CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 3 mars 2022

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s780F5245 { border:0.75pt solid #000000; clear:both } .sA5881AC3 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-top:1pt; padding-right:4pt; padding-left:4pt } .s9191A817 { margin-top:0pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-right:4pt; padding-left:4pt; padding-bottom:1pt } .s59272B2C { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s13C79B1A { margin-top:0pt; margin-bottom:18pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s63658818 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .sA2548810 { margin-top:14pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:10pt } .s718D1C37 { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .sED30E5A2 { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-after:avoid } .s91F6AE57 { font-family:Arial; font-size:10pt; font-weight:bold } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s8B983D37 { text-transform:none } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .s90EB8675 { margin-top:14pt; margin-left:53pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:8.2pt; font-family:Arial; font-weight:bold } .s80E1EC4C { margin-left:-29.19pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7BC87A4D { margin-top:14pt; margin-left:53pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1pt; font-family:Arial; font-weight:bold } .s448F0C15 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s4F597665 { width:33.22pt; display:inline-block } .s562DAB76 { width:148.76pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }       FIRST SECTION CASE OF SHORAZOVA v. MALTA (Application no. 51853/19)     JUDGMENT   Art 1 P1 • Control of the use of property • Lack of procedural safeguards for lengthy freezing of all applicant’s property in Malta at legal assistance request of Kazakh authorities, likely tainted by political persecution motives Art 6 § 1 (criminal) • Reasonable time • Duration of constitutional redress proceedings, lasting almost five years, not excessive in the specific circumstances of the case   STRASBOURG 3 March 2022 FINAL   03/06/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Shorazova v. Malta, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Péter Paczolay, President,   Krzysztof Wojtyczek,   Alena Poláčková,   Erik Wennerström,   Lorraine Schembri Orland,   Ioannis Ktistakis,   Davor Derenčinović, judges, and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   51853/19) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Austrian national, Ms Elnara Shorazova (“the applicant”), on 1 October 2019; the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Article 6 § 1 (civil limb) in relation to the ordinary proceedings, Article 1 of Protocol No. 1 to the Convention and Article 6 § 1 in relation to the length of the constitutional redress proceedings and to declare inadmissible the remainder of the application; the indication by the Austrian Government that they did not wish to exercise their right to intervene in the proceedings in accordance with Article   36   § 1 of the Convention and Rule 44   § 1   of the Rules of Court; the parties’ observations; Having deliberated in private on 1 February 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns proceedings relating to a request for legal assistance and a consequent freezing order on the applicant’s property, which had its basis in a request in connection with criminal proceedings ongoing in Kazakhstan against her. It raises issues under Article 1 of Protocol No. 1 to the Convention and Article 6. THE FACTS 2.     The applicant was born in 1976 in Kazakhstan and lives in Vienna. She was represented by Dr J. Giglio , a lawyer practising in Valletta. 3.     The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. THE CIRCUMSTANCES OF THE CASE Background 5.     The applicant is the widow of Rakhat Aliyev also known as Shoraz (hereinafter referred to as R.A.). The latter was, prior to his marriage to the applicant, married to D.N., the daughter of Nursultan Nazarbayev (hereinafter N.N.) who occupied a high-ranking position in the Communist party of Kazakhstan in 1983 when R.A. got married. In 1991 N.N. became the President of Kazakhstan and remained so until March 2019. 6.     Between 1991 and 2002 R.A. was appointed by his then father-in-law to various government positions, until tensions arose between them, allegedly following United States reports that indicated that R.A. was being considered as a successor to N.N. At that point, in 2002, R.A. was appointed as ambassador to Austria. In 2005 R.A. returned to Kazakhstan as Vice ‑ minister of Foreign Affairs. 7.     Following the murder of the Kazakhstan opposition leader in 2006, and suggestions by certain Kazakh mass media (controlled by R.A.) to introduce democratic reform, tensions again arose between R.A. and N.N. Consequently, R.A. was again appointed as ambassador to Austria. 8.     In May 2007 N.N. announced constitutional changes which would have further strengthened his position as ruler of Kazakhstan. R.A. openly expressed his criticism to such changes and declared that he would run for president in the 2012 election. In the same year he learnt that he was divorced from his wife D.N., although allegedly he had never been notified of the divorce procedure, in which he claimed his signature had been falsified. D.N. took control of all their property and the care and custody of their three children. 