Belgium / Kazakhstan: Judicial harassment against Ms. Botagoz Jardemalie

The Observatory for the Protectionof Human Rights Defenders, a partnership of FIDH and the World OrganisationAgainst Torture (OMCT), requests your urgent intervention in the followingsituation in Belgium / Kazakhstan.

Description of the situation:

The Observatory has been informed by reliable sources about the judicialharassment against Ms. BotagozJardemalie, a Kazakh human rights defender, licensed attorney inthe State of New York and outspoken critic of the Kazakh regime, who wasgranted political asylum in Belgium in 2013. In addition to her social networkawareness-raising activities, Ms. Jardemalie advocates against the persecutionof political prisoners in Kazakhstan with Members of the European Parliament inBrussels, including by supporting the adoption of European Parliament'sresolutions on Kazakhstan. As a lawyer, she also defends dissidents as well asopponents to the Kazakh regime.

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

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

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

At the request of the Kazakh authorities, on October 1, 2019, theBelgian police, accompanied by two unidentified Kazakh officers, searched Ms.Jardemalie’s Brussels apartment. Despite the request of the family memberspresent and in the absence of Ms. Jardemalie, the police refused to present asearch warrant. A large number of professional documents and computer equipmentwere seized. In the present case, no jurisdictional remedy in Belgium iscurrently provided to enable Ms. Jardemalie to protect her fundamental rightsand prevent further violation of those of her clients, including Kazakhpolitical 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 andopponents of the Kazakh authorities, to obtain information on Kazakh politicalopponents, victims of human rights violations and human rights activists, butalso to force her to return to Kazakhstan and testify against the mainpolitical opponent of the current authorities, Mr. MukhtarAblyazov. Furthermore,in November2017, her brother, Mr. Iskander Yerimbetov, was arrested and tortured inKazakhstan and it is widely recognised that Mr. Yerimbetov’s detention, and hisrepeated torture, were intended to pressure Ms. Jardemalie to return toKazakhstan[3].

The above-mentioned developments are the latest in a series of acts ofharassment by Kazakh authorities against Ms. Jardemalie. In 2013, atKazakhstan’s request, INTERPOL had issued a Red Notice targeting Ms.Jardemalie, which was later cancelled for non-compliance with INTERPOL’s rulesagainst 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 ofJustice of Belgium.

The Observatory requests theimmediate end of any harassment against Ms. Botagoz Jardemalie and her family,including at the judicial level, and the end of any cooperation between Belgiumand Kazakhstan with regards to the present case.

Actions requested:

Please write to the authorities inBelgium, urging them to:

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

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

iii. Immediately cease anytransmission of privileged and confidential information and materials regardingMs. Jardemalie and her clients to the Kazakh authorities, considering the riskof misuse of such information and possible reprisal against individuals in Kazakhstanand abroad;

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

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

v. Respect the provisions concerningcases of searches at lawyers’ premises, according to Article 8 of the EuropeanConvention on Human Rights (ECHR), as interpreted by the European Court ofHuman Rights: these include the obligation, for a state party to theConvention, including Belgium, to ensure that strict measures are applied whensearching the premises of a lawyer in order to guarantee the confidentiality oflawyer-client relations to every extent possible, that any interference withprofessional secrecy is necessary and proportionate to the legitimate aimpursued and that adequate safeguards are attached to the procedure;

vi. Respect the UN Basic Principleson 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

· Directiongénérale « Législation, Libertés et Droits fondamentaux », Boulevardde Waterloo, 115, 1000 Brussels, Belgium, info@just.fgov.be

Please also write to thediplomatic 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 judicialharassment against Ms. Jardemalie and ensure she is able to carry out her legitimateactivities without any hindrance and fear of reprisals in all circumstances;

iii. Ensure in all circumstancesrespect for human rights and fundamental freedoms in accordance withinternational human rights standards, including the UN Declaration on HumanRights Defenders, as well as international instruments ratified by Kazakhstan.

Addresses:

· H.E.Kassym-JomartTokayev,President of Kazakhstan, Fax: +771 72 74 56 31; Twitter: @TokayevKZ

· Mr.Yerlan Turgumbayev, Ministerof Internal Affairs, Email: Kense@mvd.kz

· Mr.Marat Beketayev, Minister ofJustice, Email: kanc@adilet.gov.kz

· H.E. Ms. Zhanar Aitzhanova, Ambassador Extraordinary and Plenipotentiary,Permanent Representative of the Republic of Kazakhstan to the United NationsOffice and other international organizations in Geneva, Switzerland, Email: mission@kazakhstan-geneva.ch

· H.E. Mr. AlmazKhamzayev, Ambassador of the Republic of Kazakhstan in Brussels, Belgium,Email: kazakhstan.embassy@swing.be

Please also write to thediplomatic 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 thisappeal in your reply.

The Observatory for the Protectionof Human Rights Defenders (the Observatory) was created in 1997 by FIDH and theWorld Organisation Against Torture (OMCT). The objective of this programme isto prevent or remedy situations of repression against human rights defenders.FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanismimplemented 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

• Teland 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 inKazakhstan, BTA Bank, before it passed into the hands of the state in 2009. Theformer majority shareholder and head of the bank was the main politicalopponent of the Kazakh authorities, Mr. Mukhtar Ablyazov. Consideringbank's nationalisation “illegal” Ms. Jardemalie quit BTA Bank in March2009. She moved out of Kazakhstan in 2009. She began to campaign for therespect of fundamental rights in Kazakhstan and to work for the defense ofdissidents of the regime. In 2013, she received political asylum in Belgium.Mr. Ablyazov himself has been accused of embezzling money from BTA Bankwhile serving as its chairman. In 2016, France’s supreme administrative court -Council of State - refused to extradite him to Russia because of the politicalnature of the proceedings against him. The Council of State concluded thatKazakhstan, 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 thedemanding State. Ms. Jardemalie’s lawyers have lodged complaints beforeadministrative, civil and penal tribunals but so far, none of them haveasserted jurisdiction.

[3] In October2018, the authorities sentenced him to seven years in prison on allegations offraud. Human rights groups believe the case to have been politically motivated.n November 20, 2018, the United Nations Working Group on Arbitrary Detentionfound that Mr. Yerimbetov’s detention was arbitrary and unlawful, in violationof Articles 9 (right to liberty and security of person) and 14 (right to fairtrial) of the International Covenant on Civil and Political Rights, and called for his immediate release (OpinionNo. 67/2018). In December 2019, he was released under international pressure,in a poor state of health. Human rights activists from Kazakhstan andinternational organisations, members of the United States Congress, US StateDepartment, members of the European Parliament and members of the ParliamentaryAssembly of Council of Europe included Mr. Yerimbetov in the list of politicalprisoners.

[4] Article 2 ofthe Constitutionof the International Criminal Police Organisation-INTERPOLstatesthat the aims of INTERPOL are “to ensure and promote the widest possible mutualassistance […] in the spirit of the “Universal Declaration of Human Rights”,and Article 3 reads that “It is strictly forbidden for the Organization toundertake any intervention or activities of a political, military, religious orracial character”.

[5] Ms.Jardemalie’s lawyers have not been able to get access to the case file, hencethe grounds outlined by the Kazakh authorities to justify the extraditionrequests have remained unknown.