President Nursultan Nazarbaev
"Akorda" building, Left bank of the Ishim River
Astana, Kazakhstan 010000
Dear President Nazarbaev,
I am writing to express concern about the trial of Evgenii Zhovtis and to urge that you ensure that he be given a fair hearing when his appeal is heard on October 20.
As you are no doubt aware, Mr. Zhovtis, founding director of the Kazakhstan International Bureau for Human Rights and the Rule of Law, was found guilty of manslaughter following a fatal motor vehicle accident in which a young man who was on the side of a highway was killed.
Any death resulting from a motor vehicle accident is a serious matter and above all a human tragedy.
We are concerned that the investigation and trial against Zhovtis was marred by violations of Kazakh criminal procedure that amounted to serious fair trial concerns.
On July 27, the day after the accident, Zhovtis was initially assigned the status of a witness to the case but later, allegedly on July 28, was designated as a suspect, without Zhovtis' or his lawyer's knowledge. They were informed of the change of status only on August 14, although under Kazakh law, anyone who becomes a suspect should be informed as soon as that is determined.
Because he was not informed of his status as suspect, Zhovtis could not exercise his rights to defend himself at this stage of the investigation, including his right to request forensic expertise and question forensic expertise carried out by the investigation. In a preliminary hearing the judge effectively rejected without explanation a defense petition regarding this procedural violation.
At trial, Zhovtis was not given the opportunity to mount a defense. The judge either deferred without ultimately examining, or rejected almost all defense petitions without providing any explanation (judges are required by Kazakh law to provide such explanations). The judge deferred a defense petition to declare inadmissible evidence gathered during the two-week period when Zhovtis was not aware that he had been designated a suspect in the case, and could not exercise his rights, and rejected without explanation a petition to include an expert witness on behalf of the defense that would have challenged the central premise of the prosecution case.
The right to a fair trial is protected in Kazakh law and in article 14 of the International Covenant on Civil and Political Rights, to which Kazakhstan is a state-party. It is also a principle embraced by the 1990 Copenhagen Document, the key human rights agreement of the Organization for Security and Cooperation in Europe, which Kazakhstan will chair in 2010.
We have received from the Embassy of Kazakhstan statistics on sentencing of individuals convicted for traffic accidents in Kazakhstan that involved fatalities. We are grateful for the information, although statistics on sentencing are of questionable relevance to a case in which we believe the criminal responsibility of the convicted individual has not been proven beyond reasonable doubt following a fair trial that observed due process.
Given that the manner in which Zhovtis was prevented from mounting an effective defense, and incidents in the past in which prominent government critics were harassed, at a minimum there is the appearance that this tragic accident has been exploited to compromise Zhovitis's credibility.
We urge you to ensure that that Zhovtis can fully exercise his fair trial rights as his case goes on appeal and that he is allowed to present a defense to the charges, which we believe would lead to the just conclusion that he bears no criminal responsibility for the tragedy that occurred.
I thank you for your attention to this letter.
Europe and Central Asia division