Communicated on 2 September 2020
Published on 21 September 2020
THIRD SECTION
Application no. 51853/19
Elnara SHORAZOVA
against Malta
lodged on 1 October 2019
STATEMENT OF FACTS
1. The applicant, Ms Elnara Shorazova, is an Austrian citizen (as of 2005), who was born in 1976 and lives in Vienna. She is represented before the Court by Dr J. Giglio, a lawyer practising in Valletta.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.Background to the case
3. The applicant is the widow of Rakhat Aliyev also known as Shoraz (hereinafter referred to as R.A.). The latter was, prior to his marriage to the applicant, married to D.N. the daughter of Nursultan Nazarbayev (hereinafter N.N., who occupied a high ranking position in the Communist party of Kazakhstan in 1983 when R.A. got married). In 1991 N.N. became the President of Kazakhstan, and remained so until March 2019.
4. Between 1991 and 2002 R.A. was appointed by his then father-in-law to various government positions, until tensions arose between them, allegedly following United States reports that indicated that R.A. was being considered as a successor to N.N. At that point, in 2002, R.A. was appointed as ambassador to Austria. In 2005 R.A. returned to Kazakhstan as Vice‑minister of Foreign Affairs.
5. Following the murder of the Kazakhstan opposition leader in 2006, and suggestions by certain Kazakh mass media (controlled by R.A.) to introduce democratic reform, tensions again arose between R.A. and N.N. Consequently, R.A. was again appointed as ambassador to Austria.
6. In May 2007 N.N. announced constitutional changes which would have further strengthened his position as ruler of Kazakhstan. R.A. openly expressed his criticism to such changes and declared that he would run for president in the 2012 election. In the same year he learnt that he was divorced from his wife D.N., although allegedly he had never been notified of the divorce procedure, in which he claimed his signature had been falsified. D.N. took control of all their property and the care and custody of their three children.
7. Immediately thereafter, the Kazakh government issued against R.A. an arrest warrant and a red notice through Interpol and lodged various requests of legal assistance with western authorities which continued until R.A. died in prison in Austria in February 2015.
8. In the meantime in 2009 R.A. married the applicant and during the period 2009-2013 took residence in Malta, where he continued to advocate for democratic reforms in Kazakhstan.Proceedings in European StatesAustria
(a) First extradition request
9. On 25 May 2007 Austria received an extradition request from Kazakhstan, on the basis that R.A. and others had committed the crimes of kidnapping several people, appropriating their assets through blackmail and using forged documents.
10. The request was denied on 7 August 2007. Having considered reports from the U.S. Department of State and Human Rights Watch, the Austrian court considered that there was reason to believe that the criminal proceedings in Kazakhstan would be conducted in a manner contrary to the European Convention on Human Rights (in particular its Articles 3 and 6). Indeed, already during the extradition proceedings in Austria, the Kazakh authorities had repeatedly breached the principles of due process. It also noted that a certain A.D. had testified that he had been paid one million United States Dollars (USD) to testify against R.A. and was offered another one million USD to procure information about the way R.A. was being guarded in Austria and whether his security agents were carrying arms. Further, suspicions arose as to the divorce proceedings of R.A. in which his signature had been forged, which raised concerns in respect of the way in which criminal proceedings instituted would be carried out. The court further suspected that the criminal prosecution of R.A. and others connected to him had been the result of his political opinions which ran counter to those of the President of Kazakhstan.
(b) First criminal proceedings
11. In 2007 criminal proceedings were instituted against R.A. on the charges of money laundering, in particular, concealing assets originating from crimes under the Kazakhstan criminal code. On 11 July 2007 a freezing order issued in those proceedings was revoked as no evidence showed any criminal activity. The file showed that the money laundering suspicions were notified by banking institutes solely on the basis of reports in the media, and the cash flows at issue, at least partly, were traceable on the grounds of the documents submitted.
12. The criminal proceedings were discontinued on 29 August 2007.
(c) Second criminal proceedings
13. In 2010 a further criminal investigation ensued against the applicant and R.A. based on claims of money laundering by the Kazakh authorities. The proceedings were discontinued.
