A controversy surrounding property confiscation of Kazakhstan's fugitive tycoons

Kazakhstan wants to start confiscating the property of fugitive tycoons without getting a court verdict, Tengrinews reports referring to the First Deputy Prosecutor General Iogan Merkel. “At present, property can be confiscated from a person only based on a court order. However, there are cases, like the notorious BTA bank case, where people (charged with crimes) have left the country (Kazakhstan) and there is no way we can hold them responsible for their wrongdoing. All we can do is convict them in absentia, but the international practices are not welcoming this kind of trials. This is why, to return the illegally obtained property, an enormous amount of property in this case, back to the (Kazakhstan) government, we are introducing the option of confiscation of property without a court verdict. This is article 54 of the United Nations Convention against Corruption (UNCAC),” said Mr. Merkel answering questions at the presentation of the new draft Code of Criminal Procedures in the Majilis (the Lower Chamber of the Kazakhstan Parliament). Yet, not everyone shares Mr. Merkel’s opinion on the confiscation issue. According to Dosym Satpayev, a prominent Kazakhstan political analyst, the issue of confiscation of property has became so pressing as to provoke changes in the Criminal Procedures Code, because Kazakhstan has been faced with a significant number of government officials and business elite figures fleeing the country after violating dozens of laws and stuffing their pockets with ill-gotten property in the past decade. In some of the cases, the legal proceedings are still on, and, again, the Kazakhstan government has to bear the legal costs. “Naturally, the government decided to change their tactics. Why drag on the trials against fugitive oligarchs when there is an option of confiscating the property without an actual trial? From the governmental standpoint, it is very convenient, as they do not want to waste time on court procedures, but want to obtain the property now. But from a legal perspective, there are certain risks involved: with trends like that, this option may end up being applied to ordinary citizens. It first starts with tycoons only, but later on a decision can be made that persons convicted for corruption or for some other crime can be dispossessed of their property in a similar way. This creates a certain contradiction with the Constitution. The court is the last instance where a person can protect his or her rights, including the property rights. If the court verdict is rendered unnecessary, then the decision falls into the hands of the officials,” Mr. Satpayev said. Azimbai Gali, a sociologist from Kazakhstan, is also against introduction of these new provisions into the Kazakhstan Criminal Code. He believes that courts have to deal with confiscation of property of fugitive tycoons, and do so in compliance with all the rules and procedures. “If a court finds that certain stock, assets or funds were acquired illegally, then it can order to confiscate the property. As a rule, tycoons register their property to their close relatives or friends. In this case, the court has to prove that the property belongs to the one being prosecuted,” said Mr. Gali. First Deputy Prosecutor General of Kazakhstan Iogan Merkel commented on the opinions that the new provision contradicts the Constitution of Kazakhstan: “Its constitutional enough, because the (dispossessed) person can return to Kazakhstan and appeal the confiscation. (...) When a person returns to the country and appeal the decision in court if something was done improperly, the court will issue a ruling and return the seized property." He stressed, that the confiscation decisions are not irreversible: “If you want your property returned then come back to Kazakhstan, and appeal to the court. It is not an ultimate decision,” said Iogan Merkel. Mr. Merkel believes that protection of the country's interests is of top priority in these cases: "The country shouldn't suffer because of that. The state budget has to spend a lot of money just to guard the property that is part of the large criminal cases. It should not be this way.” The confiscated property of the fugitives is a kind of burden for the State, he says: “Because of all these large cases, we are currently confiscating enormous properties, including buildings and resorts. The state cannot use it directly and has to safeguard it using the budget funds, that is our taxpayers' money,” he said. Th new Criminal Code of the Republic of Kazakhstan might come into force in 2015. Besides the confiscation of property provisions, the new Code has new types of punishment for provocation of labor disputes and strikes and new mechanisms for prevention of domestic violence.