Grigory Pasko: A Week in Almaty, Part 2

Who is Yevgeny Zhovtis? In the Kazakhstan international bureau for human rights they told me the following. Yevgeny Alexandrovich since the year 1993 heads this bureau. In the year 1977 he completed the Kazakh polytechnical institute named after V.I.Lenin with a major as a mining engineer-economist and in the course of 14 years worked in the system of the Academy of sciences of Kazakhstan (candidate of technical sciences, author of more than 20 inventions), and in the year 1999 - completed the «Adilet» Higher school of law with a red diploma.

In the year 2001, Zhovtis passed the qualificational examination in the Ministry of justice of the RK for the right to engage in lawyers' [advocate's] activity. In the year 2002 he was recognized as the best jurist of Kazakhstan at the «Person of the year» competition.

For his human-rights activity, as well as for contribution to the advancement of democracy and civil society in Kazakhstan and the world he was awarded by the international community on numerous occasions:

• laureate of the European Union and USA prize for contribution to the advancement of democracy and civil society in Kazakhstan (1998);
• laureate of the International league for human rights prize (1999);
• laureate of the International Helsinki Federation prize (2005);
• laureate of the "Svoboda» [Freedom] prize (2006);
• laureate of the Friedrich Ebert foundation prize in the field of human rights (2007).

Yevgeny Zhovtis is a member of various expert and consultative councils under the state organs of Kazakhstan (member of the Public chamber under the Majlis of the Parliament of the RK, member of the Expert council of the Commission for human rights under the President of the RK, member of the Public council under the ministry of internal affairs of the RK for overseeing the activity of the police, member of the Working group for the examination of facts of torture under the human rights Ombudsman of the RK and others), as well as being a member of the Council of experts of the Office for democratic institutions and human rights of the Organization for security and cooperation in Europe (ODIHR OSCE) on the freedom of peaceful assemblies and a member of the Coordination council of the World Movement for Democracy, uniting several thousand civic organizations all over the world.

And here the regime of Nazarbayev has decided to put such a person behind bars.

The essence of the case

From the verdict of the Balkhash district court of Almaty oblast of the Republic of Kazakhstan: «On 26 June of the year 2009 ...Ye.A. Zhovtis, at 22 hours 10 minutes operating...an autocar...violated item 19.2., 10.1 of the Rules of road traffic of the RK, i.e. did not enhance attention, did not adopt measures of precaution and during blinding by an oncoming means of transport, did not adopt measures towards braking and stopping the means of transport, not changing lanes of traffic, continued movement and allowed a runover of the pedestrian K.Ye. Moldabayev...As a result of the DTP [road transport event, Russian for "motor vehicle accident"--Trans.] the pedestrian Moldabayev...died at the place of the event».

They recounted to me that at 22 hours in Kazakhstan in the summer it is already not simply dark, but total darkness. The right-of-way on which the DTP took place is not lit. During blinding by the high beam of the headlights of an oncoming automobile, for a certain time a driver does indeed lose vigilance. And to notice a person moving with violation of the rules of road traffic along the traffic lane is practically impossible. However, the court for some reason decided that Zhovtis could have avoided a collision.

In general it has to be noted that judicial practice with respect to criminal cases with respect to DTPs - is an unpredictable thing. Not infrequently for more grave consequences of an accident the culprits get way lower terms, and sometimes even escape punishment altogether. (Recently in the blog I wrote about a DTP in Russia where the driver, through whose fault the DTP had occurred and two persons had died, was convicted conditionally [received a suspended sentence--Trans.]). In Kazakhstan too such cases are known. I do not challenge the actual fact of what happened; however, the motives of the court, which had not taken into account many circumstances, are incomprehensible to me.

It ought to be noted also that in the automobile with Zhovtis were traveling his friends - Startsev, Nagorny and Nikitenko. They testified in court that Zhovtis had not had any opportunity to avoid a collision with the pedestrian.

In the words of Roza Akylbekova, an employee of the Kazakhstan bureau for human rights, the course of the judicial examination, which lasted 2 days ( 2 and 3 September), was accompanied by the most egregious violations on the part of the court.

Allowed by judge Ch.Tolkunov were serious violations of the principles and norms of criminal- procedure legislation, as well as of the requirements contained in the normative decrees of the Supreme Court of the Republic of Kazakhstan: he did not examine all the petitions that had been declared [motions filed--Trans.]; not all the witnesses were questioned, including specialists as well; the report of an independent auto-technical expert examination was not examined...

Zhovtis's lawyer Vitaly Voronov reported to me such a detail as well: a signed undertaking and declaration of the relatives of the deceased about full compensation on the part of Zhovtis of material and moral damages and the absence against him of claims, containing a request not to bring Zhovtis to criminal liability and to dismiss proceedings with respect to the given case were not included by the interrogator in the materials of the criminal case that had been directed to the court. However, the court denied in the satisfaction of the given petition, not citing motives for the denial.

In the opinion of the famous lawyer Salimzhan Musin, this whole case - is an obvious demonstration of force on the part of the powers. «Only in Russia, - added Salimzhan Al'muratovich, - they demonstrate in the capacity of force the naked torso of Putin, while in our country they've locked up Zhovtis.»

In Russia they also lock up. And not only lock up: they have begun to kill human rights advocates - impudently, practically openly, cynically.

The verdict

But let us return to Zhovtis's trial. According to the testimony of eyewitnesses, the verdict pronounced by the judge was read aloud by him from a typewritten text of a volume of 4-5 printed sheets. Moreover, it was pronounced by the judge that the court «having heard out the appearances in the final pleadings of the defenders of the defendant and his last word...» The indicated circumstances rouse well-founded doubts that the verdict had been written (printed) by the judge after the retirement by him to chambers, inasmuch as this is physically impossible to do in 25 minutes (the time the judge was found in chambers).

The text of the verdict that was pronounced bears witness to its hurried preparation, weak reasoning and grounding.

To all this ought to be added that the court zeroed in, in the main, only on clarifying a circumstances incriminating the defendant and aggravating his liability and punishment. Neither in the process of prosecution, nor in the curse of the judicial investigation, nor in the verdict of the court was given a legal assessment to the actions of the other participants in the road transport event (the pedestrian, the drivers of the oncoming vehicle), the observance by them of the rules of road traffic etc. Groundlessly ignored by the court was the presence of the written declaration of representatives of the victimized party about full compensation of the material and moral damages caused and about the absence of claims against Zhovtis.

...When I read the verdict, the question unwittingly kept coming up again and again: to whose advantage was it to lock Zhovtis up? After all, it is obvious that on the eve of the chairmanship of Kazakhstan in the OSCE, this demonstrative move spoils the already not irreproachable image of the country.

(To be continued)