreme Court of Ukraine sided with the Migration Service and recognized the denial of asylum to be lawful.The court’s decision was adopted in haste and in untypical way, which casts doubt on the transparency of the actions of the Ukrainian and Kazakhstani authorities in the case of Akhmetova.
2. Alarming signals: is Ukraine fulfilling a political order?
On 16 April 2020, the Supreme Court considered the complaint of the Migration Service – the cassation proceeding was opened. The court notified Akhmetova’s attorneys about the possibility of replying to the complaint of the Migration Service “within 10 days from the day of delivery of a copy of this decision with the extension of the period of time for quarantine” due to the Covid-19 pandemic. Her lawyers asked to participate in the hearing and were planning to reply within the time period set by the court.
However, a month later, on 14 May 2020, the Supreme Court made a decision in favor of the Migration Service – without the presence of Akhmetova’s attorneys as well as without taking into account their arguments. The decision was rushed which is not typical for the Supreme Court. On 19 May 2020, Akhmetova learned about the decision by mail. It is important to note that the Supreme Court had previously issued the opposite decision – on 17 September 2018, a decision to deny asylum was recognized as illegal by the Court. However, in May 2020, the Supreme Court didn’t mention this.
The events may indicate an interest in starting the extradition procedure as soon as possible.
The decision of the Supreme Court was adopted 15 days after the Ukrainian parliament had ratified new treaties on extradition and legal assistance in criminal matters with Kazakhstan. In addition, on 15 April 2020, a meeting was held between the President of Ukraine and the Ambassador of Kazakhstan, where they discussed the intensification of bilateral relations.
Several facts which indicate the active involvement of Kazakhstani special services in this case are also concerning.
- In 2018, a representative of the Kazakhstanispecial services demanded that Akhmetova meet with him. He threatened that Akhmetova’s relatives would be persecuted in Kazakhstan if she did not stop activity in the DCK.
- According to Akhmetova, there were two attempts to kidnap her in Kyiv and she supposes that it could be done by the order of Kazakhstani special services.
- Moreover, the work of the Kyiv office of the channel «16/12», where Zhanara is a director, was blocked with the help of special means.
- Kazakhstani law enforcement agencies know the address of Akhmetova’s residence in Ukraine, which may indicate that they are conducting operational activities or cooperating with the Ukrainian authorities.
3. Why does Akhmetova deserve asylum: a refutation of the arguments of the Migration Service
In official documents and during court hearings, the Migration Service provided arguments trying to justify the denial of asylum. However, these arguments are refuted by objective, confirmed facts. On 31 July 2018 and 25 February 2020, the courts referred to some of these facts pointing to the illegality of the denial of asylum.
A) Economic charges for extradition
The Migration Service believes that Akhmetova “is trying to avoid criminal liability” while being prosecuted “on the basis of non-political fraud charges”. Nevertheless, they ignore the arguments of human rights defenders and the international community that the economic case is just an instrument for political persecution.
Kazakhstan put Akhmetova on the wanted list in connection with the ‘fraud’ case (not returning the debt) in the period between 2005-2008. In this case, in 2009, a Kazakhstani court sentenced Akhmetova to seven years’ imprisonment. The execution of the court sentence was delayed until her child reaches the age of 14 (i.e. until 2021).
Akhmetova began to actively engage in journalism and opposition activities, after which the Kazakhstani authorities began to put pressure on her. Akhmetova was subjected to administrative fines three times for “posting an appeal for an unsanctioned rally on Facebook”. On this basis, in 2017, the Kazakhstani authorities canceled the deferral of execution of the “fraud” case. The true motive for such a decision is political. The Ukrainian court also drew attention to it in the decision of 31 July 2018.
However, the Migration Service of Ukraine notes that Akhmetova “has violated Kazakhstani law”. An interesting fact is that the Migration Service doesn’t care that the Kazakhstani law is contrary to international standards and is used to silence critics of the regime. Earlier, the Migration Service of Ukraine had denied the granting of asylum to Russian activists on the grounds that Russia, according to its legislation, is a “democratic and legal state”.
Kazakhstan demands extradition of Akhmetova due to “not returning the debt”, despite the fact that she repaid all civil claims. In 2016, an amnesty was declared in Kazakhstan, according to which Akhmetova should have been released from serving her sentence.
B) Activities in the opposition movement DCK
The Migration Service stated that “there is no information about Akhmetova’s participation in the opposition DCK movement,” and supposed that Akhmetova “creates the image of an oppositionist”. However, this is an outright lie. In the indictments, Akhmetova is labelled the “leader of the banned DCK movement”. Statements by the General Prosecutor’s Office of Kazakhstan state that Akhmetova “is spreading the propaganda of DCK’s ideas”.
On 13 March 2018, at the request of the Prosecutor’s Office, the Kazakhstani court labelled the DCK as an “extremist” organisation. The court stated that the DCK “incites social discord” and “forms a negative image of authorities”. Nevertheless, on 14 March 2019, the European Parliament adopted a resolution on human rights in Kazakhstan, in which it noted the peaceful nature of the DCK’s activities.
