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Dismay as Kazak Court Upholds Zhovtis Conviction

Western diplomats join OSCE and rights activists in questioning judge’s decision that trial was sound.
By Ainagul Abdrakhmanova
There has been widespread criticism of this week’s appeal court decision to confirm a prison sentence passed last month against Yevgeny Zhovtis, a leading human rights defender in Kazakstan.

On October 20, the Almaty regional court upheld the four-year sentence given to Zhovtis, who heads the Kazakstan Bureau for Human Rights and Rule of Law. He was convicted on September 3 of causing the death of a pedestrian by dangerous driving. (For a report on the trial, see Kazakstan: Jailing of Rights Activist Condemned, RCA No. 588, 10-Sep-09)

Human rights groups and western diplomats have expressed disappointment that the appeals hearing failed to address concerns about possible procedural violations during the initial trial, and renewed calls for a review of the case.

At the appeals session, the judge either rejected outright or suspended judgement on all except one of the motions put to him by Zhovtis’s defence team.

One of these was a request for new forensic tests to determine technical aspects of the accident. Lawyers for Zhovtis say he was denied an opportunity to question the conduct of forensic testing early on in the investigation, because investigators failed to inform him that his initial status of witness had been changed to that of suspect.

Judge Yerzhan Totybay-Tegi turned down a plea for the defendant to be allowed to attend his appeals hearing, but did accept into evidence a statement by the dead man’s mother that she had forgiven Zhovtis and wanted the charges against him dropped.

The decision to stand by the verdict elicited a wave of criticism from western diplomats, local and foreign human rights activists and the Organisation for Security and Cooperation in Europe, OSCE, which Kazakstan is to chair next year.

The United States embassy voiced concern at the decision and urged the Kazak government to launch a review of the way the case had been dealt with procedurally. Although in this case the Almaty court is the highest place the defendant can appeal to, the law provides for procedural reviews to ensure due process has been followed.

The French foreign ministry noted that Zhovtis was not present at the hearing and said that “the rights of the defence were not fully respected”, adding that it hoped the verdict could be reviewed.

The head of the OSCE Office for Democratic Institutions and Human Rights, Janez Lenarcic, issued a statement on October 21, saying, "We are dismayed by the appeal court's reported failure to appropriately address the apparent violations of due process that occurred during the initial trial.”

Lenarcic said that while Zhovtis should not be entitled to special treatment, it was the responsibility of the Kazak authorities to guarantee his right to a fair trial as enshrined in OSCE documents.

The New York-based Human Rights Watch called the ruling “a terrible miscarriage of justice”.

“Today's ruling is a blow for anyone who cares about fair trial standards in Kazakstan," said According to Rachel Denber, the group’s deputy director for Europe and Central Asia. "The international community should continue to call for a new investigation and should measure Kazakstan by the standards it set for itself when it sought the chairmanship of the OSCE."

Local human rights defenders were equally shocked, although less by the ruling itself than by the Kazak authorities’ apparent disregard for the numerous international expressions of concern, not least from the OSCE.

“Of course I had no illusions about the Kazak legal system,” said Ninel Fokina, head of the Almaty Helsinki Committee for Human Rights, “but there were so many violations during the initial trial that [on appeal] the verdict should have been annulled.”

Viktor Kovtunovsky, a political analyst and head of the Civil Society foundation said that although he had anticipated that Zhovtis’s conviction would be upheld, he had been hoping the sentence would be lightened.

“Countries that supported Kazakstan’s OSCE chairmanship are now placed in an embarrassing situation by the authorities’ actions,” said Kovtunovsky. “They are going to have to respond to what’s happening in Kazakstan in a very serious manner.”

Kovtunovsky says Kazakstan needs to be reminded of its obligations as an OSCE member in light of its forthcoming chairmanship.

“If the OSCE and its member states tolerate this, it this will mean that the OSCE’s values don’t exist,” he said.

Sergei Duvanov, a journalist who is leading the committee set up to defend Zhovtis’s rights, said, “It is a worrying trend that [President Nursultan] Nazarbaev is less and less receptive to views expressed by western countries. Kazakstan is going to chair the OSCE, so this is a direct challenge – Kazakstan is trampling on all the principles of this organisation.”

Duvanov concluded, “We do not have the right to lose hope, and we will fight for Zhovtis’s freedom until we are successful.”

Ainagul Abdrakhmanova is an IWPR-trained journalist in Kyrgyzstan.

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