9.     Immediately thereafter, the Kazakh government issued against R.A. an arrest warrant and a red notice through Interpol and lodged various requests for legal assistance with western authorities which continued until R.A. died in prison in Austria in February 2015. 10.     In the meantime, in 2009, R.A. married the applicant and during the period 2009-2013 took residence in Malta, where he continued to advocate for democratic reforms in Kazakhstan. Proceedings in European States Austria (a)    First extradition request 11.     On 25 May 2007 Austria received an extradition request from Kazakhstan, on the basis that R.A. and others had committed the crimes of kidnapping several people, appropriating their assets through blackmail and using forged documents. 12 .     The request was denied on 7 August 2007. Having considered reports from the U.S. Department of State and Human Rights Watch, the Austrian court considered that there was reason to believe that the criminal proceedings in Kazakhstan would be conducted in a manner contrary to the European Convention on Human Rights (in particular its Articles 3 and 6). Indeed, already during the extradition proceedings in Austria, the Kazakh authorities had repeatedly breached the principles of due process. It also noted that a certain A.D. had testified that he had been paid one million United States Dollars (USD) to testify against R.A. and was offered another one million USD to procure information about the way R.A. was being guarded in Austria and whether his security agents were carrying arms. Further, suspicions arose as to the divorce proceedings of R.A. in which his signature had been forged, which raised concerns in respect of the way in which criminal proceedings instituted would be carried out. The court further suspected that the criminal prosecution of R.A. and others connected to him had been the result of his political opinions which ran counter to those of the President of Kazakhstan. (b)    First criminal proceedings 13.     In 2007 criminal proceedings were instituted against R.A. on charges of money laundering, in particular, concealing assets originating from crimes under the Kazakhstan criminal code. On 11 July 2007 a freezing order issued in those proceedings was revoked as no evidence showed any criminal activity. The file showed that the money laundering suspicions were notified by banking institutes solely on the basis of reports in the media, and the cash flows at issue, at least partly, were traceable on the grounds of the documents submitted. 14.     The criminal proceedings were discontinued on 29 August 2007. (c)    Second criminal proceedings 15.     In 2010 a further criminal investigation ensued against the applicant and R.A. based on claims of money laundering by the Kazakh authorities. The proceedings were discontinued. (d)    Second extradition request 16.     In 2011 the Kazakh authorities requested the extradition of R.A. to expiate his sentence (see paragraphs 33 and 34 below in relation to the proceedings in Kazakhstan). 17.     On 16 June 2011 the request was refused, it was noted that the judgments had been given in absentia and that it could not be ruled out that the case had a political character. (e)    Third criminal proceedings 18.     In 2014 the Austrian authorities issued an arrest warrant against R.A. and other persons, and the former voluntary submitted himself to the authorities. R.A. and the applicant had left Malta precisely for this purpose. The proceedings in respect of R.A. were discontinued in 2015 before the start of the trial as he was found dead in the Austrian prison. 19 .     By an appeal judgment of 14 September 2016, the co-accused persons were acquitted of the charge of murder but found guilty of inter alia , kidnapping, threatening and ill-treating other persons, with the aid of R.A. In its judgment the court noted that there were considerable indications that the victims (two bank managers) had been killed by the Kazakh Security Service and that the entire abduction and murder case had been construed retroactively in order to eliminate R.A. and persons close to him. Further, it could not be ruled out that official Kazakh authorities might be behind a foundation which had invested about ten million euros (EUR) in persecution of R.A. Germany 20.     In 2010 a criminal investigation was initiated in Germany against the applicant and R.A. based on claims of money laundering by the Kazakh authorities. 21.     The proceedings were discontinued on 5 January 2016 as the crimes at issue were not ascertainable. Liechtenstein 22.     In 2013, and again in 2015, the Kazakh authorities sought legal assistance from Liechtenstein, as result of which criminal investigations were initiated against the applicant and R.A. in Liechtenstein and a freezing order was issued on 16 December 2015, for two years, in relation to their property. 23.     The investigations were discontinued on 29 June 2015 and the freezing order was lifted on 18 December 2017 as the requesting State had not substantiated a motion for the extension of the order. 24.     