In 2018-2020, based on the decision to ban the DCK, unprecedented arbitrary detentions of peaceful rally participants took place in Kazakhstan. During this period, more than 6500 people were detained, and more than 40 people were criminally prosecuted.
“Reposts from the Facebook page of Zhanara Akhmetova became the basis for the criminal prosecution of several activists in Kazakhstan. This gives grounds to believe that a new criminal case has been initiated against Akhmetova on charges of ‘organising the activities of the extremist organisation’”, Ukrainian Helsinki Human Rights Union and other human rights organisations noted. In Kazakhstan, several opposition activists were detained for publicly supporting Akhmetova. The police threatened them with criminal prosecution.
PACE [1], [2], UN bodies [1], [2] and members of the European Parliament drew attention to the massive political persecutions in Kazakhstan due to the ban on the DCK.
C) The threat of torture and unfair trial in Kazakhstan
The conclusion of the Migration Service about the “absence of objective facts that would indicate the use of torture” in Kazakhstan is particularly blatant. This suggests that either information about the country of origin has not been analyzed at all, or obvious facts have been deliberately ignored.
Torture in Kazakhstan and impunity for its use are systemic. Annually, the NGO Coalition Against Torture registers approximately 200 incidents of torture in penitentiary institutions in Kazakhstan. In October 2019, human rights defenders cited data according to which one person dies as a result of suicide, torture or tuberculosis every day and a half in Kazakhstani places of detention. The UN Human Rights Council notes that Kazakhstan still does not have an effective mechanism for investigating torture, and most cases are closed.
The Migration Service completely turned a blind eye to events suggesting that if extradited to Kazakhstan, Akhmetova would face not only torture, but also death.
- Over the past three months, three people, supporting the DCK, have died as a result of law enforcement agencies’ actions. The first political assassination was the death of a DCK activist Dulat Agadil. On 24 February 2020, he was placed in a pre-trial detention centre in Nur-Sultan overnight, and on the morning of 25 February 2020, the police reported his death. The Kazakhstani authorities concealed the details of the investigation and ignored the obvious signs of torture on Agadil’s body which could be an attempt to cover up the crime.
- On 28 March 2020, an opposition activist from Aktobe, Amanbike Khairolla, was found dead. A farewell post was posted on Facebook account. However, previously, Khairolla repeatedly reported that her page had been hacked. On 20 March 2020, she sent a message to her friend with the words “they will kill me soon”. Due to her opposition views, Khairolla had been subjected to administrative fines, threats from unknown persons and interrogations by special services for a long time.
- On 15 May 2020, a 68-year-old activist from Aktobe, Serik Orazov, was detained by a police officer. The policeman held Serik by force and did not allow him to enter his residence. As Orazov was trying to come into the house, the officer grabbed him by the neck. According to relatives, when Orazov entered the apartment, he felt bad, then fell and died. Relatives demanded the prosecution of the policeman who provoked his death.
- In Kazakhstani detention centres, several DCK activists have been ill-treated – Kenzhebek Abishev, Almat Zhumagulov, Ablovas Dzhumaev, Oksana Shevchuk, Zhazira Demeuova, Aset Nurzhaubay. They were forced to testify about the activities of the DCK. Apparently, the same procedure Akhmetova will face.
In addition, over the past 7 years, the US State Department in its annual reports [1], [2] has emphasized the lack of a fair trial in Kazakhstan, especially in politically motivated cases. However, the Migration Service did not take this into account.
D) Ignoring conclusions of the international community
The Migration Service has demonstrated a selective approach to working with information sources. This body refers primarily to dubious blog posts that have clear signs of being ordered and violating journalistic standards. These publications are actively disseminated by Kazakhstani propaganda.
