In Oskemen on May 15, 2014 the monitor attended a trial over V.G.Popov accused of
illegal storage of weapons. The accused
had previous convictions, was released in 2013 upon completion of the
sentence. Relatives of the accused,
conscious of possible discrimination have contacted the office of the
KIBHR&RL. The monitor has not registered
any violations in the course of the trial.
The trial has started on time, and was carried out in line with the
Criminal Procedure Code provisions. The
awarded punishment was within the limits of sanctions of the Criminal Code’s
article, based on ample evidence provided to court.
In Kostanai,
monitoring covered 4 cases. One case was
about torture committed by policemen, who filed an appeal with the Kostanai
Oblast Court that convened on June 24. The monitor did not register any
violations of the Criminal Procedure Code.
The ruling of the first instance court by which the policemen were found
guilty of torture and sentenced to 2,6 years of imprisonment was upheld and
left unchanged.
The next case was
on interfering with the witness – as
reported by defense party.
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On June 27, during
the monitoring of a criminal trial where Alexey Malyshev was a defendant in a
murder trial, no facts of Criminal Procedure Code violations were
registered. Also, on June 25, 2014, the
monitor has attended a court hearing on an administrative case. An appeal has been filed by defense lawyer of
torture victim. Police officers have
imitated an offence, having spooned sunflower seeds in the arms of Konstan
Mukhin in order to apprehend him. Mukhin
was sentenced to 3 days of administrative detention and was placed into special
reception facility where police officers have tampered with him; they were
exerting physical and psychological torture to force him give
self-incriminating testimony on a committed heavy crime. In the first instance court Mukhin was
deprived of right to defense, his rights were not explained to him, but despite
these serious violation of his rights, the judge has not granted the appeal
(for more detailed information, please see http://www.bureau.kz/data.php?page=2&n_id=7147&l=ru).Another case
where legal support was provided was about protection
of rights of Natalya Sadykova – an independent journalist: -
On March
5, 2014, she was charged with libel, combined with accusations against a person
in committing a corruption-related serious or very serious crime (RK Criminal
Code, article 129, p.3, which foresees a sanction of up to 3 years of
imprisonment). The case was initiated
upon private charge of former MP (member of majilis) Maral Itegulov, who
claimed that Natalya Sadykova, under the pen name of Bakhyt Ilyasova has
published on “Respublika” news portal an article titled “Not enough tender for
everyone”, where she intentionally defamed him and discriminated his business
reputation. On March 17, 2014 Raziya
Kustanova, judge of Aktobe City Court has in absentia sanctioned arrest of
Sadykova. At that time Natalya Sadykova
was already in Ukraine where she left on March 9, 2014. At present N.Sadykova has to stay in Ukraine
because should she return she will be immediately arrested and placed in a
pre-trial detention facility upon arrival. A contract was concluded with defense attorney
who needs to familiarize with case materials in order to challenge delivered
rulings pertinent to the case.
N.Sadykova has stated right from the start that there is no defense
attorney in Aktobe whom she could trust, while in the neighboring Uralsk no
attorney volunteered to take the case.
Kim Snezhanna, defense attorney from Kostanai who was hired to handle
the case arrived in Aktobe on June 6, 2014 in order to familiarize oneself with
the case materials. However, she was not
granted access to the criminal case materials.
She was referred by court to Public Prosecution office where the case is
allegedly being kept, and then she was sent to police where she was told that a
judge’s permission is required to access case materials. Denial to grant access to case materials was
not legitimate. Ultimately, the attorney
was not able to exercise the right of a defense attorney granted under the law
on defense attorney activity and was unable to perform required services to
defend her client. In that respect the
KIBHR&RL has issued a press-statement (see http://www.bureau.kz/data.php?page=1&n_id=7193&l=ru). The attorney has filed a
complaint with public prosecution office.
However, the judge took no actions to ensure that attorney is granted
access to case materials and, on the contrary, has returned the original
warrant attached to the case and a request for access to case materials by mail,
actions which represent open and arbitrary violation of the rights to defense
and access to justice. Officials of
state bodies have infringed the right of the attorney to become familiar with
all the case materials resulting in inability of N.Sadykova enjoy her right to defense. An interview to the republican Vremya
newspaper was given to this end (see http://www.time.kz/articles/nu/2014/07/02/detskij-sud), while defense attorney has challenged the actions
of the judge in Supreme Judicial Council.