(d) Second extradition request
14. In 2011 the Kazakh authorities requested the extradition of R.A. to expiate his sentence (see paragraphs 31 and 32 below in relation to the proceedings in Kazakhstan).
15. On 16 June 2011 the request was refused, it was noted that the judgments had been given in absentia and that it could not be ruled out that the case had a political character.
(e) Third criminal proceedings
16. In 2014 the Austrian authorities issued an arrest warrant against R.A. and other persons, and the former voluntary submitted himself to the authorities. R.A. and the applicant had left Malta precisely for this purpose. The proceedings in respect of R.A. were discontinued in 2015 before the start of the trial as he was found dead in the Austrian prison.
17. By an appeal judgment of 14 September 2016, the co-accused persons were acquitted of the charge of murder but found guilty of inter alia, kidnapping, threatening and ill-treating other persons, with the aid of R.A. In its judgment the court noted that here had been considerable indications that the victims (two bank managers) were killed by the Kazakh Security Service and that the entire abduction and murder case was construed retroactively in order to eliminate R.A. and persons close to him. Further, it could not be ruled out that official Kazakh authorities may be behind a foundation which had invested about ten million euros (EUR) in the persecution of R.A.Germany
18. In 2010 a criminal investigation was initiated in Germany against the applicant and R.A. based on claims of money laundering by the Kazakh authorities.
19. The proceedings were discontinued on 5 January 2016 as the crimes at issue were not ascertainable.Liechtenstein
20. In 2013, and again in 2015, the Kazakh authorities sought legal assistance from Liechtenstein, as a result of which criminal investigations were initiated against the applicant and R.A. in Liechtenstein and a freezing order was issued on 16 December 2015, for two years, in relation to their property.
21. The investigations were discontinued on 29 June 2015 and the freezing order was lifted on 18 December 2017 as the requesting State had not substantiated a motion for the extension of the order.
22. The request for legal assistance was refused by the Royal Regional Court on 30 May 2018, inter alia, because it was contrary to public order, in particular due to the conduct of the National Security Committee of the Republic of Kazakhstan (KNB) in connection with the prosecution of R.A., and the fact that the requesting authority was continuing investigations against R.A. post mortem.
23. On 6 September 2018 the Princely High Court upheld the complaint of the public prosecutor and overturned the decision and ordered the Royal Regional Court to continue the judicial assistance.
24. The applicant and other involved persons filed an appeal which was dismissed by the Princely Supreme Court on 1 February 2019.
25. The appellants then lodged individual appeals against this order with the State Court of Justice, which on 2 September 2019 considered that the appellants constitutionally guaranteed rights had been violated, in part, mainly as concerned the non-arbitrary treatment. It thus, upheld the appeals, save in respect of the deceased R.A., and referred the case back to the Supreme Court.
26. In particular it considered that a foreign request may only be complied with if public order or other essential interests of the Principality of Liechtenstein were not violated. Examining the human rights situation in Kazakhstan, it noted that international reports indicated that proceedings there would not meet the requirements of a fair trial. The Secret Service was a special body directly subordinate to the President (whose immediate predecessor in office was R.A.’s former father-in-law) and there were indications that R.A.’s former companions had been arbitrarily arrested and mistreated in order to obtain confessions. The reports also showed the dominance of the President and the ruling party and the lack of an independent judiciary and of rule of law procedures. Violations by law enforcement officials and judicial officials were explicitly mentioned together with harassment leading to death, torture or ill-treatment or prisoner and detainees, and arbitrary arrests. These reports had also been relied on by the European Court of Human Rights in Baysakov and Others v. Ukraine (no. 54131/08, § 49, 18 February 2010). It further emerged from the final report of the Austrian Federal Ministry of Justice of 11 March 2009 that the abduction of R.A. had been planned and that he had subsequently been murdered. Other reports showed that KNB had been tasked with repatriating R.A. and other persons, possibly also by committing criminal acts. Further, it was credible that the applicant and R.A. were persecuted for political reasons and that the principles of a fair trial were not observed in the requesting State, in particular in relation to R.A. It thus concluded that the request for legal assistance was contrary to public order and thus could not be entertained by Lichtenstein. It followed that the decision of 6 September 2018 of the Princely High Court upholding the Prosecutor’s decision had to be annulled.
