Opinion; Subjects: FRANCE, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.17-00907 (E) 100417 100417
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-seventh session, 21-25 November
2016
Opinion No. 49/2016 concerning Mukhtar Ablyazov (France)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed that mandate and most
recently extended it for a three-year period in its resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/30/69), on 20 May 2016 the
Working Group transmitted to the Government of France a communication concerning
Mukhtar Ablyazov. The Government replied to the communication in a note verbale dated
20 July 2016. However, the registrar of the Office of the United Nations High
Commissioner for Human Rights only received the letter on 25 July 2016. The State has
been a party to the International Covenant on Civil and Political Rights since 4 November
1980.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
United Nations
A/HRC/WGAD/2016/49
General Assembly
Distr.: General
20 January 2017
English
Original: French
A/HRC/WGAD/2016/49
2
GE.17-00907
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
Mukhtar Ablyazov, born on 16 May 1963, is a Kazakh national whose habitual
residence is Rome. Mr. Ablyazov is a leading entrepreneur, the former Minister of Energy,
Industry and Trade, and the co-founder of the political party Democratic Choice of
Kazakhstan.
5.
According to the source, for the past 20 years, Mr. Ablyazov has been targeted by
the Government of Kazakhstan because he is regarded as a leader of the political opposition
and a prominent critic of the President, Nursultan Nazarbayev. In 2002, Mr. Ablyazov was
imprisoned for fraud on the basis of contrived charges. This occurred shortly after he had
begun funding the opposition. The source alleges that Mr. Ablyazov’s imprisonment was
intended to punish him for criticizing the Kazakh regime. While he was in prison, Mr.
Ablyazov was subjected to torture and ill-treatment. During this period, Amnesty
International declared him a political prisoner.
6.
In May 2003, after serving 10 months of a 6-year prison sentence, Mr. Ablyazov
was released following a presidential pardon. The source mentions that the pardon was
granted on condition that he cease all political activity; Mr. Ablyazov was forced to accept
this condition.
7.
After his release, Mr. Ablyazov moved to the Russian Federation. However, in 2005,
he returned to Kazakhstan to take up the post of president of BTA JSC Bank. According to
the information provided by the source, he succeeded in turning the institution into one of
the largest and most prosperous banks in Kazakhstan.
8.
In 2009, Mr. Ablyazov became once again a target of the Government when it
nationalized BTA JSC Bank and charged him with financial misconduct on the basis of
fabricated accusations. Concurrently, the Russian Federation and Ukraine initiated their
own proceedings for financial misconduct against Mr. Ablyazov, in 2010.
9.
In 2009, Mr. Ablyazov and his family fled the country on account of the threats of
violence and death threats made against them and sought asylum in the United Kingdom of
Great Britain and Northern Ireland. The source reports that, after carefully considering the
asylum application for over two years and “recognizing that the criminal proceedings
brought by Kazakhstan were part of a politically-motivated campaign of persecution”, the
United Kingdom granted him political asylum.
10.
In the interim, the prosecuting authorities in Kazakhstan, the Russian Federation and
Ukraine issued arrest warrants and succeeded in having Mr. Ablyazov placed on the
International Criminal Police (INTERPOL) red notice list. In parallel, BTA JSC Bank,
which had by that point been nationalized, brought a civil suit against Mr. Ablyazov before
the courts of the United Kingdom for fraud that he allegedly committed while at the helm
of the Bank. The suit was intended to punish him for commercial practices that were
commonplace, and the source contends that it “served as a form of reprisals against Mr.
Ablyazov for his peaceful political activities”.
11.
During Mr. Ablyazov’s stay in the United Kingdom between 2009 and 2012, the
British authorities refrained from enforcing the INTERPOL red notices and thus did not
arrest him. On the contrary, the source states that the intelligence and police services sought
to protect Mr. Ablyazov. In January 2011, a letter known as an “Osman warning” was
issued by London’s Metropolitan Police to inform Mr. Ablyazov that he was at real and
imminent risk of abduction and physical harm because of his political convictions. He then
left the United Kingdom for continental Europe in February 2012 after receiving credible
death threats. Owing to this serious danger and fearing for his life, Mr. Ablyazov and his
family went into hiding.
12.
In May 2013, Kazakh diplomats collaborated with senior Italian officials to set up
the abduction of Mr. Ablyazov’s wife and daughter, then aged 6, in Rome. Their forced
A/HRC/WGAD/2016/49
GE.17-00907
3
removal from Italy and transfer to Kazakhstan have been acknowledged by the Government
of Italy as a case of extraordinary transfer or extradition. The case was the subject of a joint
urgent appeal issued by the Special Rapporteur on the independence of judges and lawyers,
the Special Rapporteur on the human rights of migrants and the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment and transmitted to
the Government of Italy on 7 June 2013 (UA ITA 1/2013). Another joint urgent appeal was
issued by the Special Rapporteur on the human rights of migrants and the Special
Rapporteur on torture and transmitted to the Government of Kazakhstan on 17 July 2013
(UA KAZ/2013).