The request for legal assistance was refused by the Royal Regional Court on 30 May 2018, inter alia , because it was contrary to public order, in particular due to the conduct of the National Security Committee of the Republic of Kazakhstan (KNB) in connection with the prosecution of R.A., and the fact that the requesting authority was continuing investigations against R.A. post mortem. 25.     On 6 September 2018 the Princely High Court upheld the complaint of the public prosecutor, overturned the decision and ordered the Royal Regional Court to continue the judicial assistance. 26.     The applicant and other involved persons filed an appeal which was dismissed by the Princely Supreme Court on 1 February 2019. 27.     The appellants then lodged individual appeals against this order with the State Court of Justice, which on 2 September 2019 considered that the appellants constitutionally guaranteed rights had been violated, in part, mainly as concerned the non-arbitrary treatment. It thus upheld the appeals, save in respect of the deceased R.A., and referred the case back to the Supreme Court. 28.     In particular, it considered that a foreign request may only be complied with if public order or other essential interests of the Principality of Liechtenstein were not violated. Examining the human rights situation in Kazakhstan, it noted that international reports indicated that proceedings there would not meet the requirements of a fair trial. The Secret Service was a special body directly subordinate to the President (whose immediate predecessor in office was R.A.’s former father-in-law) and there were indications that R.A.’s former companions had been arbitrarily arrested and mistreated in order to obtain confessions. The reports also showed the dominance of the President and the ruling party and the lack of an independent judiciary and of rule of law procedures. Violations by law enforcement officials and judicial officials were explicitly mentioned together with harassment leading to death, torture or ill-treatment of prisoners and detainees, and arbitrary arrests. These reports had also been relied on by the European Court of Human Rights in Baysakov and Others v.   Ukraine (no.   54131/08, § 49, 18 February 2010 ). It further emerged from the final report of the Austrian Federal Ministry of Justice of 11 March 2009 that the abduction of R.A. had been planned and that he had subsequently been murdered. Other reports showed that KNB had been tasked with repatriating R.A. and other persons, possibly also by committing criminal acts. Further, it was credible that the applicant and R.A. were persecuted for political reasons and that the principles of a fair trial were not observed in the requesting State, in particular in relation to R.A. It thus concluded that the request for legal assistance was contrary to public order and thus could not be entertained by Lichtenstein. It followed that the decision of 6 September 2018 of the Princely High Court upholding the prosecutor’s decision had to be annulled. 29.     On appeal, on 7 February 2020, the Supreme Court was bound by the opinion of the State Court. Cyprus 30.     In 2016 the Cypriot authorities issued a freezing order in respect of the applicant’s property, which was lifted a few months later. No further detail was provided to the Court in this respect. Greece 31.     In 2014, by means of a letter rogatory in terms of the United Nations Convention Against Transnational Organised Crime, the Kazakh authorities requested the Greek authorities to conduct an inquiry into acts of money laundering committed jointly and repeatedly by various persons including the applicant. In 2014 the Judicial Council of the Athens Magistrates’ Court accepted the request. By means of judicial council decision no. 4405/2014 a freezing order was issued on a series of accounts and safe deposits, including some owned by the applicant. 32.     Following the relevant inquiry, by a judgment of 16 July 2020 the Judicial Council of the Athens Magistrates’ Court rescinded the freezing order and held that no charges should be held against, inter alia , the applicant. It shared the prosecutor’s arguments that the letter rogatory contained no information or document proving the incidents as described in the charges, which mainly relied on testimony of two individuals with no reference to the conditions under which they had been obtained. It further referred to a judgment of the Vienna Court of First Instance as well as other judgments given in European States which dismissed similar letters rogatory, noting that important questions arose in relation to the legitimacy of the criminal proceedings relied on. Noting the accused person’s assertions of political prosecution, it found that no information had been included in the file showing that the accused were aware of the alleged criminal activities of R.A. Proceedings in Kazakhstan 33 .     Following the Austrian authorities’ refusal to extradite R.A., in 2007 he was tried in absentia . In 2008 he was convicted and sentenced to a twenty ‑ year term of imprisonment. 34 .     In 2009, following another trial in absentia , R.A. was convicted of political offences by a secret military court and sentenced to a twenty-year term of imprisonment. 35.     