27. On appeal, on 7 February 2020, the Supreme Court was bound by the opinion of the State Court.Cyprus
28. In 2016 the Cypriot authorities issued a freezing order in respect of the applicant’s property, which was lifted a few months later. No further detail was provided to the Court in this respect.Greece
29. In 2014, by means of a letter rogatory in terms of the UN Convention on Transnational Organised Crime, the Kazakh authorities requested the Greek authorities to conduct an inquiry into acts of money laundering committed jointly and repeatedly by various persons including the applicant. In 2014 the Judicial Council of the Athens Magistrates’ Court accepted the request. By means of judicial council decision no. 4405/2014 a freezing order was issued on a series of accounts and safe deposits, including some owned by the applicant.
30. Following the relevant inquiry, by a judgment of 16 July 2020 the Judicial Council of the Athens Magistrates’ Court rescinded the freezing order and held that no charges should be held against, inter alia, the applicant. It shared the Prosecutor’s arguments that the letter rogatory contained no information or document proving the incidents as described in the charges, which mainly relied on testimonies of two individuals with no reference to the conditions under which they had been obtained. It further referred to a judgment of the Vienna Court of First-instance as well as other judgments given in European States which dismissed similar letters rogatory, noting that important questions arose in relation to the legitimacy of the criminal proceedings relied on. Noting the accused person’s assertions of political prosecution, it found that no information had been included in the file showing that the accused were aware of the alleged criminal activities of R.A.Proceedings in Kazakhstan
31. Following the Austrian authorities’ refusal to extradite R.A., in 2007 he was tried in absentia. In 2008 he was convicted and sentenced to a twenty‑year jail term.
32. In 2009, following another trial in absentia, R.A. was convicted of political offences by a secret military court and sentenced to a twenty-year jail term.
33. According to the applicant, she was never officially notified of any proceedings against her, although it transpires that such proceedings were initiated (see below).Proceedings in the Respondent State (Malta)The request for legal assistance via letters rogatory
34. In February 2013 the Maltese authorities received a request for legal assistance in terms of the UN Convention on Transnational Organised Crime, concerning the applicant and R.A. in relation to crimes allegedly committed in Kazakhstan. The request for assistance evolved into a request for an investigation and an attachment order.
35. The request was communicated to the Magistrate in line with Article 649(1) of the Criminal Code, who called for a number of witnesses to be questioned including the applicant, who was to be questioned on 31 October 2013, and R.A.
36. On 1 October 2013 the applicant and R.A. objected to the request and asked the Court of Magistrates not to execute the letter of request on the grounds that the Kazakh procedures were contrary to public policy and fundamental principles of Maltese law, as specified in Section 649(1) and (5) of the Criminal Code. They requested the court not to pass on any already collected information and to ensure that they and other people who had been called to testify and whose identity had therefore been disclosed to the Kazakh authorities, be given due protection.
37. Their objection was rejected on 21 October 2013, the Court of Magistrates noting, however, that in its collection of evidence it would apply the principles of Maltese law.
38. It appears that on an unspecified date criminal proceedings in Kazakhstan were instituted against the applicant and her husband on, inter alia, charges of money laundering. Despite them having been formally accused, evidence continued to be collected and witnesses continued to be heard, under Article 649 of the Criminal Code, in the absence of the applicant and her husband (who were not in Malta and had not been notified) or their representative.
39. It the context of these proceedings, on 7 April 2014 the Court of Magistrates issued a freezing order over the applicant’s and her husband’s property under Article 23A of the Criminal Code (freezing of property of an accused person).
40. On 12 September 2014 the applicant and her husband asked the Court of Magistrates to continue the proceedings in public. The request was denied on 2 October 2014 on the basis that the applicants had no locus standi in these proceedings.