13.
According to the source, Mr. Ablyazov was eventually located by private detectives
working for Kazakhstan. They then notified the French lawyers representing BTA JSC
Bank of Mr. Ablyazov’s presence in French territory. The source claims that one of the
lawyers then contacted the Advocate General in Aix-en-Provence directly to request Mr.
Ablyazov’s arrest.
14.
On 31 July 2013, Mr. Ablyazov was arrested by the French police on the basis of an
INTERPOL red notice. On 31 July and 1 August 2013, he was held in a police station in
Nice. On 1 August 2013, the court in Aix-en-Provence ruled that Mr. Ablyazov should be
detained as long as the case remained pending. On the same day, he was transferred to a
detention centre in Luynes, near Aix-en-Provence.
15.
According to the source, on 14 August 2013 Ukraine formally requested Mr.
Ablyazov’s extradition in a note verbale sent to France. The extradition request included a
copy of a decision by a Kyiv court dated 19 April 2012 referring to an alleged arrest
warrant dated 24 September 2010 that also ordered Mr. Ablyazov’s remand into pretrial
detention. The arrest warrant was not, however, attached to the extradition request. On 5
November 2013, Mr. Ablyazov was formally notified that the authorities of the Russian
Federation had made a request for his extradition.
16.
On 5 December 2013, the Aix-en-Provence court decided to consider both
extradition requests together. On 12 December 2013, a panel of three judges at the appeals
court in Aix-en-Provence examined the two files. On 9 January 2014, the court handed
down its decision in favour of extradition by the Government of France to either the
Russian Federation or Ukraine and, at the same time, designated the Russian Federation as
the preferred destination for extradition.
17.
On 9 April 2014, following the lodging of an appeal by Mr. Ablyazov’s lawyers, the
Court of Cassation voided the decisions of the Aix-en-Provence court, finding that
procedural violations had been committed by the lower court in its handling of the
extradition requests by Ukraine and the Russian Federation. It decided to refer the requests
to the judicial authorities of Lyons for full reconsideration.
18.
The court in Lyons held a hearing on the request for Mr. Ablyazov’s extradition to
Ukraine on 25 September 2014 and another on the request for his extradition to the Russian
Federation on 17 October 2014. On 24 October 2014, the court ruled in favour of Mr.
Ablyazov’s extradition to either the Russian Federation or Ukraine, stating a preference for
extradition to the Russian Federation. Mr. Ablyazov’s lawyer appealed the ruling before the
Court of Cassation.
19.
In parallel, in 2014, the British Home Office withdrew Mr. Ablyazov’s refugee
status on the grounds that he might have committed financial offences prior to its being
granted. Mr. Ablyazov challenged the decision and the case remains pending before the
British courts. The same year, his wife, who had been abducted by the Kazakh authorities,
was able to return to Italy, where she obtained refugee status.
20.
On 4 March 2015, the Court of Cassation upheld the decision of the Lyons court in
favour of extradition after finding that the lower court had not committed any procedural
errors. In its decision, the Court stressed that, under French law, the Court of Cassation
cannot rule on the merits of a decision rendered by a lower court in matters of extradition.
In other words, the Court of Cassation does not re-examine the evidence or review the
findings made in the decision being challenged but, rather, ensures that procedural rules
have been observed.
A/HRC/WGAD/2016/49
4
GE.17-00907
21.
On 17 September 2015, despite numerous appeals by non-governmental
organizations for the defence of human rights, such as Human Rights Watch and Amnesty
International, the Prime Minister of France, Manuel Valls, signed a decree ordering the
extradition of Mr. Ablyazov to the Russian Federation. On 6 October 2015, Mr. Ablyazov
was notified of the decision. On 4 November 2015, Mr. Ablyazov lodged an appeal before
the Council of State, the country’s highest administrative court, to challenge the decree.
The source claims that extradition decrees are usually upheld and that it is highly likely that
Mr. Ablyazov is facing extradition to the Russian Federation.
22.
The source considers that the case satisfies the requirements of category I because
there is no legal basis for such a long period of deprivation of liberty in an extradition
matter. The source claims that the extradition procedures fail to comply with the laws
currently in force because of the excessive duration occasioned by the lack of due diligence.
23.
Moreover, the source states that Mr. Ablyazov has filed numerous requests for
conditional release, offering to be subjected to strict house arrest and electronic monitoring.
