Belgium/Kazakhstan: Judicial harassment against Ms. Botagoz Jardemalie

30/07/2020
Urgent Appeal

KAZ 001 / 0720 / OBS 086
Judicial harassment
Kazakhstan
July 30, 2020

The Observatory for the Protection of Human Rights Defenders, a partnership of FIDH and the World Organisation Against Torture (OMCT), requests your urgent intervention in the following situation in Belgium / Kazakhstan.

Description of the situation:

The Observatory has been informed by reliable sources about the judicial harassment against Ms. Botagoz Jardemalie, a Kazakh human rights defender, licensed attorney in the State of New York and outspoken critic of the Kazakh regime, who was granted political asylum in Belgium in 2013. In addition to her social network awareness-raising activities, Ms. Jardemalie advocates against the persecution of political prisoners in Kazakhstan with Members of the European Parliament in Brussels, including by supporting the adoption of European Parliament’s resolutions on Kazakhstan. As a lawyer, she also defends dissidents as well as opponents to the Kazakh regime.

According to the information received, despite her refugee status in Belgium, for years Ms. Jardemalie has been facing continuous harassment by Kazakh authorities in an attempt to intimidate, silence, and punish her for her work as a lawyer and human rights defender. Ms. Jardemalie has notably been accused by the Kazakh authorities of embezzlement of funds at BTA Bank as well as money laundering. This persecution seems to be politically motivated, especially when considering that she has been a lawyer of the main political opponent of the regime in Kazakhstan, Mr. Mukhtar Ablyazov[1].

At the end of November 2019, the Criminal Court of First Instance of Brussels sentenced two German and one Russian nationals to two years in prison for illegally surveilling Ms. Jardemalie in 2014-2015 on the territory of Belgium. According to the criminal case, the men were searching for information about her contacts and travels and tried to bribe Ms. Jardemalie’s lawyer in Brussels to get access to her legal files and her residence address. Another criminal investigation is ongoing in Belgium in connection with illegal surveillance of Ms. Jardemalie on Belgian soil by another individual.

In spite of this, according to the information received, in April 2018 the Minister of Justice of Belgium accepted international mutual legal assistance (MLA) requests filed by Kazakhstan a month before, without carrying out proper verification required under the law, failing both to protect a refugee and to respect the rights of a lawyer and the legal profession.

At the request of the Kazakh authorities, on October 1, 2019, the Belgian police, accompanied by two unidentified Kazakh officers, searched Ms. Jardemalie’s Brussels apartment. Despite the request of the family members present and in the absence of Ms. Jardemalie, the police refused to present a search warrant. A large number of professional documents and computer equipment were seized. In the present case, no jurisdictional remedy in Belgium is currently provided to enable Ms. Jardemalie to protect her fundamental rights and prevent further violation of those of her clients, including Kazakh political activists, journalists and victims of torture[2].

The Observatory believes that Kazakhstan has been persecuting Ms. Jardemalie in Belgium in order to force her to stop defending dissidents and opponents of the Kazakh authorities, to obtain information on Kazakh political opponents, victims of human rights violations and human rights activists, but also to force her to return to Kazakhstan and testify against the main political opponent of the current authorities, Mr. Mukhtar Ablyazov. Furthermore, in November 2017, her brother, Mr. Iskander Yerimbetov, was arrested and tortured in Kazakhstan and it is widely recognised that Mr. Yerimbetov’s detention, and his repeated torture, were intended to pressure Ms. Jardemalie to return to Kazakhstan[3].

The above-mentioned developments are the latest in a series of acts of harassment by Kazakh authorities against Ms. Jardemalie. In 2013, at Kazakhstan’s request, INTERPOL had issued a Red Notice targeting Ms. Jardemalie, which was later cancelled for non-compliance with INTERPOL’s rules against political abuses[4]. Besides, the Kazakh authorities filed two extradition requests[5] with respect to Ms. Jardemalie, both of which were refused by the Ministry of Justice of Belgium.
The Observatory requests the immediate end of any harassment against Ms. Botagoz Jardemalie and her family, including at the judicial level, and the end of any cooperation between Belgium and Kazakhstan with regards to the present case.

Actions requested:

Please write to the authorities in Belgium, urging them to:

i. Guarantee, in all circumstances, the physical integrity and psychological well-being of Ms. Jardemalie and protect her against persecution and reprisals.

ii. Put an end to any form of international cooperation, including judicial cooperation, with Kazakhstan regarding Ms. Jardemalie, and refuse her extradition, on account of the failure by the Kazakh authorities to ensure respect for basic international human rights and fair trial standards, which would expose Ms. Jardemalie to a risk of persecution and/or other human rights violations upon her return to Kazakhstan;

iii. Immediately cease any transmission of privileged and confidential information and materials regarding Ms. Jardemalie and her clients to the Kazakh authorities, considering the risk of misuse of such information and possible reprisal against individuals in Kazakhstan and abroad;

iii. Thoroughly investigate the cooperation of the Belgian police with the authorities of Kazakhstan, in violation of the protection of the fundamental rights of a lawyer holding a refugee status granted by Belgium and contrary to previous decisions taken by the Ministry of Justice of Belgium in regard of Ms. Jardemalie;

iv. Provide an effective remedy against the violations of the fundamental rights suffered by Ms. Jardemalie in the framework of the said mutual legal assistance;

v. Respect the provisions concerning cases of searches at lawyers’ premises, according to Article 8 of the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights: these include the obligation, for a state party to the Convention, including Belgium, to ensure that strict measures are applied when searching the premises of a lawyer in order to guarantee the confidentiality of lawyer-client relations to every extent possible, that any interference with professional secrecy is necessary and proportionate to the legitimate aim pursued and that adequate safeguards are attached to the procedure;

vi. Respect the UN Basic Principles on the Role of Lawyers, in particular its Principle 16(a)

