KAZAKHSTAN: RIGHTS ACTIVIST’S MANSLAUGHTER TRIAL OPENS AMID INTENSE INTERNATIONAL SCRUTINY
Joanna Lillis

Eurasia Insight
ticles/eav090209a.shtml
9/02/09

One of Kazakhstan’s most prominent human rights activists went on
trial September 2, charged with causing death by dangerous driving. The
trial has cast a spotlight on Kazakhstan’s judicial system. It is also
being viewed as a litmus test of Astana’s commitment to democratic
procedures, coming as it does just four months before Kazakhstani
officials take over the helm of the Organization for Security and
Cooperation in Europe (OSCE).

Yevgeniy Zhovtis, director of the Kazakhstan International Bureau
for Human Rights and the Rule of Law, went on trial at the Balkhash
District Court in the Almaty Region. He is accused of manslaughter in
the death of Kanat Moldabayev, who succumbed after being struck by a
vehicle driven by Zhovtis on July 26. That fact is not in dispute. At
issue are the degree of Zhovtis’s culpability in the case, and the
fairness of the legal proceedings.

Making a statement at the opening of the trial, which is being held
in Bakanas, about three hours’ drive from Almaty, Zhovtis said the
trial had been politicized. The July 26 accident occurred not far
from Bakanas.

Repeating condolences to bereaved members of Moldabayev’s family,
Zhovtis said he accepted "moral responsibility" for the accident. He
has given Moldabayev’s relatives roughly $15,000 in compensation, which
has been accepted. But he insisted that such a gesture had no bearing
on his legal culpability. "From the legal point of view I am innocent,
and I intend to prove this," he told the court, which was packed with
Western and OSCE diplomats, journalists, human rights activists and
leaders of Kazakhstan’s opposition parties. "Unfortunately, judging
by what is happening, this accident is being used to persecute me,"
he added.

The defense says Zhovtis’s right to a fair trial has already been
violated by numerous infringements. One of the most serious alleged
legal violations involves Zhovtis’ status during the investigation. He
originally figured as a witness, but on July 28 he was re-categorized
as a manslaughter suspect. He was informed about the change of status
only on August 14. This lag in notification, the defense argues,
deprived him of his constitutional rights, and prevented him from
becoming acquainted with the evidence gathered by the state. A defense
bid to have the case dropped and a subsequent motion to change the
judge were both rejected.

The crux of the case hinges on whether Zhovtis could have avoided
hitting Moldabayev, who was walking in the middle of a dark highway at
the time of the accident. An initial official report found that Zhovtis
had no alcohol in his system. However, a second official finding found
traces of alcohol, but well under the legal limit for intoxication.

Zhovtis says he could not have avoided hitting the victim, given the
prevailing circumstances. He argued at length in court — ultimately
unsuccessfully — to have a crucial document called the auto-technical
expert conclusion thrown out as evidence on the grounds that the data
it contained was spurious. The complicated set of speed and distance
calculations purported to show that the accident was avoidable,
but the defense argues that the data is unsubstantiated.

Zhovtis’s testimony was backed by that of his three traveling
companions, who were called as defense witnesses. Sergey Nagorniy,
who was traveling in the front seat of the vehicle, said during his
examination that "something appeared sharply from right to left ? and
there was a blow."

"I definitely did not see a person," he added.

As prosecutor Altay Zhanibekov and Marat Kabulov, the lawyer
representing the victim’s family, attempted to find discrepancies
in the defense witnesses’ testimony, the atmosphere in court became
charged. At times, audible, derisive comments were made by attendees
in the public gallery. "Respect the court!" Judge Kulan Tolkunov
barked at offenders. He stopped short of ejecting them, despite
Kabulov’s urgings.

Emotions spilled over when Kabulov sought to press Nagorniy on where
Moldabayev had been on the highway and indulged in some unexpectedly
lighthearted remarks about the location of the corpse. "You are saying
terrible things," said a visibly shocked Nagorniy.

"I am not a toastmaster; I am a lawyer," riposted Kabulov, to the
visible surprise of many in the public gallery. Kabulov followed up
with a call on all present to show respect for the court. "It is you
who is showing disrespect," called out Tolegen Zhukeyev, secretary
general of the opposition Azat Party, from the public gallery,
earning another reprimand from the judge. After Nagorniy’s testimony,
Moldabayev’s mother left the courtroom assisted by a relative.

Manat Moldabayev, the elder brother of the deceased and the first to
arrive at the scene of the crash, then testified, placing blame for
the tragedy on Zhovtis.

Kabulov, the lawyer for the victim’s family, indulged in flamboyant
rhetoric on several occasions during the proceedings. For example,
after Manat Moldabayev’s testimony, the lawyer said; "I have come
to defend the people whose blood has flowed!" The presiding judge at
one point ordered Kabulov to tone down his remarks.

The trial is scheduled to continue on September 3. A verdict is
possible on that day, some observers say. Zhovtis faces up to five
years in prison if convicted.

A statement issued by Human Rights Watch on September 1 stressed the
need for Zhovtis to receive a fair trial. "With [the] forthcoming OSCE
chairmanship, now is an important time for Kazakhstan’s authorities
to show that they fully observe fair trial standards," Andrea Berg,
Central Asia researcher at Human Rights Watch, said in remarks quoted
in a press release.

Some local observers, however, doubt that Zhovtis will get a fair
trial. "There is no chance of a fair trial," Petr Svoik, Azat party
deputy chairman, told EurasiaNet during a short adjournment in the
proceedings. "All the behavior of the court shows that some sort of
order [on the verdict] exists."

Zhovtis’s human rights work has earned him plenty of enemies, Svoik
added. "[The order] is not from the very top," he suggested. "It is
probably the leaders of law-enforcement bodies whose lives Zhovtis
has spoiled and who have decided to take revenge."

Editor’s Note: Joanna Lillis is a freelance writer who specializes
in Central Asia.