41. By a decree of 10 October 2014, at the request of the parties, it was declared, inter alia, that the applicant and her husband be considered as accused in criminal proceedings in Kazakhstan, and had thus, legal standing in these proceedings as accused, with the relevant rights.The freezing order by the Criminal Court
42. Following a request by the Attorney General acting on the request of the Kazakh authorities, on 25 February 2014 the Criminal Court, in proceedings in camera, ordered the freezing of the assets held by the applicant and her husband and prohibited them from transferring or disposing of any movable or immovable property in accordance with Article 435C of the Criminal Code and Section 10 of the Prevention of Money Laundering Act.Constitutional redress proceedings (Malta)First-instance
43. In 2014 the applicant and R.A. instituted constitutional redress proceedings.
44. They complained that the proceedings instituted by the Attorney General in Malta at the request of the Kazakh authorities were in breach of their rights under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention; that given the political situation in Kazakhstan the claimants had no guarantees that their rights in the proceedings in Kazakhstan (of which they had not even been notified) would be respected and thus that the Maltese authorities should not abide by the request for legal assistance. They requested the court to bring to an end all the proceedings initiated in Malta and to order that all information which had been collected be destroyed and not sent to the Kazakh authorities as well as to make any relevant order to redress the said breaches.
45. By a judgment of 5 October 2017 the Civil Court (First Hall) in its constitutional competence found a partial breach of Article 6 of the Convention (see paragraph 47 below) and ordered that the documentation collected by the Maltese authorities should not be sent - there where it had not already been sent - to the Kazakh authorities as it had been collected in breach of the rights of the claimants; that any legal assistance requested from the Maltese authorities in relation to the now deceased R.A. should not continue nor should documents be sent to the Kazakhstan authorities. The latter finding was so since, in accordance with Maltese public policy, no criminal proceedings can be pursued against a deceased individual or his heirs.
46. It, however, found that the legal assistance in respect of the applicant should be continued and that all documentation collected be sent to the Kazakh authorities in relation to the criminal charges against her (as she had to be considered an accused person as agreed in the minutes of 10 October 2014).
47. In particular, it considered that the situation was one where the applicant and her husband were accused persons in criminal proceedings in Kazakhstan, but where the collection of evidence - a part of the criminal process - was being undertaken in Malta. Thus, the collection of evidence and decision to freeze the assets could not have been made in the absence of the applicant (and her husband) who had standing as well as the relevant rights as accused persons, [and in that connection there had been a breach of Article 6].
48. As to the rest, the court held that it had no competence to assess whether the proceedings in Kazakhstan were not genuine (fazulli) and whether they were politically motivated. It was for the Civil Court (First Hall) in its constitutional competence only to decide, in the present case, whether the Maltese State was to continue assisting a judicial system which was allegedly corrupt and unable to give a fair hearing. While this was not a question of extradition, the court was of the view that legal assistance should not be given in relation to proceedings which could not guarantee a fair trial. However, the Civil Court (First Hall) in its constitutional competence noted that the Constitution of Kazakhstan, at least on paper, offered the guarantees of a fair trial. Secondly, despite reports from various entities considering that the judicial system in Kazakhstan was not conducive of fair trials, the United Nations nevertheless accepted Kazakhstan as a signatory to the Convention for Reciprocal Assistance in Criminal Matters. The court took note of the various reports presented to it on the matter, including concerning the regular use of torture in political trials. It found that, indeed, according to a judgment of the ECtHR persons had also been tortured to give evidence against the applicant’s husband. It, however, considered that since the issue was not one of extradition, given the seriousness of the financial crimes with which the applicant was charged, the Maltese authorities should not obstruct the investigation by not sending the collected information, even assuming the proceedings against the applicant were not free from any political motives.
49. The Civil Court (First Hall) in its constitutional competence considered that while other countries had refused extradition requests, it did not appear to be so with requests for assistance which in themselves were not determinative of guilt and thus the applicant’s right to a fair trial would not be prejudiced. The court did not consider it appropriate to make any general assertions as to democracy in Kazakhstan, which was not relevant to the present case, as in it had not been sufficiently proved that the applicant’s trial was politically motivated.