His requests were denied on 22 August 2013, 3 October 2013, 6 October 2014, 19
December 2014 and 11 March 2016, chiefly because of the authorities’ fear that Mr.
Ablyazov would flee if released.
24.
The source also claims that the French authorities did not have any legal grounds to
detain Mr. Ablyazov because the red notices issued by INTERPOL on the basis of the
extradition requests by the Russian Federation and Ukraine were in fact politically
motivated and because these two countries were in reality colluding on behalf of the
Government of Kazakhstan. The source contends that the most glaring evidence in support
of this claim is the fact that the legal proceedings in the Russian Federation and Ukraine
were brought at a time when Mr. Ablyazov was no longer in the good graces of President
Nazarbayev and that he was not the sole target of political persecution.
25.
According to the source, the Government of Kazakhstan targeted Mr. Ablyazov’s
family and his former associates in order to intimidate and muzzle him. Kazakhstan has a
long and well-documented history of persecution of members of the political opposition
and those who disagree with President Nazarbayev. The source adds that Mr. Ablyazov’s
persecution has been widely acknowledged and condemned by the international
community.
26.
According to the source, the fact that the French lawyers representing Ukraine were
hired, at a cost of hundreds of thousands of euros, by BTA JSC Bank of Kazakhstan and not
by the Government of Ukraine demonstrates the extent to which Kazakhstan is using
Ukraine to obtain Mr. Ablyazov’s extradition, thus hinting at the political nature of the
procedures undertaken.
27.
The source claims that the case satisfies the requirements of category III, as the
Government of France violated certain procedural guarantees enshrined in both national
and international law. Firstly, the source considers that the police arrested Mr. Ablyazov
without a warrant and that the Government of France was unable to provide the grounds for
his arrest within the allotted time. The French police arrested Mr. Ablyazov on 31 July
2013, on the order of the Advocate General in Aix-en-Provence, with a view to enforcing
the INTERPOL red notice posted following the issuance of an arrest warrant by Ukraine on
24 September 2010. At the time of his arrest, Mr. Ablyazov could not have been informed
of the reasons for his arrest because he did not benefit from the services of a Russian
interpreter. On 17 October 2013, Mr. Ablyazov received a translation of the extradition
request by Ukraine, that is 78 days after the beginning of his detention by the French
authorities.
28.
According to the source, the alleged Ukrainian arrest warrant which was cited for
the purposes of the INTERPOL red notice and on which the Advocate General in Aix-en-
Provence relied as the basis for the order to arrest Mr. Ablyazov was not transmitted to him
until 4 December 2013, or 126 days after his arrest. The source claims that it was not an
arrest warrant but, rather, a summons to appear before the Ukrainian courts. The source
contends that Mr. Ablyazov’s arrest infringed articles 696-8 and 696-23 of the French Code
of Criminal Procedure, which stipulate that the arrest warrant is a crucial procedural
A/HRC/WGAD/2016/49
GE.17-00907
5
component and an indispensable document that must, first and foremost, actually be issued
and, subsequently, must be appended to the extradition request as evidence.
29.
The source stresses that the grounds for Mr. Ablyazov’s deprivation of liberty
should have been provided to him not only in a Russian translation, but also in French, so
that his French lawyer could challenge his extradition. However, when the French version
of the extradition requests was finally provided to him, the translation was of such
questionable quality that the request by Ukraine was very difficult to understand while the
one by the Russian Federation was incomprehensible.
30.
The source argues that the French translation provided by the Government of the
Russian Federation was of such poor quality that, following the annulment of the decision
of the Aix-en-Provence court by the Court of Cassation in 2014 and the ordering of a new
hearing, the Lyons court sided with Mr. Ablyazov’s defence lawyers, stating that the
translation provided by the Government of the Russian Federation was not up to the
standards required under current legislation.
31.
On 12 June 2014, the Lyons court requested a French translation of the entire file
regarding extradition to the Russian Federation. Mr. Ablyazov’s lawyer received a
comprehensible translation of the extradition request by the Russian Federation on 3
September 2014, that is 9 months and 21 days after 5 November 2013, the date on which
Mr. Ablyazov was notified of the extradition request and his detention began.
32.
Secondly, the Government of France was not able to act within a reasonable time
frame or without excessive delay. The source claims that due diligence was not respected in
the judicial extradition proceedings with regard to Mr. Ablyazov insofar as lengthy delays
were incurred at various stages of the proceedings, with the result that the entire process
lasted 2 years and 10 months.
33.
In support of the application, the source submits that, on finding out that the Court
of Cassation had voided the decision of the Aix-en-Provence court on 9 April 2014 and had
ordered new proceedings in Lyons, the Aix-en-Provence court made significant procedural
errors. At the hearing of 9 May 2014, Mr. Ablyazov was once again formally notified of the
extradition request by Ukraine, which implies a period of detention of 9 months and 26
days before new judicial proceedings were initiated before the Lyons court.
