The Aliyev proceedings: a tale of horned judges and devil’s advocates

Should a number of “witnesses” now appearing in court downtown Vienna in the murder trial against two of the surviving associates of Rakhat Aliyev, the main culprit in the murder case of two executives of Kazakhstan’s Nurbank back in 2007 in Almaty, in fact be seen as co-defendants? In trials during which murder scenarios are supposed to be unraveled in full detail, it is not unusual that witnesses appear to have been involved in the criminal acts on the table or in other related criminal acts. In such cases, the judge can order their immediate arrest pending charges. Apparently not in Austria – at least not in a case where the judge has all but become suspect himself. Attempts to have him replaced remain unsuccessful – not in the least because the case also implicates a number of people in very high places among the Austrian political and civil elites.

BY CHARLES VAN DER LEEUW, WRITER, NEWS ANALYST

The Aliyev proceedings: a tale of horned judges and devil’s advocates“In the Aliyev trial, on Wednesday one of the key witnesses à charge spoke out, a news report [http://wien.orf.at/news/stories/2717901/] from Austria’s national radio and television station posted the same evening reads. “He depicted how Rakhat Aliyev raped one of the bankers [with a stick] who was to be killed later on. Once more, the judge was confronted with objections to his positionfor being biased. Witness Askan Bekmuratov who made his declarations on Wednesday is currently serving a jail term in Kazakhstan. In 2008 he was convicted to 10 years in prison for having been actively involved in the capture and ill-treatment of  the two bankers whose murders concern the case now the subject of the so-called Aliyev trial.” The report relates how the witness during the hearings claimed that he had been “programmed to believe that the two bankers were criminals” but that while watching how the two captives, wrapped in blue overalls, capped and cuffed, were abducted, he had been “…frightened and shocked by their conditions. I felt I was being abused.”

Bekmuratov’s name only appears sporadically in the chronicles of the events (see below), in contrast to some other names of persons who should have been charged but never were – at least not in Austria. “In Almaty, Kazakhstan, between 18 and 19 January 2007, Dr. Rakhat Shoraz, formerly Aliyev, and Vadim Koshlyak have, in witting and willing cooperation with separately prosecuted  Aidarkhan Bektybayev and Kulan Akimkulov as co-perpetrators, have illicitly detained, as under a pretext they led into a sauna and sport complex located 2 Institutskaya ulitsa and held them there for almost 24 hours against their will: Abdilmazhen Gilimov, by leading him into a guestroom within the premises, handcuffed him and prevented him from leaving the room on his own by having him guarded by Vadim Koshlyak and Aidarkhan Bektybayev alternately; [and] Zholdas Timraliyev, with Vadim Koshlyak on the instruction of Dr. Rakhat Shoraz handcuffing him on to a training device in the training room and prevented him from leaving the room on his own by having him guarded by Vadim Koshlyak and Kurman Akimkulov,” the charges’ opening paragraph reads.

Aidarkhan Bektybayev and Kulan Akimkulov are “separately prosecuted” in the words of the charges brought in Austria last December against Aliyev, his security chief Vadim Koshlyak and codefendant Alnur Mussayev. Much so far subject to speculation is confirmed within the 99-pages document relating the facts and formulating the charges. Back in Kazakhstan, where Aliyev was sentenced to 40 years in prison and Koshlyak to 20, both in absentia, Mussayev was reputedly acquitted for having cooperated with the Kazakh authorities to solve the case – especially a second case against Aliyev and a number of consorts concerning conspiracy against the state, concretely the preparation of an armed putsch, which was already at an advanced stage when it fell through. By taking on proceedings, Austrian authorities had clearly decided not to follow their Kazakh peers in connection with Mussayev and the latter would have to stand trial and eventually be convicted along with the others.

The name of Bektybayev (sometimes spelt Bektaybayev) first appears on January 18 th, 2007, 6 p.m., according to a chronology [http://www.tagdyr.net/wp-content/uploads/2012/03/Nurbank-Chronologie_ENG.pdf] of the subsequent events elaborated by Verein Tagdyr, the foundation created in support of the families of the two murdered bank executives. “GILIMOV and TIMRALIYEV drive with GILIMOV’s company car to the airport. In the meantime,” in the document’s words, “A. BEKTYBAYEV contacts GILIMOV and asks him and TIMRALIYEV to take his car instead. They get into BEKTYBAYEV’s car; Vadim KOSHLYAK is already there.

On January, 18 th, 2007, in the evening, due to an alleged flight delay, Bektybayev, the head of the security, brings Gilimov, Timraliev and Koshlyak in a Rakhat sauna complex [village Rakhat near Almaty). Aliyev is already there.” The rest of the first kidnapping’s course of event as presented in the chronology is in line with that described in the Austrian prosecution’s charges.