According to the applicant, she was never officially notified of any proceedings against her. Proceedings in the Respondent State The request for legal assistance via letters rogatory 36.     In February 2013 the Maltese authorities received a request for legal assistance in terms of the United Nations Convention Against Transnational Organised Crime, concerning the applicant and R.A. in relation to crimes allegedly committed in Kazakhstan. At the time the Kazakh authorities were conducting an investigation into allegations of fraud and money laundering on the part of R.A. and the applicant. 37.     The request was communicated to the Magistrate in line with Article   649(1) of the Criminal Code, who called for a number of witnesses to be questioned including the applicant, who was to be questioned on 31   October 2013, and R.A. In the meantime, an attachment order ( sekwestru ) was issued on 6 August 2013. 38.     On 1 October 2013 the applicant and R.A. objected to the request and asked the Court of Magistrates not to execute the letter of request on the grounds that the Kazakh procedures were contrary to public policy and fundamental principles of Maltese law, as specified in Article 649(1) and   (5) of the Criminal Code. They submitted relevant documentation to substantiate their claim. They asked the court not to pass on any already collected information and to ensure that they and other people who had been called to testify and whose identity had therefore been disclosed to the Kazakh authorities, be given due protection. The Attorney General made submissions in reply. 39 .     The applicant and R.A.’s objection was rejected on 21 October 2013, the Court of Magistrates noting that it could not decide any preliminary pleas and that these were not extradition proceedings during which the claimants could raise such arguments, which it considered of a constitutional nature. It noted, however, that in its collection of evidence it would apply the principles of Maltese law. 40.     According to the Maltese authorities,   on an unspecified date, criminal proceedings in Kazakhstan were instituted against the applicant and her husband on, inter alia , charges of money laundering. Nevertheless, evidence continued to be collected and witnesses continued to be heard, under Article   649 of the Criminal Code, in the absence of the applicant and her husband (who were not in Malta and had not been notified) or their representative. 41.     A further request for legal assistance was received in January 2014 whereby the Maltese State was requested to identify and freeze assets belonging to the applicant and R.A. The freezing orders (a)    The freezing order by the Criminal Court 42.     Following a request by the Attorney General acting on the request of the Kazakh authorities, on 25 February 2014 the Criminal Court, in proceedings in camera , issued a freezing order (ordni ta’ffrizar ) by which it ordered the freezing of the assets held in Malta by the applicant and her husband and prohibited them from transferring or disposing of any movable or immovable property in accordance with Article 435C of the Criminal Code and Article 10 of the Prevention of Money Laundering Act. 43 .     The freezing order was still in place at the time of the communication of the complaints to the Respondent Government and the subsequent observations, the Criminal Court having renewed it repeatedly upon the Attorney General’s request. While still affected by the freezing order, the Criminal Court in the meantime, on the applicant’s request, allowed her to transfer in her name two cars, to rent out a property (the proceeds of which were also to be affected by the freezing order – save for a specific authorisation which was later granted to pay related tax and water and electricity bills), and to transfer onto her name part shares of a company (which was also to be subject of the freezing order). (b)    The freezing order by the Court of Magistrates 44.     In the context of the proceedings for legal assistance, on 7 April 2014 the Court of Magistrates issued a freezing order over the applicant’s and her husband’s property under Article 23A of the Criminal Code (freezing of property of an accused person). No detail has been submitted concerning this order. Continuation of the legal assistance 45.     On 14 April 2014 all the evidence collected was sent to the Kazakh authorities. 46.     On 12 September 2014 the applicant and her husband asked the Court of Magistrates to continue the proceedings in public. The request was denied on 2 October 2014 on the basis that they had no locus standi in the proceedings. 47 .     By a decree of 10 October 2014, following an intervention by the constitutional jurisdictions (see paragraph 51 below) on request by the parties, the Court of Magistrates declared, inter alia , that the applicant and her husband be considered accused persons in criminal proceedings in Kazakhstan, and they had thus, legal standing in these proceedings as accused, with the relevant rights (see paragraph 51 below). 48.     Upon their request for a copy of the accusations on the basis of which these letters of request were being based, on 20 November 2014 the applicant and her husband, as well as the court, were handed over a copy of the charges by the Kazakh authorities, whose representative explained that investigations were still in process. Constitutional redress proceedings (a)    First-instance 49.     