34.
The source asserts that the way in which the Government handled the issuance of the
extradition decree against Mr. Ablyazov in September 2015 also demonstrates the extent of
its failure to act swiftly, for which there was, moreover, no good reason. The decree was
signed by the French Prime Minister on 17 September 2015; however, Mr. Ablyazov was
not made aware of the decree until it was transmitted to him on 6 October 2015 while he
was in detention. In other words, it took 19 days to translate the decree into Russian when
the document was only a few paragraphs long.
35.
Thirdly, the Government of France was unable to guarantee Mr. Ablyazov a hearing
before an impartial and independent court. The source contends that, throughout the judicial
extradition proceedings, the judicial authorities showed clear bias against Mr. Ablyazov,
demonstrating their intention to carry out his extradition regardless of the facts and the law.
In support of this claim, the source demonstrates that the French judicial authorities did not
act of their own accord but, rather, were influenced by political pressure and that they could
not, therefore, act in a fair, impartial and independent manner.
36.
More specifically, according to the source, the French courts allowed representatives
of Kazakhstan, Ukraine and the Russian Federation to exercise undue influence on the
extradition proceedings by authorizing them to unlawfully introduce documents into
evidence, including documents which formed the basis for the French courts’ decisions and
which were kept secret and not disclosed to the defence. The external influence included
pressure by BTA JSC Bank, which had been nationalized by the Government of
Kazakhstan and was clearly acting on the latter’s behalf. Under French law, the
representatives of Kazakhstan, Ukraine and the Russian Federation could not be recognized
as parties in the proceedings. The source notes, however, that Ukraine and the Russian
Federation, unlike Kazakhstan, were granted permission to send representatives to the
hearings in order to observe the proceedings and make statements through French lawyers
A/HRC/WGAD/2016/49
6
GE.17-00907
hired privately for this purpose. The source emphasizes that French law does not permit
requesting States to review all the evidence or to submit additional evidence directly to the
court for consideration.
37.
In this connection, the source claims that the French authorities kept in close contact
with the representatives of Kazakhstan, Ukraine and the Russian Federation. The source
mentions more specifically the alleged relationship between the Advocate General
responsible for extradition matters in the Office of the Principal State Prosecutor attached to
the appeals court in Aix-en-Provence and one of the French lawyers representing BTA JSC
Bank. The lawyer was involved in the case from the moment of Mr. Ablyazov’s arrest and
throughout the hearing before the Aix-en-Provence court and later continued to be closely
involved in the case, keeping an eye on the proceedings before the Court of Cassation and
the Lyons court.
38.
These details were revealed through the publication of declassified information
contained in a large number of confidential documents that were made public following the
collapse of the government of Viktor Yanukovych in Ukraine. The information disclosed
included documents from the French court and e-mails and telephone recordings allegedly
demonstrating that the Advocate General secretly provided documents to the judges in the
extradition case before the hearing in Aix-en-Provence. Reportedly, it was private
individuals acting on behalf of Ukraine, the Russian Federation and Kazakhstan who
transmitted these documents to the Advocate General. According to the source’s
allegations, the documents contain significant errors and false information. Mr. Ablyazov
never had the opportunity to challenge them before the court. Nevertheless, the judges used
the documents to prepare the decisions in favour of his extradition to either the Russian
Federation or Ukraine.
39.
The source considers that the role played by the Advocate General, who became
involved in illegal ex parte communication with an agent of the Government of
Kazakhstan, used information provided to him by the agent, including secretly obtained
documents, and secretly shared that information with the judges, illustrates the lack of
impartiality and the fundamental injustice that marred the judicial proceedings from the
outset. The source stresses that a criminal investigation has been initiated to shed light on
the offences allegedly committed by the Advocate General and the judges in the course of
the judicial proceedings on extradition.
40.
According to the source, in April 2015, an investigating judge questioned the judge
who had presided at the Aix-en-Provence court and the Advocate General and ordered their
telephone records be transmitted to the French police. The source asserts that the measures
taken by the investigating judge confirmed Mr. Ablyazov’s allegations regarding serious
irregularities. In tandem with the investigation currently under way, the source claims to
have received credible information from official sources that the French judicial authorities
consider Mr. Ablyazov’s complaint regarding the poor management of his case by the
judges and Advocate General in Aix-en-Provence to be an attempt to “destabilize” the
French judicial system.
41.
The source claims that the decision of the Aix-en-Provence court approving Mr.