50. While the court was not impressed by the witness testimony of A.Z. (a Kazakh official) who totally lacked credibility, it considered that it could not be said that the charges against the applicant were entirely ill-founded. Nor did they appear to be grounded or as having any legal basis - but this did not prohibit another country from pursuing their investigations. Thus, while the applicant’s request could not be considered as premature, despite proceedings not having come to an end, it was necessary to give guidance as to the way forward.
51. As to her complaint under Article 1 of Protocol No. 1, the court held that the freezing of her assets constituted a control of use of property in the general interest - it had been legal and pursued a legitimate aim, namely that of a deterrent in the fight against organised crime and money laundering, and had been proportionate having considered that the applicant (and her husband) who had been employees of the State at limited pay, had nonetheless managed to own various companies in Malta and abroad, as well as properties of a considerable value, which according to the Attorney General had been acquired via assets having an illicit origin.Appeal
52. Both parties appealed. The applicant challenged the judgment in so far as it rejected the complaint under Article 1 of Protocol No. 1 in relation to the freezing order (noting in particular that the domestic courts had not differentiated between investigated or accused persons and that while they became accused on 10 October 2014, the freezing order had been issued on 26 February 2014). She further appealed in relation to the continuation of the assistance to the Kazakh authorities.
53. By a judgment of 8 April 2019 the Constitutional Court rejected the applicant’s appeal.
54. It confirmed that the complaint was not premature and that the continuation of proceedings after 10 October 2014, date when they had been recognised as accused, in the absence of the applicant (and her husband), at a time where criminal proceedings were ongoing against them in Kazakhstan and when they therefore had the status of accused persons was in breach of the applicant’s right to a fair trial. This was so given that under the Maltese law an accused person had the right to be notified of the proceedings arising from letters rogatory and to be present throughout the criminal process, including the collection of evidence in a foreign state, in order to safeguard their interests.
55. The Constitutional Court considered that whatever went on in Malta had to be in line with the domestic law in Malta and the applicant’s fair trial rights. The first-instance court had thus been right to order that any evidence collected in breach of those rights should not be sent to the Kazakhstan authorities. However, that evidence should again be brought before the domestic courts in the presence of the applicant, so as to enable Malta to conform to its international obligations.
56. It further considered that the freezing order should be kept in place in respect of the applicant, but not her husband who was now deceased, since it was a precautionary measure - a tool provided for by the Criminal Code, which was often used in money laundering cases - and there was therefore no breach of any human right if it remained applicable until the end of the criminal proceedings. Given the seriousness of the offence with which the applicant was charged, the measure had not been arbitrary or unreasonable, as also confirmed by the Criminal Court who issued the order on 25 February 2014.
57. In so far as the applicants requested the court to reverse the findings under Article 1 of Protocol No. 1, while no specific appeal plea was made in this regard, the Constitutional Court was of the view that no such breach could be upheld, since contrary to a confiscation order, a freezing order did not deprive the applicants of their possession but was only a temporary measure which was lawful, in the general interest and proportionate to the aim pursued.Relevant domestic lawCriminal Code
58. Article 23A of the Criminal Code, in so far as relevant, reads as follows:
(1) In this article, unless the context otherwise requires:
"relevant offence" means any offence not being one of an involuntary nature other than a crime under the Ordinances or under the Act, liable to the punishment of imprisonment or of detention for a term of more than one year; "the Act" means the Prevention of Money Laundering Act; "the Ordinances" means the Dangerous Drugs Ordinance and the Medical and Kindred Professions Ordinance.
(2) Where a person is charged with a relevant offence the provisions of article 5 of the Act shall apply mutatis mutandis and the same provisions shall apply to any order made by the Court by virtue of this article as if it were an order made by the Court under the said article 5 of the Act.
