Kazakhstan’s Zhylanbayev case: Criminal organizations are the antithesis of democracy

There has been a surprising level of interest in the renowned Kazakhstani marathon runner Marat Zhylanbayev’s recent sentencing to seven years in prison. Zhylanbayev is a close associate and ally of controversial oligarch, Mukhtar Ablyazov. He also co-leads “Alga!”, a movement shadow-headed by Ablyazov.

Ablyazov is currently residing in France, where he is subject to extradition on charges of fraud and money laundering. These allegations stem from his alleged involvement in embezzling billions of dollars from a Kazakhstani bank. Ablyazov’s domestic and international legal troubles, including a UK conviction and a recent New York jury verdict, have led to judgments exceeding $5 billion against him.

According to court filings, Zhylanbayev maintained communication with Ablyazov and his foreign headquarters from where he received and executed orders to “violently change the constitutional order of the Republic of Kazakhstan”. His activities involved encouraging violent and extremist activities as well as financing the Ablyazov-led Democratic Choice of Kazakhstan (DCK) party. The DCK is on Kazakhstan’s list of banned extremist organizations that includes over twenty entities including Al-Qaeda and Islamic State.

Organized criminal and extremism activities

The basis for DCK’s classification as a terrorist organization comes directly from the activities of Ablyazov and his associates. As one example, Mukhtar Ablyazov, the former chairman of BTA Bank, was sentenced to life in prison in absentia for orchestrating the murder of Yerlan Tatishev, the Bank’s previous head. After assuming control of the bank, Ablyazov frauded the bank and laundered his stolen funds, according to U.S. and UK court filings.

 In Kazakhstan, Mukhtar Ablyazov is accused, in conjunction with his then-ally Vladimir Kozlov, of fueling violence during the deadly 2011 uprising in Zhanaozen city. Evidence against him includes telephone transcripts that reveal discussions between Ablyazov and his associates about arranging an “upheaval,” with the anticipation that “blood is going to be spilled”.

On Republic Day in Kazakhstan, October 25, 2022, Ablyazov is believed to have attempted to orchestrate mass protests, which ultimately failed to materialize. Publicly available statements indicate he offered substantial financial incentives to individuals and law enforcement officers willing to openly defy the government. These funds, Ablyazov claimed, would come from the state budget, the National Fund, and assets seized from the family of Kazakhstan’s former president, Nursultan Nazarbayev.

Controversy within the EU?

Ablyazov has successfully avoided extradition from Europe by presenting himself as a political opposition figure in Kazakhstan. He fortified this claim by launching the “Alga!” movement, which has allowed him to portray the charges against him by Kazakh authorities as political repression. Several other individuals implicated in his allegedly fraudulent activities are also linked with his political movement.

Surprisingly, Ablyazov, Zhylanbayev, and other associated names appear to have sympathizers in the European Parliament (EP). The most recent European Parliament (EP) report on Central Asia calls for the release of five Kazakhstani prisoners, three of whom – Marat Zhylanbayev, Bekizhan Mendygaziyev, and Kairat Klyshev, are linked to Ablyazov’s unregistered Alga! party in Kazakhstan.

The Open Dialogue Foundation (ODF), a Europe-based organization that staunchly supports Ablyazov and has managed his website for years, was among the five NGOs that provided input to the report’s rapporteur.

The latest report is not the first time EU officials have teamed up with the ODF to advocate for Ablyazov and his network. In 2022, the Renew Europe group in the EP represented by MEPs Auštrevičius and Thun put forth a motion containing verbatim language from an ODF report. All the named individuals in this motion were also Ablyazov’s associates.

How does Kazakhstan’s law used in Zhylanbayev’s case compare to Europe and the U.S.?

As explained above, Zhylanbayev represented the DCK, a banned extremist organization in Kazakhstan. This put him in violation of Article 405 of the country’s criminal law, pertaining to organizing or participating in the activities of organizations banned for conducting extremist or terrorist activities. He was further involved in upsetting the constitutional order by aiding and abetting the organization at the behest of Ablyazov and his top leadership, including cases of incitement to violence.

Western criticism regarding this case raises the question as to how a Western country would handle such a matter in their own jurisdiction. Would they show sympathy to an organization that encourages sedition and is backed by an internationally recognized criminal fugitive who stole over $5 billion dollars from his country?

Western democracies take their constitutional orders extremely seriously as evidenced by stringent laws in the United States and Europe aimed at protecting the integrity of constitutional systems.

In the United States, for instance, 18 U.S. Code § 2383 addresses crimes related to treason, sedition, and subversive activities. Anyone who incites, assists, or engages in any rebellion or insurrection against the authority of the United States or its laws can face penalties including fines, imprisonment for up to ten years, or both. They may also be barred from holding any office in the U.S.

In Europe, each country has its own laws regarding rebellion or insurrection. For example, United Kingdom’s Treason Felony Act 1848 makes it a crime to advocate for the abolition of the monarchy or wage war against the Queen. Germany’s Strafgesetzbuch (Criminal Code) §81 covers high treason, which includes forceful attempts to undermine or change the federal constitution. France’s Penal Code includes provisions against undermining the integrity of the national territory or the Republic (Articles 411-4 to 411-11).

While every country has its specific legal system where definitions of related crimes may vary, the underlying objective remains the same, i.e. to maintain stability and peace by preventing and punishing attempts to disrupt or overthrow the established constitutional order.

Conclusion

The case of Marat Zhylanbayev, an associate of Mukhtar Ablyazov, reveals once again how on one hand, Europe urges Kazakhstan to strengthen its rule of law while on the other, its own officials support the agenda of individuals and organizations funded by funds stolen from this country. Additionally, in upholding existing and clear laws to maintain its constitutional, democratic order, Kazakhstan’s government appears to be acting in the same spirit as its Western counterparts.