Torture complaint against Kazakh exile was not investigated by Maltese police

The Maltese Police Force had refused to investigate allegations of torture made against the former Kazakh diplomat Rakhat Aliyev, in new revelations that confirm the silence shrouding the Maltese government on the multi-millionaire who managed to obtain permanent residence status on the island.

MaltaToday can confirm that the Maltese authorities have been stonewalling on new torture allegations made to the police, and that pressure has been building up even on Foreign Minister Tonio Borg after a delegation of German MPs on a recent visit raised the matter of Aliyev's residence in Malta.

Documents in MaltaToday's possession have confirmed the Maltese police refused to investigate an official complaint of 'widespread or systematic torture' made by bodyguards employed by a former Kazakh prime minister, who accused Aliyev of commissioning their torture, allegedly as part of a vendetta on the former prime minister.

Lawyers for bodyguards Satjan Ibraev and Petr Afanasenko filed the complaint in February 2012, but an unsatisfactory reply by Assistant Commissioner Andrew Seychell has raised questions on the status of Aliyev in Malta.

In his reply, Seychell claimed the police could not exercise jurisdiction on Aliyev because he was not a 'permanent resident' in terms of the Immigration Act - a status that grants foreigners an ordinary residence permit - because he happens to be benefiting from freedom of movement by virtue of his marriage to an Austrian, EU national, Elnara Shorazova.

This claim is at best questionable, given that even the foreign ministry has confirmed that Aliyev benefits from a residence permit of sorts. Additionally, a civil court case filed by his former lawyer Pio Valletta has revealed that Aliyev secured 'permanent residence status' sometime in 2010 under the scheme that granted special tax status to foreigners who purchase property over the value of €116,000.

Additionally, Seychell - who has even been called to testify in the claim Valletta lodged in court for unpaid legal fees by Aliyev - stated in his reply to the bodyguards' lawyers that the facts they allege "do not constitute war crimes". But the lawyers claim their allegations specifically concern torture as laid down in the Criminal Code, and not "war crimes" which fall under a separate article of the Code.

While Austrian prosecutors have already been in Malta to interrogate Aliyev on the murder of two bankers in Kazakhstan for which he has already been sentenced, in absentia, by a Kazakh court to 20 years' imprisonment, it is not known why Maltese police are unwilling to start their own investigation into the torture complaint.

Further cementing the perception that the Rakhat Aliyev case is now a source of embarrassment for the Maltese government is the fact that the matter was raised with foreign minister Borg in a meeting he had with the head of the German-Maltese parliamentary group and MP Ernst-Reinhard Beck, which inquired about the Maltese position on hosting the former Kazakh diplomat.

"Beck brought the Alijev issue to the agenda of the German-Maltese parliamentary talks, because he wanted the assurance that prosecution of human rights violators would be supported in Malta," a source privy to the talks - who is requesting anonymity - informed MaltaToday.

On its part, the foreign ministry has told this newspaper that Malta would act on a European arrest warrant issued by Austrian investigators, and that it would "review" Aliyev's residence permit "should new irregularities arise" other than those under investigation by the Austrians.

So why has the Maltese government not acted on the complaints of torture presented by Ibraev and Afanasenko? Their former employer, former Kazakh PM Akezhan Kazhegeldin, and his lawyer Lothar de Maizière, the last democratically-elected East German Prime Minister, have insisted Malta must "clear its name and bring [Aliyev] to justice... Aliyev is super-rich and he can get around legalities". The confirmation that Aliyev has benefited from permanent residence status - the special permit for rich property buyers who benefit from generous tax rebates - emerges in Elnara Shorazova's court testimony in a €2.4 million lawsuit she filed against her former lawyer, Pio Valletta, who on his part filed a counter-claim against Shorazova and Aliyev claiming he is owed €1.5 million in legal fees.

Before their dispute on legal fees, in 2010 she was accompanied by Valletta to purchase a luxury Fort Cambridge apartment from Gap Developments, which Valletta happens to be a director of.

In his counter-claim, Valletta says Shorazova's Austrian lawyers had asked him to assist in procuring residence status for Aliyev "due to difficulties related to his political past".

And as details revealed by Valletta confirm, obtaining permanent residence status for Aliyev was no mean feat.

Because Aliyev's application ran into trouble when police flagged the former diplomat and once deputy chief of the Kazah secret service KNB, on account of an Interpol alert that had been issued against Aliyev. In a list of services he rendered to the couple, Valletta charged them nothing short of a cool €150,000 because of the "difficulties" he encountered in procuring the permanent residence status, "due to the non-approval from the police authorities" on account of the Interpol alert.

The Interpol alert has since then been repealed.

Aliyev - who goes by the name of Rakhat Shoraz in Malta - and Shorazova, have sued Valletta for the €2.4 million which he wired from Austria into a Maltese company. The case is now pending an agreement between the two parties to sort out the outstanding claims.