(3) Where the court does not proceed forthwith to make an order as required under sub-article (2) the court shall forthwith make a temporary freezing order having the same effect as an order made under article 5 of the Act which temporary order shall remain in force until such time as the court makes the order required by the said sub-article.
(4) Where for any reason whatsoever the court denies a request made by the prosecution for an order under sub-article (2) the Attorney General may, within three working days from the date of the court’s decision, apply to the Criminal Court to make the required order and the provisions of article 5 of the Act shall apply mutatis mutandis to the order made by the Criminal Court under this sub-article as if were an order made by the court under the same article 5. The temporary freezing order made under subarticle
(3) shall remain in force until the Criminal Court determines the application.
(5) The person charged may within three working days from the date of the making of the order under sub-article (2) apply to the Criminal Court for the revocation of the order provided that the order made under sub-article (2) shall remain in force unless revoked by the Criminal Court.”
59. Article 435C of the Criminal Code, in so far as relevant, reads as follows:
“(1) Where the Attorney General receives a request made by a judicial, prosecuting or administrative authority of any place outside Malta or by an international court for the temporary seizure of all or any or the moneys or property, movable or immovable, of a person (hereinafter in this article referred to as "the accused") charged or accused in proceedings before the courts of that place or before the international court of a relevant offence, the Attorney General may apply to the Criminal Court for an order (hereinafter in this title referred to as a "freezing order") having the same effect as an order as is referred to in article 22A(1) of the [Dangerous Drugs] Ordinance, and the provision of the said article 22A shall, subject to the provisions of sub-article (2), apply mutatis mutandis to that order.
(2) The provisions of article 24C(2) to (5) of the Ordinance shall apply to an order made under this article as if it were an order made under the said article 24C.
(3) Article 22B of the Ordinance shall also apply to any person who acts in contravention of a freezing order under this article.”
60. Article 649 of the Criminal Code, in so far as relevant, reads as follows:
“ (1) Where the Attorney General communicates to a magistrate a request made by a judicial, prosecuting or administrative authority of any place outside Malta or by an international court for the examination of any witness present in Malta, or for any investigation, search or/and seizure, the magistrate shall examine on oath the said witness on the interrogatories forwarded by the said authority or court or otherwise, and shall take down the testimony in writing, or shall conduct the requested investigation, or order the search or/and seizure as requested, as the case may be. The order for search or/and seizure shall be executed by the Police. The magistrate shall comply with the formalities and procedures indicated in the request of the foreign authority unless these are contrary to the public policy or the internal public law of Malta.
(2) The provisions of sub-article (1) shall only apply where the request by the foreign judicial, prosecuting or administrative authority or by the international court is made pursuant to, and in accordance with, any treaty, convention, agreement or understanding between Malta and the country, or between Malta and the court, from which the request emanates or which applies to both such countries or to which both such countries are a party or which applies to Malta and the said court or to which both Malta and the said court are a party. A declaration made by or under the authority of the Attorney General confirming that the request is made pursuant to, and in accordance with, such treaty, convention, agreement or understanding which makes provision for mutual assistance in criminal matters shall be conclusive evidence of the matters contained in that certificate. In the absence of such treaty, convention, agreement or understanding the provisions of subarticle (3) shall be applicable.
(3) (...)
(4) The magistrate shall transmit the deposition so taken, or the result of the investigation conducted, or the documents or things found or seized in execution of any order for search or/and seizure, to the Attorney General.
(5) For the purposes of sub-articles (1) and (3) the magistrate shall, as nearly as may be, conduct the proceedings as if they were an inquiry relating to the in genere but shall comply with the formalities and procedures indicated by the requesting foreign authority unless they are contrary to the fundamental principles of Maltese law and shall have the same powers, or as nearly as may be, as are by law vested in the Court of Magistrates as court of criminal inquiry, as well as the powers, or as nearly as may be, as are by law conferred upon him in connection with an inquiry relating to the in genere:
provided that a magistrate may not arrest any person, for the purpose of giving effect to an order made or given under article 554(2), or upon reasonable suspicion that such person has committed an offence, unless the facts amounting to the offence which such person is accused or suspected to have committed amount also to an offence which may be prosecuted in Malta.