Addresses:

· K. Geens, Minister of Justice, Boulevard de Waterloo, 115, 1000 Brussels, Belgium, fax: 0032.2.542.80.00, E-mail : info.kabinet@just.fgov.be

· Direction générale « Législation, Libertés et Droits fondamentaux », Boulevard de Waterloo, 115, 1000 Brussels, Belgium, info@just.fgov.be

Please also write to the diplomatic mission or embassy of Belgium located in your country.

Please write to the authorities in Kazakhstan, urging them to:

i. Guarantee, in all circumstances, the physical integrity and psychological well-being of Ms. Jardemalie;

ii. Put an end to the judicial harassment against Ms. Jardemalie and ensure she is able to carry out her legitimate activities without any hindrance and fear of reprisals in all circumstances;

iii. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards, including the UN Declaration on Human Rights Defenders, as well as international instruments ratified by Kazakhstan.

Addresses:

· H.E. Kassym-Jomart Tokayev, President of Kazakhstan, Fax: +7 71 72 74 56 31; Twitter: @TokayevKZ
· Mr. Yerlan Turgumbayev, Minister of Internal Affairs, Email: Kense@mvd.kz
· Mr. Marat Beketayev, Minister of Justice, Email: kanc@adilet.gov.kz
· H.E. Ms. Zhanar Aitzhanova, Ambassador Extraordinary and Plenipotentiary, Permanent Representative of the Republic of Kazakhstan to the United Nations Office and other international organizations in Geneva, Switzerland, Email: mission@kazakhstan-geneva.ch
· H.E. Mr. Almaz Khamzayev, Ambassador of the Republic of Kazakhstan in Brussels, Belgium, Email: kazakhstan.embassy@swing.be

Please also write to the diplomatic mission or embassy of Kazakhstan located in your country.

***
Paris-Geneva, July 30, 2020
Kindly inform us of any action undertaken quoting the code of this appeal in your reply.

The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and the World Organisation Against Torture (OMCT). The objective of this programme is to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members ofProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.

To contact the Observatory, call the emergency line:
• E-mail: Appeals@fidh-omct.org
• Tel and fax FIDH: + 33 (0) 1 43 55 25 18 / +33 1 43 55 18 80
• Tel and fax OMCT + 41 22 809 49 39 / + 41 22 809 49 29

___

[1] Ms. Jardemalie worked for three years for the largest privately-owned bank in Kazakhstan, BTA Bank, before it passed into the hands of the state in 2009. The former majority shareholder and head of the bank was the main political opponent of the Kazakh authorities, Mr. Mukhtar Ablyazov . Considering bank’s nationalisation “illegal” Ms. Jardemalie quit BTA Bank in March 2009. She moved out of Kazakhstan in 2009. She began to campaign for the respect of fundamental rights in Kazakhstan and to work for the defense of dissidents of the regime. In 2013, she received political asylum in Belgium. Mr. Ablyazov himself has been accused of embezzling money from BTA Bank while serving as its chairman. In 2016, France’s supreme administrative court - Council of State - refused to extradite him to Russia because of the political nature of the proceedings against him. The Council of State concluded that Kazakhstan, Russia and Ukraine had acted in concert seeking to prosecute Mr. Ablyazov, using BTA-related allegations, for political purposes.
[2] In Belgium, no legislation is in place to contest a decision of mutual legal assistance, seizures carried out within that framework and data transmission to the demanding State. Ms. Jardemalie’s lawyers have lodged complaints before administrative, civil and penal tribunals but so far, none of them have asserted jurisdiction.
[3] In October 2018, the authorities sentenced him to seven years in prison on allegations of fraud. Human rights groups believe the case to have been politically motivated. n November 20, 2018, the United Nations Working Group on Arbitrary Detention found that Mr. Yerimbetov’s detention was arbitrary and unlawful, in violation of Articles 9 (right to liberty and security of person) and 14 (right to fair trial) of the International Covenant on Civil and PoliticalRights, and called for his immediate release (Opinion No. 67/2018). In December 2019, he was released under international pressure, in a poor state of health. Human rights activists from Kazakhstan and international organisations, members of the United States Congress, US State Department, members of the European Parliament and members of the Parliamentary Assembly of Council of Europe included Mr. Yerimbetov in the list of political prisoners.
[4] Article 2 of the Constitution of the International Criminal Police Organisation-INTERPOL states that the aims of INTERPOL are “to ensure and promote the widest possible mutual assistance […] in the spirit of the “Universal Declaration of Human Rights”, and Article 3 reads that “It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character”.
[5] Ms. Jardemalie’s lawyers have not been able to get access to the case file, hence the grounds outlined by the Kazakh authorities to justify the extradition requests have remained unknown.

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