In the meantime, in June 2014 the applicant and R.A. instituted constitutional redress proceedings. 50.     They complained that the proceedings instituted by the Attorney General in Malta on request of the Kazakh authorities were in breach of their rights under Article 6 of the Convention and Article 1 of Protocol No.   1 to the Convention; that given the political situation in Kazakhstan the claimants had no guarantees that their rights in the proceedings in Kazakhstan (of which they had not even been notified) would be respected and thus that the Maltese authorities should not abide by the request for legal assistance, which also included freezing their assets. They requested the court to bring to an end all the proceedings initiated in Malta and to order that all information which had been collected be destroyed and not sent to the Kazakh authorities as well as to make any relevant order to redress the said breaches. 51 .     By an interim decree of 10 October 2014, the court ordered that sittings before the Court of Magistrates be no longer held in camera , that no documents be sent to Kazakhstan until the case was decided and that the applicant’s lawyer be given full access to the acts of those proceedings. 52.     By a judgment of 5 October 2017 the Civil Court (First Hall) in its constitutional competence found a partial breach of Article 6 of the Convention (see paragraph 54 below) and ordered that the documentation collected by the Maltese authorities should not be sent – where it had not already been sent – to the Kazakh authorities as it had been collected in breach of the rights of the claimants; that any legal assistance requested from the Maltese authorities in relation to the now deceased R.A. should not continue nor should documents be sent to the Kazakh authorities. The latter finding was so since, in accordance with Maltese public policy, no criminal proceedings can be pursued against a deceased individual or his heirs. 53.     It, however, found that the legal assistance in respect of the applicant should be continued and that all documentation collected be sent to the Kazakh authorities in relation to the criminal charges against her (as she had to be considered an accused person as agreed in the minutes of 10   October 2014) as long as Maltese law was being respected in that process. 54 .     In particular, it considered that the situation was one where the applicant and her husband were accused persons in criminal proceedings in Kazakhstan, but where the collection of evidence – a part of the criminal proceedings – was being undertaken in Malta. Thus, the collection of evidence and freezing of their assets could not have been made in the absence of the applicant (and her husband) who had standing as well as the relevant rights as accused persons, and in that connection there had been a breach of Article   6. 55 .     As to the rest, the court held that it had no competence to assess whether the proceedings in Kazakhstan were not genuine ( fazulli ) and whether they were politically motivated. It was for it [ the Civil Court (First Hall) in its constitutional competence] only to decide, in the present case, whether the Maltese State was to continue assisting a judicial system which was allegedly corrupt and unable to give a fair hearing. While this was not a question of extradition, the court was of the view that legal assistance should not be given in relation to proceedings which could not guarantee a fair trial. However, the court noted that the Constitution of Kazakhstan, at least on paper, offered the guarantees of a fair trial. Secondly, despite reports from various entities considering that the judicial system in Kazakhstan was not conducive of fair trials, the United Nations nevertheless accepted Kazakhstan as a signatory to the Convention which provided for reciprocal assistance in criminal matters. The court took note of the various reports presented to it on the matter, including concerning the regular use of torture in political trials. It found that, indeed, according to a judgment of the ECtHR, persons had also been tortured to give evidence against the applicant’s husband. It, however, considered that the since the issue was not one of extradition, given the seriousness of the financial crimes with which the applicant was charged, the Maltese authorities should not obstruct the investigation by not sending the collected information, even assuming the proceedings against the applicant were not free from any political motives. 56.     While other countries had refused extradition requests, it did not appear to be so with requests for assistance which in themselves were not determinative of guilt and thus the applicant’s right to a fair trial would not be prejudiced. The court did not consider it appropriate to make any general assertions as to democracy in Kazakhstan, which was not relevant to the present case, as it had not been sufficiently proved that the applicant’s trial was politically motivated. 57 .     