On September 3, 2009, after a rushed and unfair trial, prominent Kazakh human rights defender Yevgeniy Zhovtis was sentenced to four years imprisonment for a traffic accident that resulted in the death of a pedestrian. Zhovtis was prevented from mounting an adequate defense, and both the trial and appeal were severely biased against him. The excessive prison term Zhovtis is serving seems meant to stifle civil society activism in Kazakhstan. This case highlights systemic flaws in Kazakhstan's judicial system and its vulnerability to political interference.
On July 26, 2009 at about 10 p.m., Yevgeniy Zhovtis was driving on an unlit road in Almaty Province. He was driving under the speed limit. When the lights of an oncoming car impaired his vision, he slowed down. He saw a man in the road. Despite braking sharply, Zhovtis was not able to avoid a collision and struck the man, who died of his injuries.
The following day, the police opened an investigation into the incident. On July 28 the police designated Zhovtis as a criminal suspect. However, he was not informed of this for two weeks. The police continued to question him as a witness—without the rights of a suspect—until August 14. In the course of these interrogations the police asked Zhovtis to estimate the speed at which he was traveling and the distances involved. Based on these general and unverified estimates, the prosecution produced an analysis stating that the accident was avoidable. As Zhovtis was not aware of his status as a suspect, he could not exercise his right to pose questions to the expert and request additional expert analysis. The police only allowed one day for Zhovtis and his lawyers to study the case file.
After the accident, Zhovtis extended an apology to the victim's family and paid US$15,000 in damages that he described as his "moral obligation." The mother of the victim accepted his apology and wrote a statement explaining that she had reconciled with him, which under Kazakh law should lead to a formal procedure ending the criminal case. However, the police ignored this statement and insisted that the case go to trial.
The trial was scheduled to start less than a month after the accident, on August 27. The defense received only two days notice. As his lawyers were unable to attend, the trial was postponed to September 2.
Only witnesses called by the prosecution were allowed to testify in court. The prosecution focused on the evidence of an "auto-technical" expert who concluded that the accident could have been avoided. The defense proposed that the court consider the evidence of independent experts who stated that the accident could not have been avoided. However, the judge refused to allow the independent experts to give evidence.
The judge either rejected or ignored all substantive applications of the defense crucial for Zhovtis to be able to prove his innocence, including: an application to call expert witnesses to challenge evidence that the accident was avoidable; an application to include as evidence a statement from the victim's relatives; an application to declare inadmissible in accordance with Kazakh law any evidence gathered by the prosecution during the two-week period when Zhovtis was not told that he was a suspect; and an application to request additional expert analysis. Zhovtis's lawyers asked for one day to prepare a final statement but were only allowed 40 minutes.
Zhovtis was convicted of "violating traffic regulations, which caused the death of a person" and sentenced to four years in a minimum security prison and a three-year driving ban. The court gave no explanation for imposing such a long sentence, one year short of a statutory maximum, despite the lack of any aggravating factors.
The Appeal and the Supervisory Complaint
The appeal was heard on October 20, 2009. Zhovtis applied to be present at the hearing, but he did not receive a reply and was not transported to the courtroom from the detention center. The court denied or left without consideration all but one of the defense applications. While the court included in the case file a new statement by the mother of the deceased stating that she had reconciled with Zhovtis and he had paid damages, they made no reference to it in their decision to uphold the verdict and sentence.
On December 10, 2009, the supervisory college of the Almaty province court refused to initiate supervisory proceedings to review the fair trial violations and upheld the verdict. On April 26, 2010, the Supreme Court also refused to consider supervisory proceedings.
The Open Society Justice Initiative is acting as co-counsel together with the Kazakhstan International Bureau for Human Rights and the Rule of Law in a complaint to the UN Human Rights Committee.
Violation of the Right to Call Independent Expert Witnesses. Both the trial court and the appeal courts refused to hear the evidence of the independent experts proposed by the defense, in violation of Article 14(1) and Article 14(3)(e) of the ICCPR. In addition, the appeal court refused to allow Zhovtis to participate in his appeal hearing, further violating the principle of equality of arms as well as the right to appeal.
Violation of the right to a fair trial. The trial and appeal processes were manifestly arbitrary and amounted to a denial of justice, failing to respect the principles of impartiality, equality of arms, and the right to silence, contrary to the right to a fair trial in Article 14.
Arbitrary sentence of imprisonment. The sentence imposed was arbitrary in that it was for the improper purpose of silencing a human rights defender, and was imposed after a trial that amounted to a denial of justice, in violation of Article 9 (arbitrary detention). The conditions of detention are degrading and the prison rules have been applied in a discriminatory way, violating Article 10 (degrading treatment).
Failure to protect a human rights defender. The trial process was suborned in order to silence a prominent human rights defender and prevent his legitimate activities, in violation of numerous rights including freedom of movement, privacy, association, and expression.
July 26, 2009. Road accident occurs.
August 14, 2009. Zhovtis is informed of the charges.
August 27, 2009. The trial begins but is delayed as defense lawyers not present.
September 2-3, 2009. Trial. Zhovtis convicted and sentenced to four years imprisonment.
October 20, 2009. The appeals court in absentia rejects all substantive motions of the defense but one and upholds the trial court verdict.
December 10, 2009. The supervisory college of the Almaty province court refuses to open the supervisory review and upholds the decision of the lower courts.
April 26, 2010. The Supreme Court refuses to open the supervisory review.
November 9, 2010. Communication filed with the UN Human Rights Committee.