The Trial of Evgeniy Zhovtis
On October 20 the Almaty Province Court upheld the September 3 ruling by a lower court against Evgeniy Zhovtis, founding director of the Kazakhstan International Bureau for Human Rights and the Rule of Law. 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.
Kazakh legislation allows for an appeal to the supervisory committee of the appeals court to look at possible procedural violations. In light of the procedural violations in this case, Human Rights Watch believes it is essential that the supervisory hearing orders a new investigation which re-examines the facts in this case and allows Zhovtis his full rights as a defendant to examine and challenge the evidence against him.
Recommendations
- Release Zhovtis pending further a new investigation.
- Open a new investigation in which Zhovtis is allowed fully to exercise his rights as a suspect.
Freedom of Expression and Information
On July 10, 2009 President Nazarbaev signed a package of amendments to laws dealing with the media and the internet, under which all forms of internet content - including websites worldwide, blogs, chat rooms - could potentially be considered "internet resources" and therefore subject to existing restrictive laws on expression. The law also expands the grounds for banning certain kinds of media content relating to elections, strikes, and public assemblies, using broad wording that could give rise to arbitrary interpretation.
Media outlets and journalists are faced with the constant threat of lawsuits and crippling defamation penalties. Several examples from 2009 alone are:
- On August 8, 2009, Ramazan Yesergepov, editor of the newspaper Alma-Ata Info, was handed a three-year prison sentence on charges of disclosing state secrets. The newspaper had published an article that contained corruption allegations against local authorities. Yesergepov's trial was closed and he did not have access to legal counsel of his own choosing.
- In June 2009 the independent Almaty weekly Taszhargan had to cease publishing after an appellate court upheld a prior decision awarding Romin Madinov, a member of parliament, 3 million tenge (about US$20,000) in "moral damages" for an article alleging that Madinov's business interests benefited from his legislative work.
- On September 9, 2009, a court in Almaty ordered the weekly Respublika to pay 60 million tenge (about $400,000) to the BTA Bank as "compensation for moral damages." The bank had filed suit against the newspaper after a March 2009 article discussing the possible bankruptcy of BTA Bank allegedly cost the bank USD 45 million in deposits. The appeal is still pending but the newspaper is not able to pay the fine and will cease publishing if the decision is upheld. Kazakhstan does not have a cap on defamation awards.
Together, these above developments maintain a chilling environment for the media.
Recommendations
- Place a moratorium on criminal libel, take all necessary steps to abolish the relevant articles in the Criminal Code relating to criminal libel, and establish a cap on defamation awards.
- Stop any attempt to filter internet content or block access to websites, and refrain from adding further unwarranted restrictions to the law "On mass media."
Freedom of Assembly
A public meeting of political nature in Kazakhstan that is not organized directly or indirectly by the government, or that is not in support of government policies, is likely to be denied a permit or broken up by police. Kazakhstan's law on public assemblies requires demonstrations as small as a one-person picket to be registered with the authorities at least 10 days in advance. It allows local authorities to "additionally regulate" public assemblies "with regard to local conditions," which amounts to a virtual carte blanche to limit freedom of assembly.
The government made no effort to liberalize this legislation.
Several public gatherings were prevented on the basis of this in 2009. Most recently, several individuals staging pickets in support of Evgeniy Zhovtis were detained and fined. For example, on September 11, 2009, Viktor Kovtunovsky, an independent journalist was fined the equivalent of $210 for standing alone on Almaty's central square with a banner that said "Today Zhovtis, tomorrow you." Six days later, Andrei Sviridov, another journalist, was fined for staging a similar picket.
Recommendations
- Remove excessive restrictions on freedom of assembly and ensure the laws and regulations on demonstrations are in conformity with Kazakhstan's international human rights obligations on freedom of assembly.
Access to Legal Counsel
In several high profile cases in 2009 Kazakhstan's Committee for National Security (KNB) deprived defendants of their right to legal counsel of their own choosing on grounds that lawyers must have a special clearance in order to have access to cases involving state secrets.
In summer 2009, the KNB attempted to disbar defense lawyer Daniyar Kanafin after he publicly stated that the KNB violated national and international law by preventing him from meeting his client, Mukhtar Dzhakishev, who is president of KazAtomProm, a state-owned nuclear company and stands accused of expropriation and embezzlement. The Almaty Bar Association rejected the request of the KNB to disbar Kanafin, but he remains unable to access his client.
Dmitry Parfenov and Malkhaz Tsotsoria, vice presidents of KazAtomProm, have been in KNB "safe houses" since June, allegedly in the framework of a witness protection program; both men are state witnesses against Dzhakishev. Neither of the men has access to legal counsel of their own choosing but only state defense lawyers provided by the KNB who have special security clearance. Both the KNB and the state defense lawyers pressured the men's wives not complain to the international community about their husbands treatment "if they do not want to worsen the situation". The wives are concerned that their husbands may be subjected to ill-treatment.
Recommendation
- Ensure that the Committee for National Security (KNB) cannot deny defendants the right to access to legal counsel of their own choice and ability to prepare adefense as provided under international law.
