On January 25, 2009, the municipal court of Helsinki made an unprecedented decision to postopone consideration of the European arrest warrant issued by the prosecutor’s office of Kaunas on Khadizhat and Malik Gataevs until the asylum seeking process is over.

The judge Anna-Mari Porkkala-Hietala decided to the consider  the cases of Khadizhat and Malik together. They were brought into the court room  one after the other.  Hadizhat was helplessly looking around trying to exchange glances with all her friends who came there. One of Gataevs’ lawyers, Markku Fredman, stood up and had her seated.  It was more than a gesture. It looked as a sign of compassion as much as respect.

Both Khadizhat and Malik Gataevs stated to the Finnish court that  they had never committed crimes the Lithuanian court had found them guilty of. Both confirmed once again that they had come to Finland to seek protection from injustice they suffered in Lithuania.

Their statement was confirmed by a witness. One of their foster daughters, 21-year-old Belkiz Mustieva, was allowed to testify in court. Bilkiz was one of those who the VSD, security police of Lithuania, misused in their game to trap the Gataevs up.

When asked what influenced Belkiz’s decision to tell the truth, she explained, ”Khadizhat and Malik took care of me for 12 years whereas it took me just a month to betray them. I acted on instructions of the VSD officers while giving my testimony to the Lithuanian court which was nothing else by exaggeration of what Khadizhat and Malik actually had done”.

Belkiz Mustieva testified that the officers of the Lithuanian security police, namely Donatas Shumskis, some Mantas and Gitis, had instructed Seda Esimbaeva to stage the family row providing her with a recording device which was hidden in her sock. Belkiz told the Finnish court that those facts had not been taken by the court in Lithuania to their consideration. The Lithuanian judges seemed to be satisfied with a vague statement that Seda Esimbaeva made on some mysterious friend who had given her instructions how to use the device and then left Lithuania  for good. They didn’t even inquire about its name. Belkiz also told that some of adult foster children of Khadijat and Malik happened to be capable of being tough enough to renounce the testimonies they gave under the influence of the security police. Belkiz recounted that the rest were immediately warned that  they would be either fined or deported to Russia if they dared to think about doing the same. The four witnesses of the prosecution side were then given their testimonies to be read through prior any questioning in court. When asked why it was so important, Belkiz explained, ”They were concerned that we would not repeat what they asked us to tell. They didn’t want to risk that we tell a different version”. The three young men supporting their parents in Lithuania, Denis Volkovskiy, Magomed-Salakh Gabaev and Adam Visingiriev, have to seek asylum in Finland.

Ms. Porkkala-Hietala accepted the testimony of Belkiz Mustieva despite the prosecutor’s objections. He argumented it by stating that there should be no trust to a witness who admits having made a wrong testimony before. Belkiz answered the challenge by telling, ”When we were tin Lithuania, we were under the influence of VSD. They didn’t seem to threaten us. They acted more like psychiatrists persuading their patient of their illness. They told us, ”VSD never loses their cases”. The assured us, ”The judge is on our side”. They guaranteed, ”Gataevs would never see you again as they would get seven years per each of negative statement on them”. To maintain their brainwashed witnesses’ stand, the VSD officers explained that it was not Khadizhat and Malik Gataevs who helped them but those people who contributed money to run the family. They threatened that the foster parents were just going to sell them to Kadyrov’s people. They promised Lithuanian citizenship and freedom from any obligations. Belkiz now tells, “We got the freedom but none of us has become happy with it”. The prosecutor might have attempted to embarrass Belkiz by his last question on the money which she had spent to come to Finland. “I am not concerned about money now. I don’t want my foster parents to be in prison”. Belkiz has decided to return to Lithuania in spite of apprehensions of likely trouble. “I am ready to face problems. No matter what they will be, they will be minor in comparison with those I have inflicted on my parents”, she states.

Ms. Porkkala-Hietala took Belkiz’s statement into account while making the decision to refuse extradition of Khadizhat and Malik Gataevs back to Lithuania. She stated that the Lithuanian legal system failed to work the way it should, to all appearances. She also referred to likelihood of life danger to both if they are sent to Lithuania. The main ground for denial the extradition request was based on the fact that the Gataevs are seeking asylum against Lithuania and the asylum process is pending.

The court ruling of Helsinki district court states, that the European Union Law of Deportation has to be interpreted as far as possible according to the framework decision of Council of Europe regarding the European Arrest Warrant and the deportation procedures between member states. It is said in the framework decision that it has no effect upon the obligation to respect the basic rights and most important judicial principles that are guaranteed with the EU agreement. Thus, the judge confirmed with her ruling that Finland as EU country sees her adherence to those rights and principles as state priority. The right for asylum is among those basic rights. If the deportation takes place when the asylum procedure is still pending, the basic rights of a deportee would be violated as well as their chance to get fair investigation into asylum application, according to the ruling. Ms. Porkkala-Hietala also stated that she refers her decision to the Geneva conventions and other human rights international agreements Finland has signed.

It looks like Finland is leading a new course in human rights. No one can be sent out of Finland until asylum request is decided.

It is one of the rear occasions when a judge refers the decision directly to hierarchy of the law and rules and commitment to respect human rights as major principles of justice.

26.01.2010

Oksana Chelysheva