While the court was not impressed by the witness testimony of A.Z. (a Kazakh official) who totally lacked credibility, it considered that it could not be said that the charges against the applicant were entirely ill-founded. Nor did the charges appear to be grounded or having any legal basis – but this did not prohibit another country from pursuing their investigations. Thus, while the applicant’s request could not be considered as premature, despite proceedings not having come to an end, it was necessary to give guidance as to the way forward. 58 .     As to her complaint under Article 1 of Protocol No. 1, the court held that the freezing of her assets constituted a control of use of property in the general interest – it had been legal and pursued a legitimate aim, namely that of a deterrent in the fight against organized crime and money laundering, and was put in place in a way (at least after it was regulated by this court) which had achieved a fair balance between the interests at play. Thus, as submitted by the Attorney General, it had been proportionate having considered that the applicant (and her husband) who had been employees of the State at limited pay, had nonetheless managed to own various companies in Malta and abroad, as well as properties of a considerable value, which according to the Attorney General had been acquired via assets having an illicit origin. 59.     In all fifteen hearings took place in these proceedings, during most of which written or oral evidence was presented. (b)    Appeal 60 .     Both parties appealed. The applicant challenged the judgment in so far as it rejected the complaint under Article 1 of Protocol No. 1 in relation to the freezing order (noting in particular that the domestic courts had not differentiated between investigated or accused persons and that while they became accused on 10 October 2014, the freezing order had been issued on 25   February 2014). She further appealed in relation to the continuation of the assistance to the Kazakh authorities. Particularly, in relation to the freezing order issued in February 2014, she considered that the court had based itself on legally and factually incorrect and unsubstantiated statements made by the Attorney General. She noted that it was not true that she had always been an employee on a limited wage and with a limited income, and that just because a property was expensive, it did not mean that it had been acquired by illicit means, in the absence of a shred of evidence. 61.     The appeal was appointed for hearing on 13 November 2017 and was adjourned for pleadings to 12 February 2018. On the latter date the court adjourned the case for judgment. Two further adjournments for judgment ensued, and on 11 June 2018 the applicant requested to submit further documentation. The request was debated on 8 October 2018 following one adjournment, apparently because the casefile had been lost. The case was then adjourned five times for judgment. 62.     By a judgment of 8 April 2019 the Constitutional Court rejected the applicant’s appeal. 63.     It confirmed that the complaint was not premature and that the continuation of proceedings after 10 October 2014 – the date on which they had been recognised as accused – in the absence of the applicant (and her husband), at a time when criminal proceedings were ongoing against them in Kazakhstan and when they therefore had the status of accused persons was in breach of the applicant’s right to a fair trial. This was so given that under the Maltese law an accused person had the right to be notified of the proceedings arising from letters rogatory and to be present throughout the criminal process, including the collection of evidence in a foreign state, in order to safeguard their interests. 64.     The Constitutional Court considered that whatever went on in Malta had to be in line with the domestic law in Malta and the applicant’s fair trial rights. The first-instance court had thus been right to order that any evidence collected in breach of those rights should not be sent to the Kazakh authorities. However, that evidence should again be brought before the domestic courts in the presence of the applicant, so as to enable Malta to conform to its international obligations. 65.     It further considered that the freezing order should be kept in place in respect of the applicant, but not her husband who was now deceased, since it was a precautionary measure – a tool provided for by the Criminal Code, which was often used in money laundering cases – and there was therefore no breach of any human right if it remained applicable until the end of the criminal proceedings. Given the seriousness of the offence with which the applicant was charged, the measure requested by the Attorney General had not been arbitrary or unreasonable, as also confirmed by the Criminal Court which issued the order on 25   February 2014. It was also not for the court to decide whether the applicant was guilty or not, but simply to decide whether the freezing order had to be issued, and the first-court’s considerations had been reasonable given the applicant’s testimony. 66 .     In so far as the claimants had also requested the court to reverse the findings under Article 1 of Protocol No. 1, while no specific appeal plea was made in this regard, the Constitutional Court was of the view that no such breach could be upheld, since, contrary to a confiscation order, a freezing order did not deprive the claimants of their possession but was only a temporary measure which was lawful, in the general interest and proportionate to the aim pursued. Further developments following the communication of the complaints to the Respondent Government on 2 November 2020 67.     