Ablyazov’s extradition to Ukraine or the Russian Federation contains a significant number
of irregularities and refers to new, very specific information that was never submitted to the
defence. The source thus concludes that the Advocate General and the judges were in
possession of documents that were not shared with the defence. The source mentions that it
was thanks to a disclosure by the media that Mr. Ablyazov’s lawyer learned that the
Advocate General of Aix-en-Provence and the judges had allegedly hidden documents
obtained secretly through the representatives of Ukraine and the Russian Federation. These
documents were not submitted to the court; therefore, the defence was unable to challenge
the arguments they contained.
42.
In this connection, the source contends that it is clear from their disregard for the
serious consequences of Mr. Ablyazov’s prolonged detention and possible extradition, as
well as the systemic problems that were brought to light regarding the handling of
extradition cases by the French judicial authorities, that said authorities were determined to
A/HRC/WGAD/2016/49
GE.17-00907
7
secure the approval of the extradition requests and to conceal or overlook the ruses and
shortcuts used to that end.
43.
Fourthly, the Government of France limited Mr. Ablyazov’s access to his lawyer
and opportunities to be represented by him. The source contends that the Lyons court
prevented Mr. Ablyazov’s family’s lawyer and his Russian lawyer from speaking at the
hearings on 25 September 2014 (during the judicial proceedings regarding the extradition
request by Ukraine) and 17 October 2014 (during the judicial proceedings regarding the
extradition request by the Russian Federation). The court ruled that these two lawyers
would not be authorized to speak in their capacity as lawyers, experts or even witnesses.
44.
In addition, the source claims that, when the case came before the Court of
Cassation, Mr. Ablyazov was not given full access to his lawyers and documentation in
order to prepare his arguments for the Court at what were critical points in the judicial
proceedings. The purpose of the arguments was to challenge the decision of the Lyons court
approving the extradition request.
45.
The source contends that, on 27 November 2014, Mr. Ablyazov was preparing his
defence ahead of the hearing before the Court of Cassation when he was abruptly
transferred from Corbas Prison, near Lyons, to a prison in the Paris area, without prior
notice. The pieces of evidence he had collected, along with his personal effects, were left
behind at Corbas Prison. Then, on 8 December 2014, he was transferred once more, again
without prior notice, from the prison in the Paris area to Villefranche-sur-Saône Prison in
the Lyons area.
46.
On 12 December 2014, Mr. Ablyazov’s lawyer tried to meet with the administration
of Villefranche-sur-Saône Prison to agree on a way of facilitating his meetings with Mr.
Ablyazov in the light of the imminent submission of his case to the Court of Cassation. The
warden refused to meet with him. The lawyer was invited to return on Wednesday, 17
December 2014, as visits by lawyers were not permitted on 15 and 16 December 2014.
47.
The source claims that Mr. Ablyazov’s access to his lawyer and documents essential
to the preparation of his defence was hindered during the crucial period of preparation for
the filing of his case, i.e. from 27 November to 16 December 2014. This considerably
undermined his ability to prepare for the filing of his case with the Court of Cassation and
to adequately mount his defence. He later lost his case before the Court, which led to the
issuance by the Prime Minister of the decree sanctioning his extradition.
48.
The source also claims that, in addition to the times when Mr. Ablyazov’s lawyers
were completely barred from visiting him, the rules imposed by the French authorities
regarding prison visits made it nearly impossible to mount an effective defence. The
limitations imposed covered, inter alia, the maximum number of hours that could be
allocated for visits from Mr. Ablyazov’s lawyer and the type of materials that Mr.
Ablyazov could have access to while in prison. The impact of these restrictions was
exacerbated by the lengthy travel time for Mr. Ablyazov’s lawyers, by the fact that much of
the work required the support of interpreters and translators, and by the complexity of the
case itself: the file contains documents in French, Russian, Ukrainian, English and Kazakh,
while laws from seven separate judicial systems (French, Russian, Ukrainian, Kazakh,
British, European and international) are referred to.
49.
In addition to these elements, the source contends that Mr. Ablyazov had limited
financial resources and that this had negative repercussions on his ability to cover the travel
costs of his lawyers, who had to travel long distances to meet with him, and to reimburse
the costs associated with the interpretation and translation services. In practice, the costs,
logistics and time and schedule constraints meant that, because Mr. Ablyazov was deprived
of his liberty, he was able to have only limited meetings with his French lawyers.
50.
During the three hearings on the extradition cases that were held in France, Mr.
Ablyazov was unable to have confidential consultations with his team of lawyers, having
been seated apart from his lawyers in the hearing rooms. In Aix-en-Provence on 12
December 2013, consultations between Mr. Ablyazov and his lawyers were greatly
impeded by the fact that he had been seated in a glass box with two interpreters and by the
fact that the size of the hearing room made it impossible for him to have a confidential
A/HRC/WGAD/2016/49
8
GE.17-00907
conversation with his lawyers. Similarly, on 25 September and 17 October 2014 in Lyons,
confidential conversation was allegedly impossible.