What is most important is that Mussayev’s name, which in the charges only appears towards the end of the first kidnapping and after the double murder, in the chronology appears at much earlier stages and more frequently after that. “On the night of 18/19 January 2007 Dr. Rakhat Shoraz got a call from his mother who informed him that his daughter Venera was ill,” the charges’ document reads. Dr. Rakhat Shoraz had himself picked up by his man of confidence Alnur Mussayev and informed him about what had been going on in the sauna complex.” This was the place where the victims Gilimov and Timraliyev were held at the time. The document relates that Mussayev advised Aliyev to “deal with the matter in the usual manner”. From there on, Mussayev’s name disappears from the record, until after the murder of Timraliyev and his colleage Khasenov, when Aliyev called upon him help him to get rid of the bodies – which he did. But according to Kazakh sources, much later he also leaked information to the Kazakh authorities, hoping for clemency should it lead to the discovery of the two victims’ remains – which eventually it did. Such a plea for clemency seems to have been overruled by Austrian prosecutors, but lawyers now seem to seek to have the charges modified to the extent that Mussayev is charged with complicity but not with murder proper.

Both the names of Bekbatyrov and Bekmuratov reappear in the course of events on January 31st, 2007, between 5 and 6 p.m., right after the capture of the two bank executives prior to their murders. “Aliyev orders to close the 9th floor, the building is under the supervision of AO Alma Tour, monitoring devices are turned off and other employees leave the office earlier,” Tagdyr’s chronology reads. “Sarsenbekov, Bekbatyrov and Bekmuratov follow the instructions.” According to the document, two secretaries also remained present. Only their first names are given, and it is noted that they were never interrogated by the Austrian prosecution. Various following passages in the chronology indicate that Bektybayev was there all the time during the interrogations and torture scenes of the two prisoners. But in contrast to the charges, the presence of Mussayev is also noted prior to the murders instead of afterwards.

According to the chronology, on February 8 th, 2007, at 7 – 8 p.m. “…Aliyev wants to meet Akimkulov in the Cafe-Bar Guiness. Koshlyak and Mussayev are already there. They talk about the bank managers and the impossibility to hand them over to the police; Koshlyak says that in such case they mustn’t stay alive. On February 8 th, 2007 between 11 and 12 a.m. Aliyev gives both men injections and sedates them with Persen, (3x a day) . On February 9 th, 2007, Aliyev leaves without his bodyguards, what he often does when he wants to keep his whereabouts secret. On February 9 th, 2007, 3 p.m., both men get the injections and pills, which keeps them still. Aliyev and Mussayev park their Jeep at the site of Aliyev’s residence. Sychev, the bodyguard, must give Koshlyak the key to the second guard’s house where the monitoring devices are; later on, around 4 p.m., processors are idle and the key is in the lock. A Toyota Land Cruiser appears at the site of the residence; Bekmuratov sees Mussayev at the site of the residence no. 5, when he, together with Koshlya, drives the bank managers away. Following Bektybayev’s instructions, Sychev and Yezmurzayev bring 3 white plastic bags with matrices and blankets to a kennel; Zyabkin should give them to the dogs. Aliyev orders Bekmuratov, to clean the storage. On February 9 th/10 th, 2007, around midnight Bektybayev, who is under the influence of alcohol, returns to the residence.”

It is not known whether Sychev and Yezmurzayev have either been interrogated by Austrial prosecutors or whether they are set to appear as witnesses in the course of the ongoing trial. What is clear now is that Mussayev has been actively involved in the actual murders rather than only having shown up, as the charges suggest, after the death of the captives in order to help the perpetrators get rid of the bodies. But at least five people listed as witnesses in the proceedings should be considered co-perpetrators and charged accordingly. This does not seem to be happening. The risk this bears is that lawyers towards the end of the hearings in their final pleas will point at procedure errors, which could shake the ground under the entire case.