Following the conclusion of the parties’ observations (submitted between March and May 2021), in November 2021 the applicant informed the Court of the following further developments which had occurred in the months preceding, and subsequent, to the filing of observations by the parties. 68 .     On 14 December 2020, the applicant filed an application with the Criminal Court complaining about the practice whereby similar requests for assistance were, essentially, automatically renewed by the court every six months, on request by the Attorney General, without the Maltese competent authorities asking whether the Requesting State was still interested in the assistance it had originally requested, and without the application of the Attorney General being notified to the persons impacted by the freezing order. The applicant thus asked the Criminal Court to set a hearing and to revoke the freezing order. She also submitted to the Criminal Court the Statement of Facts prepared by the Registry of the European Court of Human Rights in relation to her application before the Court which had, in part, been notified to the Respondent Government on 2 November 2020. 69.     On the same day the Criminal Court invited the Attorney General to submit comments within twenty-four hours. Following a number of extensions, the latter made submissions on 22 February 2021. The Criminal Court set a hearing for 26 February 2021, wherein it ordered that the Attorney General get in touch with the Kazakh authorities to obtain information about the status of the alleged judicial proceedings in Kazakhstan. 70.     On 19 March 2021 the Kazakh authorities informed the Attorney General that the Investigation Department of the National Security Committee of the Republic of Kazakhstan was still investigating the criminal case against the applicant, her husband and others. They thus asked the Maltese courts to maintain the freezing order as they considered that “at this stage of the investigation there are no grounds for lifting the restrictions on the seized assets of the Aliyev’s criminal group”. 71.     On 25 March 2021 the Criminal Court deemed this reply insufficient and consequently requested the Attorney General to obtain more information. On 23 April 2021 the Attorney General filed a note in the acts of the proceedings whereby he exhibited the additional information received, which was a replica of the previous reply. 72.     Unsatisfied, on 18 May 2021, the Criminal Court asked for more information. It questioned why the information sent spoke about an investigation going on in Kazakhstan when the original request to the Maltese authorities had been made in terms of Article 435C of the Criminal Code because judicial proceedings had been instituted against the applicant, where “she was charged before the courts of Kazakhstan on 25   March 2013 ” ( fejn hija ġiet mixlija quddiem il-Qorti tal-Kazakhastan fil ‑ 25 ta’ Marzu 2013 ) . 73.     On 18 June 2021 the Kazakh authorities sent a further reply confirming that the pre-trial investigation was still underway, but that on 5   July 2019 it had been temporarily suspended because the accused persons were outside the Republic of Kazakhstan, and it was necessary to obtain additional evidence from several foreign countries. They specified that court proceedings had not yet commenced (except for individual court sessions conducted by an investigating judge to authorise certain investigative actions). Indeed, the criminal case against the applicant could not, at that stage, be sent to court since she had escaped from the investigation and was on the international wanted list. Since she was outside the borders of the Republic of Kazakhstan and evaded appearing before the criminal prosecution and the court, on 13 June 2015, a lawyer was appointed as her defender. They explained that he “participates” in all investigative actions affecting the applicant’s interests including obtaining the authorisation of the investigating judge for the arrest of her property, as well as the seizure of bank information. At the same time, following the criminal procedure legislation of the Republic of Kazakhstan, the investigation body takes all the envisaged measures to notify her about this in due and proper form. However, since she never took part in the investigative actions and the court hearings held by the investigating judge, her interests were represented by the appointed defence lawyer. Lastly, they noted that under Kazakh law it was possible to confiscate property obtained by illegal means until the final decision was issued (non-conviction based asset forfeiture) and that they were ready to institute the procedure for pre-trial confiscation, in favour of the Republic of Kazakhstan, of the applicant’s and her husband’s assets which were frozen in Malta, and asked the Maltese authorities whether such a decision would be recognized in Malta. 74.     On 22 July 2021, the Attorney General again filed an application asking the Criminal Court to extend the freezing order by another six months. 75 .     