51.
Fifthly, the Government of France was unable to provide adequate interpretation
services at the hearings. Simultaneous interpretation was impossible owing to the lack of
necessary equipment. Mr. Ablyazov received only partial summaries of the statements
made by the parties before the court. Furthermore, the Aix-en-Provence court and the
Lyons court both rejected the suggestion made by Mr. Ablyazov’s defence team, long
before the start of the hearings, to use a simultaneous interpretation agency that had already
provided the same services for the Grenoble court in the past. This decision was based on
the principle that Mr. Ablyazov should not benefit from better interpretation services than
those habitually provided to other defendants. Consequently, only 5 per cent of what was
said at the hearings was interpreted for Mr. Ablyazov.
52.
In addition to the inadequate interpretation equipment at the hearings, the source
stresses that France was unable to provide a timely and intelligible translation at several
critical stages of the judicial proceedings regarding Mr. Ablyazov. There was no interpreter
present at the time of his arrest, which means that he was not informed of the grounds for
his deprivation of liberty. He did not receive a Russian translation of the extradition request
by Ukraine until seven weeks into his detention. Similarly, the source states that the delays
in translating the court’s decision into Russian were inexcusable. The Russian translation of
the decision of the Lyons court of 24 October 2014 was not transmitted to him before the
deadline for the filing of his appeal of that decision with the Court of Cassation.
53.
Sixthly, the Government of France restricted his right to mount a defence and his
right to call and question witnesses and withheld important pieces of evidence. The source
contends that the judicial authorities limited Mr. Ablyazov’s right to a fair trial and
undermined his ability to adequately defend himself by not allotting him enough time to
prepare his defence, to gain access to the evidence against him and to present his own
evidence and witnesses.
54.
Regarding the undue restrictions placed on the presentation of his defence, the
source claims that the proceedings were needlessly and inappropriately hasty during the
hearings before the courts in Aix-en-Provence and Lyons. The hearing before the Aix-en-
Provence court, which dealt with the extradition requests by both Ukraine and the Russian
Federation, lasted only one day, despite the highly complex nature of the cases and the
amount of evidence. Taken together, the two files consist of thousands of pages when the
submissions of the defence are taken into account. The source stresses that it was not
reasonable to expect that each extradition request could be considered by the court in a half-
day.
55.
The Aix-en-Provence court was unable to give Mr. Ablyazov enough time to present
his arguments. Most of the time allocated for the hearing was used to repeat the allegations
against him and cite foreign law. The day was already well under way when Mr.
Ablyazov’s turn came to present his defence. After only a few minutes, the presiding judge
asked him to hurry up because “people had to take public transport to get home”. The
source reports that, after spending the day listening to all the allegations against him, Mr.
Ablyazov was forced to conclude his remarks after only 20 minutes, in violation of the
principle of equality of arms.
56.
According to the source, the manner in which the proceedings unfolded in Lyons
was scarcely any different. Despite the fact that Mr. Ablyazov had taken pains to submit his
observations in writing ahead of time, so that preliminary procedural issues could be
resolved more quickly and smoothly, several of these issues were broached only on the day
of the hearing. As a consequence, they were handled in the same manner as Mr. Ablyazov’s
request for conditional release and the extradition requests by the Russian Federation and
the Ukraine. The court refused to extend the hearing of the extradition requests beyond that
day. As a result, the time allotted for the presentation of Mr. Ablyazov’s defence was so
limited that the witnesses could not be called to testify.
57.
In preparation for the hearing before the Lyons court, the defence had registered, in
keeping with French procedural requirements, the names of seven witnesses, including
known leaders of the opposition in the Russian Federation, Ukraine and Kazakhstan and
A/HRC/WGAD/2016/49
GE.17-00907
9
representatives of civil society. Although they were present in the courtroom on the day of
the hearing, the judges did not allow them to testify. The defence considered the
presentation of this testimony as essential to the court’s understanding and assessment of
the political context and to the demonstration of the considerable risk of serious human
rights violations to which Mr. Ablyazov would be exposed if extradited to the Russian
Federation or Ukraine.
58.
The source considers that the French justice system did not show due diligence in
view of the lack of thoroughness on the part of the court and other officials. The source
claims that Mr. Ablyazov and his lawyers were continuously denied the possibility of
exercising their right to challenge the conduct of the judicial authorities in order to have it
corrected. The source alleges that several requests, applications, appeals and complaints
were filed by the defence concerning procedural violations but were summarily ignored or
dismissed.
Response from the Government
59.