The murders took place on February 9, according to the charges, “… by administering paralysing neuroleptics and additional stupefying substances which disabled them to move, upon which they were strangled,” the charges by the Austrisn prosecution read. “The latter substances included injections with overdoses of sulphiride, diazepham, chlorproxithene and zolpideme, All possible evidence on the site of the murder were burnt on the order of Rakhat Aliyev. The bodies were subsequently brought to a garbage grove on 126b Al-Farabi Avenue, the motorway that separates Almaty from the uphill suburbs on the northern slopes of the Tien Shan mountain range. It was only at that stage that Nurlan Mussayev seems to have entered the crime scene, by taking care of the transportation of the bodies to a site belonging to a company named KazStroyTsentr, the general manager of which was Vadim Koshlyak’s brother Alexei but which was the property of Rakhat Aliyev. […] It was known to Dr. Rakhat Shoraz and Vadim Koshlyak that there was only very limited security on this land and the debris disposals on it were regularly covered, so that in winter, when the soil was still frozen, the site represented an ideal place to “dispatch” the bodies of Aybar Khasenov and Zholdas Timraliyev. In order to make identification of the bodies, should they nonetheless be discovered, impossible, Dr. Rakhat Shoraz, Vadim Koshlyak and Alnur Mussayev decided to strip the bodies of all but their underwear and put the corpses in metal drums filled with dissolved chalk, […] which was used for the sugar production in Dr. Rakhat Shoraz’s enterprise.”

“The accused have committed the punishable acts they have been charged with both in objective and subjective regards and shall be proven guilty in pending proceedings in accordance with the available means of proof as included in the charges document and punished accordingly,” the charges read in conclusion. “Shoraz” and Koshlyak through their lawyers kept screaming about “manipulated” witness declarations and “fabricated” evidence although they had failed to come up with any alibi so far, while the third defendant, Alnur Mussayev, was cited in the charges as having declared that “… in January and February 2007 he was in such a bad condition due to his alcohol addiction that he could not remember where he had been present within this time span and what had happened within it”.

It remains to be seen how much of all this information will actually get through to the jury. If it eventually does, it will be little thanks to the judge who has earlier shocked not just Austria but the world by letting the two main suspects run free. According to people present at the trial, he continues to display a biased attitude and insinuate evil intentions on the Kazakh side. At the opening of last Wednesday’s court session in Vienna, lawyer Werner Moringer, who represents one of the murdered bankers’ father in the Austrial proceedings, once more denounced judge Böhm’s evident bias and demanded his removal from the trial. The demand, which was supported by the prosecutor, was dismissed. There is reason to look for justice minister Wolfgang Brandstetter having a hand in this. So far, he has kept a low profile in the entire affair, and it is unclear whether he is to be called in as a witness – since it was him, at the time as a lawyer, who gave Aliyev shelter and an illegitimate passport after the latter’s escape to Austria, which helped him escape justice for well over half a decade to come.

The judge’s attitude has raised indignation far outside Austria. “Alnur Mussayev and Vadim Koshlyak who are suspects in two murders and a series of serious crimes were released from custody by the decision of the Viennese court last month,” the Daily Mail, above suspicion where any expression of sympathy for Russia or any other former Soviet republic considered “neo-Soviet” (including Kazakhstan) is concerned, wrote in a background report [http://dailymailnews.com/2015/06/03/alnur-vadim-release-questioning-austrian-judicial-system/08.06.2015] posted on June 8 was to read. “This judgment is shocking for legal circles of Austria and raising questions about judicial system of the country. Alnur Mussayev is a former head of the Kazakh intelligence service while Vadim Koshlyak is a former presidential bodyguard and both are accused of aiding late Rakhat Aliyev in the abduction and murder of two bankers of the Kazakh Nurbank in 2007. The trial began on April 14 and had been dubbed among the most complicated in the history of Austrian justice. It involved more than 60 witnesses. This decision of the court was unexpected and is under question by judicial circles of Vienna that how court released accused of 2 murders by giving them doubt of slight differences of statements of witnesses those were 60 in number. The Prosecutor Office has already protested this decision to the higher authority and the Regional Court for Criminal Matters in Vienna has begun the consideration of the appeal. Local journalists were equally surprised with this decision because the defendants are connected to the infamous case of Rakhat Aliyev, meaning they could be dangerous for society. In this case, the surprising humanism of Judge Boehm looks suspicious. One needs to be an utter optimist and confirmed before releasing accused allegedly involved in numerous murders instead of giving benefit of doubt for differences in some of statements of 60 witnesses. The explanation that accompanied the judge’s decision is equally surprising. It was based on small procedural inconsistencies that did not change the essence of the case, but perfectly embodied the spirit of casuistry. It is one thing when the essence of the case is sacrificed to verbiage, when getting into particularities and minor nuances and details puts truth and justice aside. But it is a completely different when the judge thus influences the jury, willingly or not. It is a very sensitive sphere and the decision on such resonant cases could be changed with a tiniest shift of balance. And if the judge suddenly shows condescension to the defendants, he puts in doubt his status of an impartial arbitrator. It is then no coincidence that Austrian media, usually very reserved about their evaluation of court cases, published a series of critical articles about the works of justice in the country.”

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