On 23 July 2021 the Criminal Court refused the request and revoked the freezing order. The relevant decree was published in the Government Gazette on 31 August 2021. The Criminal Court noted that Article 425C [ recte 435C] of the Criminal Code and Article 10 of the Prevention of Money Laundering Act, on the basis of which the freezing order had been issued, referred to a person “charged or accused”. Nevertheless, on the basis of the information provided, it transpired that no proceedings had been undertaken in Kazakhstan against the applicant, the circumstances still being under pre-trial investigation (which moreover was suspended), seven years after the order was issued. Having examined the relevant laws of Kazakhstan the applicant was solely to be considered a suspect. It followed that the Criminal Court was no longer satisfied that the conditions under Maltese law for the keeping in place of the order still existed. The Court went as far as saying, that they never existed since proceedings were never initiated before any court in Kazakhstan ( il-Qorti ma għadhiex aktar sodisfatta illi 1-kundizzjonijiet li wasslu għall-ghemil tal-Ordni għadhom jezistu sebgħa snin wara, anzi tazzarda tgħid illi dawn il-kundizzjonijict għal ħrug tal-Ordni qatt ma kienu jezistu stante illi qatt ma ġew inizjati proceduri quddiem xi qorti fir-Repubblika tal-Kazkhstan ) and thus the applicant had not been “charged or accused”, with the crimes indicated by those authorities. RELEVANT LEGAL FRAMEWORK THE CRIMINAL CODE 76.     Article 23A of the Criminal Code, concerning the freezing of property of accused persons, in so far as relevant, reads as follows: “(1) In this article, unless the context otherwise requires: "relevant offence" means any offence not being one of an involuntary nature other than a crime under the Ordinances or under the Act, liable to the punishment of imprisonment or of detention for a term of more than one year;   "the Act" means the Prevention of Money Laundering Act;   "the Ordinances" means the Dangerous Drugs Ordinance and the Medical and Kindred Professions Ordinance. (2) Where a person is charged with a relevant offence the provisions of article 5 of the Act shall apply mutatis mutandis and the same provisions shall apply to any order made by the Court by virtue of this article as if it were an order made by the Court under the said article 5 of the Act. (3) Where the court does not proceed forthwith to make an order as required under sub-article (2) the court shall forthwith make a temporary freezing order having the same effect as an order made under article 5 of the Act which temporary order shall remain in force until such time as the court makes the order required by the said sub-article. (4) Where for any reason whatsoever the court denies a request made by the prosecution for an order under sub-article (2) the Attorney General may, within three working days from the date of the court’s decision, apply to the Criminal Court to make the required order and the provisions of article 5 of the Act shall apply mutatis mutandis to the order made by the Criminal Court under this sub-article as if were an order made by the court under the same article 5. The temporary freezing order made under subarticle (3) shall remain in force until the Criminal Court determines the application. (5) The person charged may within three working days from the date of the making of the order under sub-article (2) apply to the Criminal Court for the revocation of the order provided that the order made under sub-article (2) shall remain in force unless revoked by the Criminal Court.” 77.     Article 435C of the Criminal Code, concerning the freezing of property of persons accused of offences cognizable by courts outside Malta, in so far as relevant, reads as follows: “(1) Where the Attorney General receives a request made by a judicial, prosecuting or administrative authority of any place outside Malta or by an international court for the temporary seizure of all or any or the moneys or property, movable or immovable, of a person (hereinafter in this article referred to as "the accused" charged or accused in proceedings before the courts of that place or before the international court of a relevant offence, the Attorney General may apply to the Criminal Court for an order (hereinafter in this title referred to as a "freezing order") having the same effect as an order as is referred to in article 22A(1) of the [Dangerous Drugs] Ordinance, and the provision of the said article 22A shall, subject to the provisions of sub-article (2), apply mutatis mutandis to that order. (2) The provisions of article 24C(2) to (5) of the Ordinance shall apply to an order made under this article as if it were an order made under the said article 24C. (3) Article 22B of the Ordinance shall also apply to any person who acts in contravention of a freezing order under this article.” 78 .     Article 649 of the Criminal Code, concerning the collection of evidence in relation to offences cognizable by courts of justice outside Malta, in so far as relevant, reads as follows: “(1) Where the Attorney General communicates to a magistrate a request made by a judicial, prosecuting or administrative authority of any place outside Malta or by an international court for the examination of any witness present in Malta, or for any investigation, search or/and seizure ( perkw