Give Human Rights Defender Access to a Fair Trial
(Almaty) - The decision of a Kazakh court today to uphold the harsh verdict imposed on Kazakhstan's leading human rights defender is a terrible miscarriage of justice, Human Rights Watch said.
The Almaty Province Court heard the appeal filed by Evgeniy Zhovtis, founding director of the Kazakhstan International Bureau for Human Rights and the Rule of Law, of a September 3 ruling by a lower court. He was found guilty of manslaughter following a motor vehicle accident in which a young man was killed and was sentenced to four years in prison. The investigation and trial that led to this verdict were procedurally flawed and did not give Zhovtis the opportunity to exercise fully his right to defend himself.
"Today's ruling is a blow for anyone who cares about fair trial standards in Kazakhstan," said Rachel Denber, Europe and Central Asia deputy director at Human Rights Watch. "Zhovtis should have the right to justice."
During the appeal hearing, the defense petitioned for new technical expertise to be admitted, and to void the previous technical expertise and the previous verdict. The defense also petitioned for Zhovtis to be present during the hearing.
Zhovtis was not allowed to be present. The court contended that under the law the state is obligated to allow a defendant to be present at an appeal only if the prosecution were asking that the sentence be made harsher. Zhovtis has been held in a remand prison since the September 3 verdict.
The judge rejected or postponed all but one motion by the defense. He admitted into evidence a notarized statement by the victim's mother that she had forgiven Zhovtis and requested that the criminal charges against him be dropped.
Today, the car with the victim's mother and two of Zhovtis's work colleagues was stopped several times on the road by transport police. They made several attempts to delay them from getting to court.
After a three-hour hearing, the court decided to uphold the sentence of the lower court.
The Almaty Province Court was the final court of appeal. Kazakh legislation does allow, however, for a supervisory hearing to look at possible procedural violations. In light of the procedural violations in this case, Human Rights Watch believes it is essential that the authorities open a new investigation, re-examine the facts in this case, and allow Zhovtis his full rights as a defendant to examine and challenge the evidence against him.
Zhovtis maintains that the forensic evidence presented by the prosecution is incomplete, and that a full assessment of all the evidence would conclusively establish that he bears no criminal responsibility for the accident. An impartial and fair investigation and assessment of the evidence are critical, Human Rights Watch said.
"The Kazakh authorities should show good faith and open a fresh investigation, in which Zhovtis is allowed fully to exercise his rights as a suspect," Denber said. "And they should release Zhovtis in the meantime."
The investigation and initial trial were marred by serious due process violations, drawing widespread international concern.
On September 19, a senior official with the Organization for Security and Co-operation in Europe's Office for Democratic Institutions and Human Rights (OSCE/ODIHR) expressed concern about reports "of numerous violations of Zhovtis's right to a fair trial." Other international entities, including the European Union and the United States government, issued similar statements.
Human rights developments in Kazakhstan overall since reforms in early 2009 have been disappointing and undermine the country's credibility as it prepares to serve as the chair of the OSCE in 2010.
"The international community should continue to call for a new investigation and should measure Kazakhstan by the standards it set for itself when it sought the chairmanship of the OSCE," Denber said.
On July 26, Zhovtis was involved in a car accident that killed a young man who was on the highway where Zhovtis was driving at night. The investigation and trial that led to his conviction were marred by serious procedural flaws that denied him the right to present a defense and gave rise to concern that this tragedy may be been politically exploited.
On July 27, the day after the accident, the authorities opened a criminal case, a normal procedure after a car accident with a casualty. The investigation initially designated Zhovtis a witness. On July 28, it designated him a suspect, but did not inform Zhovtis and his lawyer until two weeks later, a serious violation of Kazakh law. This denied Zhovtis, among other things, the right to question the state's choice of experts who would conduct forensic analysis of the accident, to request a second opinion by experts of his choosing, and to pose additional questions to the experts.
According to the verdict, Zhovtis was temporarily blinded by the high beams of an oncoming car while driving late at night in Almaty province. Zhovtis said he tried to avoid hitting the man, but failed. The prosecution's forensic analysis found that Zhovtis was neither intoxicated nor driving above the speed limit at the time of the accident. The defense argued that the prosecution's forensic analysis findings about several technical aspects of the accident were flawed and based on inaccurate information that Zhovtis was denied the opportunity to challenge both during the investigation and at trial
At the trial, the judge either rejected or postponed all defense petitions without ruling on them. These actions served to deny Zhovtis the opportunity to challenge the evidence against him, violating his right to defend himself.