The European Court of Human Rights has found Malta in breach, over a decision to freeze the assets of a widow.

Elnara 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 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 Nazarbayev as president, the ECHR said.

“In the mid-2000s political tensions arose between the two men. A warrant was ultimately issued for Aliyev’s arrest. 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, Aliyev was convicted in Kazakhstan of, among other things, political offences and sentenced in both to a 20-year prison sentence.”

The ECHR noted that in 2007, a first extradition request for 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 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. Shorazova and 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 Shorazova in Kazakhstan, the order was not warranted under Maltese law.”

The ECHR noted 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 ECHR 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, the ECHR said. “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 ECHR 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.”

Regarding the length of the proceedings in Malta, the ECHR found no violation.

The Court held that Malta was to pay the applicant €2,000 in respect of non-pecuniary damage and €586 in respect of costs and expenses. The decision was taken by seven ECHR judges.