Kazakhstan: Rights activist receives four-year jail term for vehicular manslaughter

Joanna Lillis: 9/03/09

In a case that is sending shockwaves through Kazakhstan's non-governmental organization community, Yevgeny Zhovtis, one of the country's leading human rights activists, was found guilty on September 3 of vehicular manslaughter and sentenced to four years in prison. Prior to the reading of the verdict, Zhovtis denounced his two-day trial as a "political setup."

Zhovtis' case stemmed from an auto accident on July 26, in which the car he was driving hit and killed a pedestrian, Kanat Moldabayev, in a rural area of the Almaty Region.

During a break before the presiding judge, Kulan Tolkunov, announced his decision on September 3, Zhovtis vowed that he would appeal what he expected to be a guilty verdict. He went on to express a belief that he was being punished for his professional work, and for his criticism of government policies. "It's a demonstration of strength, a demonstration of the absence of the rule of law," Zhovtis said, referring to the legal case against him. "It's all decided at the political level."

Immediately after sentencing, Zhovtis was bundled out of the courtroom and into a waiting sedan without having the ability to talk with supporters, or make any kind of statement. Supporters, including rights activists and opposition politicians, who packed the public gallery during the trial, shouted "shame, shame" as Zhovtis was led away to immediately begin serving his prison term. [Editor's Note: Zhovtis is a board member of the Central Eurasia Project (CEP) of the Open Society Institute (OSI) in New York. EurasiaNet operates under the auspices of CEP/OSI].

As the trial wound up, Vera Tkachenko, his public defender, called for Zhovtis to be characterized as a "political prisoner."

"This is a person who has been defending people's rights for two decades. Unfortunately, for two days you have not been able to defend his rights," she told the court. Zhovtis refused to take the stand in his own defense in protest against what he said were infringements on his rights as a defendant.

Defense lawyer Vitaliy Voronov accused the court of "bias" and "gross violations," pointing to the refusal of Judge Tolkunov to provide timely rulings on several defense motions, which were left pending until the closing arguments, when the judge abruptly turned them down. Some defense motions concerned a key piece of prosecution evidence, the so-called "auto-technical expert conclusion." The defense disputed the reliability of the data contained in the report, which concluded that Zhovtis could have avoided the accident. Zhovtis asserted that some of the calculations of speeds and distances were based on inexact estimates. The judge refused to have the document excluded as evidence. Tolkunov also did not allow another conclusion to be drawn up, or to permit the defense to call alternative expert witnesses.

According to the defense, Zhovtis's rights were also violated when he was described in case, materials as a criminal. "Are you acquainted with the presumption of innocence?" Zhovtis inquired caustically of investigator Mukhit Sadirbayev. "Who else committed the crime apart from you?" responded Sadirbayev, to derisive laughter from the public gallery.

The court addressed another key factor that the defense said amounted to a violation of Zhovtis's rights – the fact that he was not immediately informed when he became a suspect in the case rather than a witness. Authorities downplayed this complaint as a bureaucratic oversight.

There were heated exchanges over the victim's movements just prior to the collision. His location and direction of movement at the time of impact were not satisfactorily established. The defense argued that Moldabayev should not have been in the highway, and if he had been walking along the roadside he should, by law, have been facing oncoming traffic. Evidence that Moldabayev may have been violating pedestrian rules when Zhovtis hit him was glossed over by the family's lawyer, who said the rule about oncoming traffic was not familiar to rural residents.

The family has accepted some $15,000 by way of compensation from Zhovtis, who has assumed moral, but not criminal responsibility for the accident.

Prosecutor Altay Zhanibekov declined to comment on the trial. During the second day of testimony prosecutors revealed that test results showed no traces of alcohol in Moldabayev's system at the time of the tragedy. An initial test also showed that Zhovtis had no alcohol in his system. But a second test on Zhovtis turned up a minute trace, which was well under the legal limit for intoxication.

After the witness testimony was complete, the defense requested an adjournment until September 7 to prepare final arguments. The prosecutor countered by requesting just one hour, and – to Voronov's outrage – the judge settled on a 40-minute break to prepare a summation. As the court adjourned, there were outbursts from the public gallery, with most comments critical of the short preparation time. "Prosecutor! Shame on you! Have you got a conscience?" journalist Sergey Duvanov called out. In 2003, Duvanov received a three-and-a-half-year sentence for sexual assault, a verdict he maintains was politically motivated.

"Tomorrow you will be on trial and there will be no one to protect you!" added Vladimir Kozlov, deputy leader of the unregistered Alga! Party. Kozlov has also been in the dock: in May he was convicted with several other opposition politicians of aiding and abetting a crime that the defendants said they were unaware of.

As the trial came to an end, Zhovtis made a short statement before the closing arguments. "There is no law here; there is no justice here. Where there is no law and no justice, unfortunately there is a political setup," he told the court.

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