The Working Group transmitted a communication to the Government of France on
20 May 2016, specifying that a reply was expected by 19 July 2016. However, the
Government did not reply until 25 July 2016, without justifying the delay or requesting an
extension. The Working Group cannot, therefore, consider the response as having been
transmitted within the required time.
Additional observations from the source
60.
The late reply of France was shared with the source, who submitted additional
observations. However, these observations did not include any new factual elements to be
transmitted to the Government.
Discussion
61.
The Working Group is confronted with a highly complex case that involves judicial
proceedings against Mr. Ablyazov in various countries. Mr. Ablyazov is a national of
Kazakhstan, where a number of proceedings are pending against him. It is alleged that all
his current problems stem from his status as a political opponent of his country’s
Government. He was a political refugee in one country, then resided in another, where
some of his family members were secretly detained and sent back to their country of origin
in violation of their legal status. They have since been released and have returned to their
country of residence. Mr. Ablyazov himself was arrested in France following the issuance
of an INTERPOL red notice. After his arrest in France, another country requested his
extradition for other financial crimes. These facts have not been contested.
62.
Under these conditions — and even though the main issue before the Working
Group is Mr. Ablyazov’s detention in France — it was clear that further information was
needed from some of the other States concerned in order to fully understand the
circumstances that led to his detention and the allegation that he is being persecuted. The
Working Group must carry out its tasks with discretion, transparency, impartiality and
rectitude and must rely on objective and dependable facts based on appropriate evidentiary
standards (see the Code of Conduct for Special Procedures Mandate-holders of the Human
Rights Council, art. 8 (a) and (c)). Moreover, the Working Group must take account of all
sources of information it considers credible and relevant and must cross-check the
information it receives to the best extent possible (see the Manual of Operations of the
Special Procedures of the Human Rights Council, para. 23). The Working Group is of the
view that it must be faithful to its mandate from the Human Rights Council and examine all
the circumstances of the human rights violations that might render a detention arbitrary, in
keeping with the five categories of arbitrary detention defined in its methods of work. In the
present case, the Working Group considered it necessary to request information from the
Russian Federation, Kazakhstan and Ukraine. The Governments of these countries have
replied and the Working Group has carefully assessed the huge quantity of information it
received.
A/HRC/WGAD/2016/49
10
GE.17-00907
63.
The Working Group reminds all States Members of the United Nations that they
have a duty to cooperate with it. This duty includes taking a zero-tolerance approach to any
act of intimidation or reprisals against a source that submits information to the Working
Group. In the present case, the Working Group has received information about legal action
taken against relatives of Mr. Ablyazov in a third country on the basis of the
communication sent by the Working Group to one of the aforementioned three States. The
Working Group considers that this misuse of its communication constitutes a further form
of reprisals against the alleged victim and urges the States to refrain from resorting to any
similar practices in future.
64.
The Working Group has duly weighed the detailed information provided by the
source. It notes that the facts as submitted by the source regarding the central issue of
detention in France are consistent with the various decisions of the French justice system.
Therefore, the source’s credibility and the reliability of the information provided are not, in
essence, in doubt.
65.
The Working Group notes that Mr. Ablyazov undertook a meticulous appeal process
before the French courts up to the highest level, namely the Court of Cassation and the
Council of State, in addition to the appeal currently before the Constitutional Council. In
each challenge, he raised some of the arguments submitted here. The Court of Cassation
handed down its ruling on 5 October 2016, finding that his detention in connection with the
extradition request by Ukraine had already lasted three years, which was excessive. The
Working Group will proceed with its discussion of the six specific points raised in the
source’s application.
66.
The source asserts, firstly, that international law requires all persons who are
arrested to be immediately informed of the reasons for their arrest and detention and
promptly notified of the charges against them. In the present case, the source itself states
that an INTERPOL notice had been issued at the time of the arrest. France states that the
detention was confirmed the very next day by a judge. It can thus be inferred that Mr.
Ablyazov was made aware of the reasons for his arrest. Subsequently, there was a delay
before a notification could be drawn up in a language that Mr. Ablyazov understands, but
the Working Group does not consider, in this case, that the time taken to produce the
translation led to the violation of any rights.
67.
Secondly, the source asserts that the proceedings against Mr. Ablyazov did not take
place within a reasonable time. However, the numerous legal challenges filed by Mr.
Ablyazov may have contributed to the duration of his detention. Nevertheless, the Court of
Cassation found in its recent ruling that the proceedings in connection with the extradition
request by Ukraine, which lasted three years and during which time Mr. Ablyazov was
detained, were excessively long. Even if the extradition request by the Russian Federation
were to be considered separately, the detention would also be deemed excessively long,
since the entire period of detention has already exceeded three years. It is clear to the
Working Group that, in the case of an extradition procedure, this overall duration of
detention is especially excessive and violates the right to a prompt hearing. Accordingly, on
this basis alone, the detention can be considered as having become arbitrary owing to its
excessive length, in violation of articles 9 (4) and 14 (3) (c) of the International Covenant
on Civil and Political Rights. This violation falls within category III.