The attorney continued to pursue obtaining of permission to be
familiarized with case materials.In Uralsk the monitor has observed a trial
over a claim of Yeslyamova Tamara, journalist, ex-director of Journalists’ Initiative
LLP (April 17 and June 20, 2014) against Department of Court Marshals. -
In 2012 Uralsk city
court no.2 has granted the claim of Internal Policy Unit against journalist
Lukpan Akhmedyarov and Journalists’ Initiative LLP to protect dignity and
honour. The judicial disposition of the
court’s resolution finds that information provided in article “Brother, in-laws
and other useful connections” published in Uralskaya nedelya newspaper on
January 12, 2012: “Marriages are made in heaven, but profit they bring is
rather earthly. This fact is also
confirmed by a career growth of formerly school PE teacher Tlekkabyl Imashev who
is presently a Head of Internal Policy Unit.
On top of personal qualities, former PE teacher possesses an asset of
being a relative of Imangali Tasmagambetov – ex Prime Minister of the country”,
does not correspond to the reality and undermines business reputation of
T.I.Imashev. The court has compelled the
defendant to bring official apologies to the civil servant and to reimburse
moral damage in the amount of M5kzt.
Starting from February 2014, T.Yeslyamova was no longer a head of the
LLP in question, but she was on the list of debtors banned from leaving the
country. Numerous requests submitted to
the Department of Court Marshalls were not productive so the journalist decided
to file a lawsuit. Representation in
court was done by Pavel Kochetkov, director of KIBHR&RL West Kazakhstan
branch. Trial was a success; the judge
has partially granted motion of T.Yeslyamova having found actions of Court
Marshalls illegal and ruled to remove T.Yeslyamova from the debtors’ list due
to absence of grounds.Monitoring of another
high profile trial was conducted (April 8, June 10, 2014): -
Former member of
Alga! Party Ruslan Abdenov has filed a lawsuit to protect honour and dignity
against the activists of the same party – Marat Zhanuzakov resident of
Kokshetau city and Askar Shaigumarov – blogger,
correspondent of Pravda Kazakhstana newspaper, resident of Uralsk city accusing
them of allegedly preparing and publishing on ablyazov.org website an address
to French Justice Minister with a request to ban extradite M.Ablyazov. The extensive list of signatories consisting
of civil activists and Alga! party members included his name and surname too
(no patronymic name), but he insists that he did not sign such address. Therefore he believes that the abovementioned
individuals did so without his consent and caused him thereby moral
distress. The plaintiff tried to deny
information discrediting his honour and dignity and requested that the address
to French Justice Minister is removed from the website. Also, he demanded public apologies and joint
compensation of moral damage in the amount of M1kzt. The trial began in the absence of one of the party
to the trial – plaintiff Zhanuzakov, who lives in Kokshetau and who informed
the court of financial difficulties due to which he was unable to attend the
trial. Regardless of that the court took
no measures to ensure presence of the plaintiff during hearing which
contradicts provisions of the Criminal Procedure Code of RK and tried the case
in absentia. The court has partially
granted Abdenov’ lawsuit having compelled defendants to deny and remove
discrediting information involving plaintiff Ruslan Abdenov’s name that was
published without his consent on the website http//ablyazov.org/obrashenie-k-ministru-yusticii.htm
titled “Address to the Justice Minister of France” dated February 18, 2014 by
means of repeated publication and denying the article on the same website
within 10 days of coming into force of court’s ruling and also ruled to collect
200 000 (two hundred) tenge for moral damage compensation and 60 000 (sixty
thousand) to pay for representative expenses.
KIBHR&RL was a legal representative of defendants and has noted that
while deliberating on the ruling the court was not presided by the norms of
material law, the documents and actual circumstances of the case. For instance, in the course of the trial the
plaintiff was not clear as to the subject of the lawsuit, he failed to indicate
what exactly needs to be denied and the court did not demand that plaintiff
does so (a more detailed analysis of the case in Annex 2).
Recommendations
According to
the laws of the Republic of Kazakhstan a ruling on an administrative case sanctioning
an arrest must be enforced immediately after proclamation of the judgment and
arrested person has to be taken under custody and delivered to specialized
reception for administrative detention despite the fact that such ruling is yet
to come into force and that it can be challenged within 10 days of its
proclamation. Often such procedure is
highly ineffective and at the same time a person under administrative arrest does
not have an opportunity to file a motion to appeal such judgment simply due to
absence of pen and paper. Often, once
the ruling on administrative arrest is enforced filing of any kind of motion
becomes meaningless. To this end, as it
has already been stated on numerous occasions, it is necessary to introduce changes to the national legislation to
avoid that person is imprisoned before the administrative arrest judgment comes
into effect.
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The monitors have
also noted that despite existence of legislative provisions access to justice
and effective means of legal protection, including access to defense attorney
are not effective in practice, when it comes to the rights of certain groups,
namely journalists and civil society activists.
Therefore the state needs to
pursue changes in the enforcement practice and public prosecution office must
monitor and respond to such facts.