The Migration Service and the Supreme Court ignored the conclusions of human rights defenders and representatives of international organisations which noted the political nature of the persecution of Akhmetova, as well as the inadmissibility of her extradition. In particular, it was announced by:
- the head of the U.S. Helsinki Commission;
- international human rights organisations: Reporters Without Borders, the Italian Federation for Human Rights, Open Dialogue Foundation, Freedom House;
- the most prominent Ukrainian human rights organisations: Ukrainian Helsinki Human Rights Union, the Kharkiv Human Rights Protection Group, Kharkiv Institute for Social Research, Center for Civil Liberties, Human Rights Centre ZMINA, Expert Center for Human Rights, Association of Ukrainian Monitors on Human Rights Conduct in Law Enforcement;
- Kazakhstani human rights defenders: the Federation of Equal Journalists of Kazakhstan, the “AR.Rukh.Hak” (“Conscience. Spirit. Truth”) Foundation, the Kazakhstani International Bureau for Human Rights, Human Rights Protection Foundation Qaharman, and the human rights movement ‘405’. Also, a letter in support of Akhmetova was written by more than 500 Kazakhstani activists;
- European politicians: MEPs Julie Ward, Nacho Sánchez Amor, Petras Austrevicius, Vladimir Bilčik, Bernard Guetta, Patrick Lars Berg, Rasa Juknevičienė, Michal Šimečka, Maria Arena, Brando Benifei, Raphaël Glucksmann, Isabel Santos, Róża Thun, Tomáš Zdechovský, a prominent MEP Rebecca Harms, Members of the Italian Parliament;
- Akhmetova’s case appears in the report of the Special Rapporteur on the situation of human rights defenders as well as in the letter of the OSCE Representative on Freedom of the Media;
- Akhmetova’s case is considered in a report of a Subcommittee on Human Rights (DROI) on the “Misuse of Interpol’s Red Notices and impact on human rights”;
- In 2017, Ukrainian MPs from different fractions stressed that this case had political overtones. The case of Akhmetova was discussed in the Ukrainian parliament at meetings of the Human Rights Committee and the Committee on Freedom of Speech;
- On 24 January 2020, the UN Special Rapporteur on torture and the UN Special Rapporteur on the situation of human rights defenders called on the Ukrainian authorities not to extradite Zhanara Akhmetova, since she would be at risk of torture and politically motivated imprisonment in Kazakhstan. UN Special Rapporteurs emphasized that the extradition of a journalist and a Kazakhstani oppositionist will violate international conventions ratified by Ukraine. The UN representatives asked the Ukrainian authorities to comment on the case and report on steps being taken to protect Akhmetova’s rights. At the moment, there is no answer from the Ukrainian authorities in the database of UN documents;
- On 13 May 2020, the UNHCR office in Ukraine issued a document to Zhanara Akhmetova, which indicates that she is protected by the UNHCR and should be protected from forcible return to Kazakhstan.
4. The Prosecutor General’s Office is preparing the decision on extradition
Since the last appellate instance has issued a decision denying asylum, Kazakhstan’s extradition request is expected to be recommenced soon. Many years’ practice confirms that in extradition cases the unreformed Prosecutor General’s Office of Ukraine acts with accusatory bias, and the courts often “automatically” grant requests for extradition arrest.
According to our sources, in the next few days, the Prosecutor General’s Office is going to prepare the decision on extradition and to request a change of the preventive measure on extradition arrest. Akhmetova can be extradited to Kazakhstan anytime.
There is a high risk that Akhmetova may be expelled without the possibility of appealing the decision on extradition. For example, in November 2017, the prosecutor’s office had requested the extradition arrest of Akhmetova before she received the decision denying her asylum. At that time, thanks to the quick reaction of Ukrainian and international community, it was possible to stop the illegal extradition.
Extra-procedural expulsion (in fact – forced abduction) is a common practice in Ukraine. Over the past few years, such sad examples have included the cases of Aminat Babayeva, Vladimir Yegorov (both sent to Russia), and Alexander Frantskevich (sent to Belarus) who were expelled from Ukraine with the cooperation of special services.
On 20 May 2020, Zhanara Akhmetova sent a renewed application for asylum to the Migration Service, demanding consideration of the case under the new circumstances. In particular, Akhmetova points to the increasing mass repression and political assassination of DCK activists in Kazakhstan.
Extradition is not possible while the asylum application is underway. Akhmetova’s lawyers will attempt to block the extradition by appealing to the European Court of Human Rights (under Rule 39).
5. Conclusions and recommendations
Open Dialogue Foundation calls on the international community (in particular, EU, PACE, UN and national parliaments of the European Union states) to urgently inform the Ukrainian authorities that the extradition of Akhmetova will violate several ratified international conventions i.a., the UN Convention against Torture; the UN Convention on the Status of Refugees; the European Convention on Human Rights; the European Convention on Extradition; the European Convention on Mutual Assistance in Criminal Matters and the International Covenant on Civil and Political Rights.
We appeal to the President of Ukraine, the Prosecutor General of Ukraine, the Minister of Internal Affairs, the Minister of Justice, the Minister of Foreign Affairs and the Head of the Migration Service so that the new authorities pass the test of noncooperation with dictatorial regimes. Kazakhstan is not just an authoritarian state, but the closest ally of Russia, which “accepted Russia’s decision” regarding the accession of the Crimea “with understanding”. A new President Kasym-Zhomart Tokayev (Nazarbayev’s protégé) is of the same opinion.
In this case, the Ukrainian authorities are not just going to exchange human fate for benefits in bilateral relations between states. Akhmetova’s extradition will be primarily an indicator of how the new authorities are adhering to international human rights obligations. In addition, signs of corrupt cooperation with the Kazakhstani authorities in the context of the persecution of an opposition journalist discredit Ukraine’s image as a country undergoing law enforcement and justice reform.
We urge that the extradition of Zhanara Akhmetova be stopped immediately, that she be provided with protection, as well as that the facts pointing to extra-procedural cooperation between the Migration Service and the Security Service of Ukraine with the Kazakhstani authorities in this case be investigated.