68.
Thirdly, the source challenges the independence and impartiality of the judiciary, but
on the basis of insinuations that the Working Group is unable to corroborate for want of
sufficient evidence. Accordingly, this argument should be rejected.
69.
Fourthly, the source asserts that the prison authorities limited Mr. Ablyazov’s access
to his lawyer. Again, the source makes this assertion without providing objective evidence;
therefore, the Working Group is not in a position to come to a decision and rejects this
argument.
70.
Fifthly, the source claims that the authorities failed to provide the necessary
interpretation services at the hearings. However, the Working Group is of the view that, in
an extradition procedure and under the circumstances of the present case, especially the fact
that Mr. Ablyazov always had the counsel of his lawyers, such a violation, if substantiated,
A/HRC/WGAD/2016/49
GE.17-00907
11
would not be of sufficient consequence to lead to a finding of arbitrary detention. The
argument should therefore be rejected.
71.
Sixthly and finally, the source contends that the authorities limited Mr. Ablyazov’s
ability to mount a defence by preventing him from calling and questioning witnesses. The
source also contends that key pieces of evidence were not transmitted to Mr. Ablyazov. In
the Working Group’s opinion, neither of these two arguments can succeed. The extradition
procedure is not intended to determine Mr. Ablyazov’s responsibility. While Mr. Ablyazov
is correct in claiming these rights, they would have greater bearing on the consideration of
the merits of the case. The Working Group does not consider that a violation in relation to
either of these aspects could be of sufficient consequence to justify a finding of arbitrary
detention. The argument should therefore be rejected.
72.
The Working Group is fully aware of the specificities of the procedure under way in
France. It is an extradition matter not a criminal trial. In criminal matters, it is universally
agreed that detention must remain the exception rather than the rule. It is inconceivable that
this principle would not apply in non-criminal procedures: indeed, insofar as extradition is
an administrative procedure, detention should be even more exceptional. Accordingly, the
issue at the heart of the present case is the rationale for Mr. Ablyazov’s detention. The
parties do not provide enough information in this regard, but it is clear that the French
judicial bodies, in rejecting the request for conditional release, have provided an answer to
this question: if released, Mr. Ablyazov would have the means of jeopardizing the evidence
against him and evading justice. This rationale, according to the highest French court, does
not, however, justify Mr. Ablyazov’s being held for three years in connection with the
extradition request by Ukraine. The Working Group agrees with this conclusion and
extends it to the request by the Russian Federation as well. It notes that the Government of
France has not excluded release under judicial supervision, which would be less
constraining than detention, particularly since Mr. Ablyazov’s detention has already been
excessively long.
73.
The transmission to other mandate holders of all relevant information relating to
other human rights violations that have been brought to the Working Group’s attention
through the communication procedure is a well-established practice. In this connection,
paragraph 33 (a) of the methods of work states that: “If the Working Group, while
examining allegations of violations of human rights, considers that the allegations could be
more appropriately dealt with by another working group or special rapporteur, it will refer
the allegations to the relevant working group or special rapporteur within whose
competence they fall, for appropriate action.” Accordingly, the Working Group will
continue its practice of transmitting information to all the relevant mandate holders,
including the Special Rapporteur on torture, as will be done in this case because of the
allegations of torture made.
Disposition
74.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mukhtar Ablyazov, being in contravention of articles 9
(4) and 14 (3) (c) of the International Covenant on Civil and Political Rights, is
arbitrary.
75.
Consequently, the Working Group is of the view that France must take the necessary
steps to end the arbitrary detention while providing Mr. Ablyazov with the most appropriate
reparation.
76.
In keeping with paragraph 33 (a) of its methods of work, the Working Group refers
the matter to the Special Rapporteur on torture.
Follow-up procedure
77.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Mr. Ablyazov has been released and, if so, on what date;
A/HRC/WGAD/2016/49
12
GE.17-00907
(b)
Whether compensation or other reparations have been made to Mr. Ablyazov;
(c)
Whether an investigation has been conducted into the violation of Mr.
Ablyazov’s rights and, if so, what the outcome of the investigation was;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of France with its international obligations in line with
the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
78.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example, through a visit by the
Working Group.
79.
The Working Group requests the source and the Government to provide the above
information within six months of the date of the transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
80.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.1
[Adopted on 23 November 2016]
1 See Human Rights Council resolution 33/30, paras. 3 and 7.