Freezing of assets in Malta following request by the Kazakh authorities. Disproportionate intervention and violation of respect for property!
JUDGMENT
Shorazova v. Malta 03.03.2022 (app. no. 51853/19)
SUMMARY
The applicant, Ms Shorazova was born in Kazakhstan and at the relevant time was married to Rakhat Aliyev, who
had previously been married to the daughter of the then president of Kazakhstan, Nursultan
Nazarbayev and later became his political adversary. The case concerned the freezing of the
applicant’s assets in Malta at the request of the Kazakh authorities. She was facing charges in
Kazakhstan for multiple serious crimes at that time.
The Court considered that in the present case there were sufficient grounds to question the genuine
nature of the actions undertaken by Kazakhstan and thus the general interest behind the measure. It
then found that in the procedure before the Criminal Court by which the freezing order had been
issued and repeatedly extended in the applicant’s case, the applicant had been deprived of relevant
procedural safeguards against an arbitrary or disproportionate interference for nearly eight years.
However, as concerned the constitutional proceedings which she had lodged to complain of a breach
of her rights, the Court considered their length not to have been excessive in the circumstances.
PROVISIONS
Article 6 par. 1
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Elnara Shorazova, is an Austrian national who was born in 1976 and lives in Vienna.
Ms Shorazova is the widow of Rakhat Aliyev. The latter had previously been married to the daughter
of Nursultan Nazarbayev, who was president of Kazakhstan from 1991 until 2019. As well as being
appointed to other Government posts, in 2002 Mr Aliyev became ambassador to Austria, before
returning in 2005 to Kazakhstan as vice-minister of Foreign Affairs. He was spoken about as a
candidate to replace Mr Nazarbayev as president. In the mid-2000s political tensions arose between
the two men. A warrant was ultimately issued for Mr Aliyev’s arrest
Mr Aliyev married the applicant in 2009 and they resided in Malta until 2013. He died in prison in
Austria in 2015.
In 2008 and 2009 following two trials in absentia Mr Aliyev was convicted in Kazakhstan of among
other things political offences and sentenced in both to a 20-year prison sentence.
In 2007 a first extradition request for Mr Aliyev was received by Austria and denied on the grounds
that he would not receive treatment in accordance with the European Convention. In 2011 a second
extradition request was also rejected, noting Mr Aliyev’s conviction in absentia and that it had been
possibly a political trial.
In subsequent years a series of investigations were undertaken and freezing orders on the couple’s
property issued, following requests by the Kazakh authorities, in Germany, Cyprus, Liechtenstein and
Greece. However, they were all discontinued and lifted respectively.
In 2013 the Maltese authorities received a request for legal assistance in relation to Mr Aliyev and
the applicant, asking for several witnesses to be questioned and evidence to be collected. Ms
Shorazova and Mr Aliyev were not informed of this procedural step.
Again following a request by the Kazakh authorities, in 2014 the Maltese authorities issued a
freezing order in respect of the couple’s assets in Malta, which was still in effect at the time of the
lodging of the application with the Court, as it had been repeatedly extended by the Criminal Court
every six months.
In June 2014 the couple instituted constitutional redress proceedings under Article 6 of the
Convention and Article 1 of Protocol No. 1, alleging that they had no guarantee of respect for their
rights in Kazakhstan and thus Malta should not cooperate with the requests for legal assistance,
asking for the termination of all proceedings in Malta. In April 2019 the Constitutional Court,
confirming the first-instance judgment, upheld their claims in part in relation to Article 6, but
rejected the complaint under Article 1 of Protocol No. 1, considering that the freezing order was only
a temporary measure which was lawful, in the general interest and proportionate to the aim
pursued.
Following the notification of this application to the Government, on 23 July 2021 the Criminal Court
lifted the freezing order, holding that as no criminal proceedings had been ongoing against Ms
Shorazova in Kazakhstan, the order was not warranted under Maltese law.
Relying on Articles 1 of Protocol No. 1 (protection of property) and 6 § 1 (right to a fair trial), the
applicant complained that the Maltese State should not have complied with the request for legal
assistance not issued the freezing order requested by the Kazakhstan authorities as the regime there
could not offer any guarantees of a fair trial. She also complained that the constitutional
proceedings, she had instituted to complain of the breach of her rights, had been overly long.
THE DECISION OF THE COURT…
Article 1 of Protocol No. 1 and Article 6 § 1 concerning the ordinary proceedings
The Court ruled that the freezing order had been an interference with the applicant’s property
rights.
While the Court could not take the place of the domestic authorities to rule on the lawfulness of the
measure, it considered it disconcerting that over a period of nearly eight years the legality of the
matter and the applicant’s situation had not been examined thoroughly by the domestic courts. This
indicated a serious problem at the domestic level.
The Court considered that there had been sufficient evidence indicating that the proceedings in
Kazakhstan may have had a political motive, Thus, whether there had been a general interest
behind the freezing order which had been put and kept in place by the Maltese authorities in the
specific circumstances of the present case was something which deserved particular evaluation by
the domestic courts. The Court stressed the importance of mutual legal assistance under the United
Nations Convention, considering however that this should be carried out in compliance with
international human-rights standards.
Furthermore, the Court – noting that the applicant had not been charged in any European country
despite multiple investigations and in view of the situation in Kazakhstan in relation to any criminal
proceedings which could be pursued there against the applicant – doubted whether the fight against
crime had been the general interest pursued in this case.
Concerning the freezing order itself, the Court found it to have been a harsh and restrictive measure
– it concerned the entirety of the applicant’s property in Malta and no domestic court had made an
assessment concerning its extent in relation to the “charges” neither at the time it had been issued
nor in subsequent renewals. Nor had there been any assessment as to whether it would have been
legitimate and proportionate to apply such a measure, given the circumstances of the case. The
Court also noted that the extensions of the order had been automatic, without the applicant being
given a hearing.
Ultimately, it had not been until notification of the complaint to the Government by the Court that
the Criminal Court had intervened and the order had been lifted.
Overall, the Court found that the procedures for issuing and extending the freezing order had not
allowed the applicant to protect herself against arbitrariness, and that the courts of constitutional
competence had not fixed that deficiency.
There had thus been a violation of Article 1 of Protocol No. 1 to the Convention.
Given those findings, the Court considered that it was not necessary to examine the ordinary
proceedings in the light of Article 6 § 1.
Article 6 § 1 concerning the length of the constitutional proceedings
The constitutional proceedings as a whole had lasted almost four years and ten months over two
levels of jurisdiction. The Government asserted that the case had been complex, with voluminous
evidence, and the legal questions novel. The courts had acted with diligence. Furthermore, they
stated that the requirements in terms of expedition were not the same for the Constitutional Court
as for the ordinary courts.
The Court found that there had been no periods of inactivity or deficient conduct on the part of the
authorities. It noted in particular the lack of argument from the applicant. Overall, it considered the
length of the proceedings, although long, not to have been excessive in the circumstances.
There had been no violation of the Convention with regard to the length of the constitutional
proceedings.
Just satisfaction (Article 41)
The Court held that Malta was to pay the applicant 2,000 euros (EUR) in respect of non-pecuniary
damage and EUR 586 in respect of costs and expenses.