But this was not just any everyday civil case: foreign minister Borg, former home affairs Carm Mifsud Bonnici, the foreign minister's spokesperson Melvyn Mangion, and even Assistant Commissioner Andrew Seychell were called in to testify by Valletta as witnesses, ostensibly in connection with Aliyev's permanent residence status.

The foreign ministry is insisting that Alijev has a residence permit issued by the Austrian government, because he is married to an EU citizen, and as such enjoys freedom of movement and residence in Malta.

Allegations and denials

Aliyev, formerly the son-in-law of Kazakh dictator Nursultan Nazarbayev, lives in self-imposed exile in Malta after he was stripped of his position and immunity in Austria in 2007, when he was sentenced in absentia to 20 years in prison by a Kazakh court, on charges of kidnapping bankers Zholdas Temiraliev and Aybar Khasenov.

Aliyev denies the charges and claims he is a victim of the politically repressive state led by the oligarchs that form Nazarbayev's inner clan.

Ever since rejecting his extradition to Kazakhstan in 2007, Viennese prosecutors have carried out criminal investigations for money laundering and kidnapping. Austrian prosecutor Bettina Wallner questioned Aliyev at the Maltese courts for three days in April 2012 over the bankers' murder investigation.

The EU's Justice Commissioner Viviane Reding has also invited Eurojust to look into the Aliyev investigation and support investigators to resolve any cross-border differences to render the investigations effective. "The Commission is aware of the concerns of the victims of the crimes allegedly committed by Mr Rakhat Aliyev," she told German MEP Klaus-Heiner Lehne in February 2012.

And the Austrian lawyers representing the wives of the murdered bankers are last week presented information on Aliyev's activties to Malta's money-laundering investigators, the Financial Intelligence Analysis Unit. "We informed the FIUA in Malta because we believe there is a strong suspicion that Aliyev is managing his business activities from Malta," Gabriel Lansky, the head of law firm Lansky Ganzger Partner, told MaltaToday.

"The case is a European issue because the European Commission, the European Parliament and Eurojust are already involved in the case, so we are confident the Maltese authorities are going to carry out a serious and efficient investigation."

Foreign Minister Tonio Borg replies

"Rakhat Aliyev is the spouse of an Austrian citizen residing in Malta. According to EU legislation and in particular Directive 2004/38/EC, which provisions were transposed into Maltese legislation by means of Legal Notice 191 of 2007 (Subsidiary legislation 460.17), the spouse of an EU citizen has the right of  residence in any country where his or her spouse establishes residence on the basis of the exercise of his/her Treaty right as a worker, self-employed person, economically self-sufficient person or a student.

"Mr Aliyev possesses a permit to reside in Austria. Indeed he was also issued with a travelling document by the Austrian authorities. While he resided there, a request for his extradition by his country of origin Kazhakastan was refused by the Austrian Courts on the grounds that the charges proffered against him were politically motivated, particularly following attempts at bribery of witnesses, and actual forgery of documents to indict Mr Aliyev. In its judgment, the Austrian Court for Regional Matters Vienna also ruled that the charges smacked of political vindictiveness owing to Mr Aliyev' s political stand in favour of closer ties with the West when he occupied the post of Deputy Minister for Foreign Affairs and subsequently that of Ambassador of Kazhakastan to Vienna. Other attempts at extradition were similarly rejected by the Austrian Courts.

"The Department of Citizenship and Expatriates is responsible for issuing residence documents that reflect the right of residence under the above-mentioned legislation. The only alert notified to the Department by the Malta Police and which was based on information given by the Kazhakhastan Police, referred to the very charges which the Austrian Courts had described as politically motivated.

"Faced with the option of choosing to accept the judgment of an Austrian Court or the Kazakstan alert, the department and the ministry jointly opted to give more weight to the former.

"It is true that subsequent to the granting of the residence permit to Mr Aliyev, the Austrian authorities opened a new investigation at the behest of the Kazakhastan authorities. Representatives of the Austrian Prosecutor's Office  even met and interviewed Mr Aliyev in Malta. However, up to now, no proceedings of any sort have been instituted by the Austrian Prosecutor's Office. Nor has the simplified extradition procedure applicable between EU Member States, known as the European Arrest  Warrant, been activated by Austria.

"Should such a warrant be issued this will be executed immediately.

"The Kazhakhastan authorities have also been informed that the Maltese authorities are ready to cooperate through the Attorney General's office in Malta in any new investigation which they may wish to pursue.

"The position of the ministry and the department is that should any prima facie evidence emerge justifying any charges, other than the ones on which the rejected extradition request was based, Mr Aliyev's right of residence in Malta will be reviewed in accordance with the provisions of the above-mentioned legislation."