OSCE, Alm.del - 2009-10 - Bilag 42: Report by Mecacci, rapporteur of the 3rd Committee (Kazakhstan)

At the beginning of May, as the Rapporteur on Human Dimension issues, I was pleased to beasked by the President of the OSCE PA, João Soares, to pay a visit to Mr. Yevgeny Zhovtis,Director of the Kazakhstan International Bureau for Human Rights and Rule of Law. Withthe support of the OSCE PA International Secretariat and the OSCE field presence inKazakhstan, a visit was requested of the authorities of Kazakhstan. I was pleased that theKazakh authorities were open to facilitating my visit to Mr. Zhovtis in his penal colony inUst-Kamenogorsk. While human rights defenders and other officials have previously visitedMr. Zhovtis, I understand that I am the first parliamentarian to see Mr. Zhovtis since hisimprisonment.BackgroundMr. Zhovtis, the most prominent human rights defender in Kazakhstan, has been working onhuman rights issues in Kazakhstan for many years. He has worked, on occasion, with thegovernment but also has been one of the harsher and most serious critics of human rights andof political and constitutional developments in the country. Mr. Zhovtis is widely considereda leading human rights activist in the country, and has testified in US Congressional hearingsand other leading forums on human rights. He founded the Kazakhstan International Bureaufor Human Rights and Rule of Law, is a member of the OSCE Panel of Experts on Freedomof Religion or Belief, and is one of the authors of the country’s National Human RightsAction Plan 2009-2012.On 3 September 2009 Mr. Zhovtis was sentenced to four years in a prison colony following afatal traffic accident; an incident that to most independent observers would not normallyresult in criminal prosecution. Domestic legal experts and international observers at the trialreported numerous procedural violations, and raised serious questions about restrictions thatprevented him from mounting a defence. Civil society and opposition political parties inKazakhstan have also raised concerns about the sentencing.After the fatal traffic accident, Mr. Zhovtis extended an apology to the victim’s family andpaid a significant sum of money in damages, US $15,000, as a traditional ‘obligation.’ Thevictim’s mother subsequently accepted his apology.The visitOn 10 May 2010 the OSCE Parliamentary Assembly requested Kazakh authorities for ameeting with Mr. Zhovtis, which was granted early in the morning on 13 May, 2010 on ashort notice for the same day._________________Raadhusstraede 1, 1466 Copenhagen K., DenmarkPhone: +45 33 37 80 40 - Fax: +45 33 37 80 30 -[email protected]

I reached the prison colony in Ust-Kamenogorsk at around 4.00 pm on 13 May, and wasallowed to enter the facility after registration. In the trip to Ust-Kamenogorsk I wasaccompanied by a field officer from the OSCE Centre in Astana.Firstly, it should be noted that Mr. Zhovtis was in good condition, considering thecircumstances in which he finds himself. The prison colony itself, located on the outskirts ofthe city of Ust-Kamenogorsk, is a minimum security detention facility within which Mr.Zhovtis has relative freedom of movement, but unlike some other detainees, he is notpermitted to leave the facility unless he receives a special permit. Concerns have been raisedas to the fairness of his treatment, as he is only assigned to jobs within the detention facility,whereas others are permitted to work outside on a kind of work-release programme. It shouldbe noted that the Organization that Mr. Zhovtis leads has an office in Ust-Kamenogorsk buthe is not allowed to work there. We met and spoke for about one and a half hours in thepresence of a guard and of a woman, supposedly a lawyer or clerk, that took notes about ourdiscussion.In meeting with Mr. Zhovtis, our conversation focused primarily on the original trial andsentencing last year, and subsequent legal proceedings. I was disappointed to hear about anumber of procedural violations, including the fact that the statements and testimonies of themother of the victim of the car accident, who had pardoned Mr. Zhovtis, was not taken intoconsideration by the court, in clear violation of Kazakh legislation, and also that anindependent expert’s analysis on the dynamics of the car accident – which proved that Mr.Zhovtis was not in a position to avoid the car accident – was dismissed by the courts.Mr. Zhovtis also expressed his disappointment at the Supreme Court of Kazakhstan’srejection of his lawyer’s most recent appeal, through which it refused to recognize the lack offairness in his trial and legal proceedings. He told me also that in the Supreme Court’sdecision regarding his lawyer’s appeal, it also addressed issues that he might have raised in asubsequent personal appeal. This pre-empted any need for subsequent appeal, and so he haddecided not to resort to such an appeal, and was instead working to table an individualcomplaint before the UN Human Rights Committee in Geneva, an institution that monitorsthe implementation of the 1966 UN Convention on Civil and Political Rights by the MemberStates, of which Kazakhstan is one.I was also told by Mr. Zhovtis that he sees his case as a ‘litmus test’ for Kazakh institutions,and for the future of the rule of law and of democracy in his country. Being a lawyer andProfessor of Constitutional Law, Mr. Zhovtis made a very analytical and balanced evaluationof the Constitutional developments of Kazakhstan since the demise of the Soviet Union. Heclearly saw his case as the result of a judicial system that can easily fail to grant the right to afair trial in Kazakhstan.Having studied law myself, and being a politician, I can say that his analysis was wellgrounded, based on serious studies and preparation on how the rule of law and democraticinstitution are supposed to function. His arguments and constructive criticism, both on hispersonal case and on the general status of Kazakh institutions, are not motivated by a politicalagenda but by the belief that without respect for the rule of law, all legal, political andjudicial institutions fail to implement their mandate and to respect international obligations,which legally or politically bound them.

ConclusionsMy conversation with Mr. Zhovtis confirmed my understanding of the case as having beenprocedurally flawed. Unfortunately, I have to conclude that the institutions involved in histrial failed to deliver a fair and proportionate judgment.He was not granted sufficient ability to mount his defence. Yevgeny Zhovtis does not disputethe details of the car crash, and has apologised to the family of the victim of the tragicaccident. However, he states clearly – as does the independent expert analysis – that there isnothing that he could have done to prevent the collision, not having violated any traffic laws.As a result, he is understandably unwilling to admit any criminal responsibility in regards tothe case.It is my conviction that it is now up to the Kazakh institutions to urgently find a justconclusion to this case. Mr. Zhovtis has already been subjected for too long to a penalty hedoes not deserve.As all other countries that have been the Chair of the OSCE, the Kazakh Government has aspecial political responsibility to make sure that OSCE commitments in the field of theHuman Dimension (Democracy, Human Rights, Humanitarian Questions) are respected inthe OSCE area, and especially in its territory; this case raises serious questions about therespect of the individual right to a fair trial in Kazakhstan.As a post-script, I unfortunately also have to note that a short press release that I issuedimmediately following my visit was refused publication on the OSCE website by the Kazakhauthorities. I was pleased with the openness that the Kazakh government had demonstrated infacilitating my visit, but their action to stop publication of a press release on the issue is ofserious concern for all, and goes against what I understand to be standard procedures withinthe OSCE.

Report to the President of the OSCE PA

Visit to Yevgeny Zhovtis, Human Rights Defender in Kazakhstan by

Matteo Mecacci, Rapporteur of the OSCE PA General Committee on Human Rights,

Democracy and Humanitarian Questions