(...)”Money Laundering Act
61. Sections 5 and 10 of the Prevention of Money Laundering Act, Chapter 373 of the Laws of Malta, in so far as relevant, read as follows:
Section 5
“(1) Where a person is charged under article 3 [money laundering], the court shall at the request of the prosecution make an order -
(a) attaching in the hands of third parties in general all moneys and other movable property due or pertaining or belonging to the accused, and
(b) prohibiting the accused from transferring, pledging, hypothecating or otherwise disposing of any movable or immovable property:
Provided that the court shall in such an order determine what moneys may be paid to or received by the accused during the subsistence of such order, specifying the sources, manner and other modalities of payment, including salary, wages, pension and social security benefits payable to the accused, to allow him and his family a decent living in the amount, where the means permit, of thirteen thousand and nine hundred and seventy-six euro and twenty-four cents (13,976.24) every year:
Provided further that the court may also -
(a) authorise the payment of debts which are due by the accused to bona fide creditors and which were contracted before such order was made; and
(b) on good ground authorise the accused to transfer movable or immovable property.
(2) Such order shall -
(a)become operative and binding on all third parties immediately it is made, and the Director of the Asset Recovery Bureau shall cause a notice thereof to be published without delay in the Gazette, and shall also cause a copy thereof to be registered in the Public Registry in respect of immovable property; and
(b) remain in force until the final determination of the proceedings, and in the case of a conviction until the sentence has been executed.
(3) The court may for particular circumstances vary such order, and the provisions of the foregoing subarticles shall apply to such order as so varied.”
Section 10
“(1) Where the Attorney General receives a request made by a judicial or prosecuting authority of any place outside Malta for the temporary seizure of all or any of the moneys or property, movable or immovable, of a person (hereinafter in this article referred to as "the accused") charged or accused in proceedings before the courts of that place of an offence consisting in an act or an omission which if committed in these Islands, or in corresponding circumstances, would constitute an offence under article 3, the Attorney General may apply to the Criminal Court for an order (hereinafter referred to as a "freezing order") having the same effect as an order as is referred to in article 22A(1) of the Dangerous Drugs Ordinance, and the provisions of the said article 22A shall, subject to the provisions of subarticle (2) of this article, apply mutatis mutandis to that order.
(2) The provisions of article 24C(2) to (5) of the Dangerous Drugs Ordinance shall apply to an order made under this article as if it were an order made under the said article 24C.”Dangerous Drugs Ordinance
62. In so far as relevant, the Sections of the Dangerous Drugs Ordinance mentioned above read as follows:
“22A. (1) ... the court shall at the request of the prosecution make an order -
(a) attaching in the hands of third parties in general all moneys and other movable property due or pertaining or belonging to the accused, and
(b) prohibiting the accused from transferring or otherwise disposing of any movable or immovable property:
Provided that the court shall in such an order determine what moneys may be paid to or received by the accused during the subsistence of such order, specifying the sources, manner and other modalities of payment, including salary, wages, pension and social security benefits payable to the accused, to allow him and his family a decent living in the amount, where the means permit, of thirteen thousand and nine hundred and seventy-six euro and twenty-four cents (13,976.24) every year:
Provided further that the court may also -
(a) authorise the payment of debts which are due by the accused to bona fide creditors and which were contracted before such order was made; and
(b) on good ground authorise the accused to transfer movable or immovable property.
(2) Such order shall -
(a) become operative and binding on all third parties immediately it is made, and the Director of the Asset Recovery Bureau shall cause a notice thereof to be published without delay in the Gazette, and shall also cause a copy thereof to be registered in the Public Registry in respect of immovable property, and
(b) remain in force until the final determination of the proceedings, and in the case of a conviction until the sentence has been executed.
(3) The court may for particular circumstances vary such order, and the provisions of the foregoing subarticles shall apply to such order as so varied.
(7) Where the court does not proceed forthwith to make an order as required under sub-article (1), the court shall forthwith make a temporary freezing order having the same effect as an order made under this article, which temporary order shall remain in force until such time as the court makes the order required by the said article.
....
(9) The person charged may within three working days from the date of the making of the order under sub-article (7) apply to the Criminal Court for the revocation of the order, provided that order shall remain in force unless revoked by the Criminal Court.”
24C(2). The first proviso of article 22A(1) shall not apply to a freezing order made under this article unless:
(a) the accused is present in Malta on the date the order is made; or
(b) the Attorney General or any other interested person present in Malta applies to the court, before or after the order is made, for the application of that proviso in which case the court shall only apply the proviso to the extent that it is satisfied that the application of the proviso is necessary to allow the accused and his family a decent living.
...
(4) Subject to the provisions of subarticle (5), a freezing order under this article shall remain in force for a period of six months from the date on which it is made but shall be renewed by the court for further periods of six months upon an application for that purpose by the Attorney General and upon the court being satisfied that:
(a) the conditions which led to the making of the order still exist; or
(b) that the accused has been convicted of an offence as is referred to in subarticle (1) in the proceedings referred to in the same subarticle and the sentence in regard to the accused in those proceedings or any confiscation order consequential or accessory thereto, whether made in civil or criminal proceedings, has not been executed:
Provided that where the accused has been convicted as aforesaid but no confiscation order has been made in the sentence in respect of that conviction the freezing order shall nevertheless be renewed as requested by the Attorney General where the court is satisfied that civil or criminal proceedings for the making of such an order are pending or are imminent.
(5) Any freezing order under this article may be revoked by the Court before the expiration of the period laid down in subarticle (4):
(a) at the request of the Attorney General; or
(b) at the request of any interested person and after hearing the Attorney General upon the court being satisfied:
(i) that the conditions which led to the making of the order no longer exist; or
(ii) that there has been a final decision in the proceedings referred to in subarticle (1) by virtue of which the accused has not been found guilty of any offence as is referred to in the same subarticle.”
COMPLAINTS
63. The applicant complains that the Maltese State’s compliance with the request for legal assistance and freezing order requested by the Kazakhstan authorities was not in compliance with Article 6 since the requests stemmed from a regime that could not offer any guarantees of a fair trial. Thus, by using as a basis for their own decision the Kazakh proceedings, in the applicant’s view, the Maltese courts were violating Article 6. The applicant further complains under Article 1 of Protocol No. 1 about the freezing order as well as its duration and the fact that it will certainly result in a confiscation, based on politically motivated trumped up charges. She considers that the measure did not pursue any genuine public interest (especially in Malta). She further considers that apart from a negative obligation, the Maltese State also had a positive obligation not to be complicit in the breaches of human rights to be perpetrated in Kazakhstan. Lastly, the applicant complains under Article 6 about the length of the constitutional redress proceedings which lasted four years and ten months over two jurisdictions.
QUESTIONS TO THE PARTIES
1. Is Article 6 § 1 in its civil limb applicable to the proceedings concerning legal assistance, over and above those relating to the freezing orders? In particular, what was requested of the Maltese authorities, and which civil rights came to play as a result?
2. If so, in respect of the general actions undertaken in compliance with the request, as well as in relation to the issuance of freezing orders, before proceeding to co-operate, should the domestic courts have examined whether the relevant proceedings in Kazakhstan fulfilled the guarantees of Article 6? If so, did they do so in such a way that the applicant could be said to have had a fair trial for the purposes of Article 6 § 1 before the Maltese courts (see, mutatis mutandis, Pellegrini v. Italy, no. 30882/96, §§ 40 and 47, ECHR 2001-VIII)?
3. Has there been a violation of Article 1 of Protocol No. 1 to the Convention in relation to the freezing orders imposed on the applicant’s property? In particular, where such orders lawful? Did they pursue a legitimate aim? Where they proportionate to any aim pursued and were relevant procedural safeguards in place and applied?
4. Did the applicant have a trial within a reasonable time as provided by Article 6 § 1 before the constitutional jurisdictions?
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