KAZAKHSTAN: LAWYER FOR FORMER KAZATOMPROM HEAD RETAINS

UNCLAS SECTION 01 OF 02 ASTANA 001255 SIPDIS SENSITIVE STATE FOR SCA/CEN, DRL E.O. 12958: N/A TAGS: PGOV PREL PINR PHUM SOCI KDEM KCRM KZ SUBJECT: KAZAKHSTAN: LAWYER FOR FORMER KAZATOMPROM HEAD RETAINS CREDENTIALS, BUT HAS YET TO SEE HIS CLIENT REF: ASTANA 0943 ¶1. (U) Sensitive but unclassified. Not for public Internet. ¶2. (SBU) SUMMARY: On July 22, the Almaty Bar Association rejected a motion filed by the Committee for National Security (KNB) to disbar Daniyar Kanafin, the lawyer hired by the family of Mukhtar Dzhakishev, the former head of state-owned nuclear company Kazatomprom, to defend Dzhakishev on corruption-related charges. In its motion, the KNB argued for Kanafin's disbarment for "violating professional norms" by fostering "a negative image" of Kazakshtani legislation. Kanafin had made several public statements criticizing the Kazakhstani authorities for barring him from seeing his client or reviewing the case because he lacks the necessary state-secrets clearance. In his public statements, Kanafin argued that the KNB has effectively limited his client's right to choose his own representation, a breach of Kazakhstan's Constitution and international obligations. He asserted to us privately that the regulations on state secrets are applied in such a way as to "steer the defendants" to particular "state-approved" lawyers. Dzhakishev's wife traveled to London and Vienna to publicize her husband's case and gain support among the international community. END SUMMARY. ALMATY BAR ASSOCIATION REJECTS MOVE TO DISBAR ¶3. (SBU) On July 22, the Almaty Bar Association rejected a motion filed by the Committee for National Security (KNB) to disbar Daniyar Kanafin, the lawyer hired by the family of Mukhtar Dzhakishev, the former head of the state-owned nuclear company Kazatomprom (KAP),to defend him on corruption and embezzlement changes. Dzhakishev has been in detention since May (reftel). Kanafin, who has not had access to his client or the case files because he does not have the necessary state-secrets clearance, had made several statements in the press criticizing Kazakhstan's state secrecy laws as inconsistent with international norms. In the July 7 motion, a KNB chief investigator accused Kanafin of "grossly and deliberately violating professional norms" by fostering a "negative image" of Kazakhstan's legislation and government bodies both at home and among the international community. On July 22, the Almaty Bar Association sided with Kanafin in rejecting the KNB's motion and filed a counter-motion for disciplinary action to be taken against the chief investigator for "putting undue pressure on a legal professional." STRONG REACTION FROM INTERNATIONAL COMMUNITY ¶4. (SBU) Shortly after the KNB filed its motion with the Almaty Bar Association, the International Committee of Jurists (ICJ),a Switzerland-based NGO that works on issues of international law and human rights, released a public statement calling on the Kazakhstani authorities to withdraw the disbarment proceedings against Kanafin. In its July 9 statement, which was widely covered in the opposition print media, the ICJ argued that an attempt to disbar a lawyer for his criticism of the law is contrary to the fundamental principles of the independence of lawyers and limits their freedom of expression. The statement urged the Kazakhstani authorities to uphold Kazakhstan's obligations under the International Covenant on Civil and Political Rights (ICCPR),which stipulates that citizens should not be penalized for expressing their views on issues of law and policy. KANAFIN BARRED FROM SEEING HIS CLIENT ¶5. (SBU) Meanwhile, Kanafin has yet to see his client Dzhakishev or to review the case files because he lacks the necessary state-secrets clearance. The case was classified as "secret" by the KNB because it involves "information on uranium reserves and their exploitation," which the KNB argued could be classified as a state secret. It therefore denied Kanafin's May 26 application to serve as Dzhakishev's lawyer. ¶6. (SBU) Kanafin has argued publicly that the KNB has effectively limited his client's right to choose his own representation, a breach of Kazakhstani Constitution and Kazakhstan's obligations under the ICCPR. He also asserted to us privately that the regulations on state secrets are applied in such a way as to "steer the defendants" to particular "state-approved" lawyers. As he explained, there are no clear instructions on how a lawyer could apply for a state-secrets ASTANA 00001255 002 OF 002 clearance, nor is there a master list of lawyers who do have clearances. In Dzhakishev's case, the KNB provided the family with several names of "cleared" lawyers, but Kanafin asserted to us that all the lawyers listed "are on the company payroll." Dzhakishev himself has dismissed one such lawyer assigned to his case, and has announced his intention to defend himself unless allowed to meet with lawyers hired by his family. ¶7. (SBU) In its July 9 statement, the ICJ warned that barring a defendant's choice of legal representation for reasons of state secrecy laws threatens "fair trial rights and the independence of the legal profession." The head of Kazakhstan's Human Rights Bureau NGO, Yevgeniy Zhovtis, told the press on July 22 that "the right (to representation) has been flagrantly violated since the very beginning of this case." "The defense lawyers were named by the investigators, in this case by the KNB," argued Zhovtis. DZHAKISHEV'S FAMILY PUBLICIZES CASE IN EUROPE ¶8. (SBU) The wife of Mukhtar Dzhakishev, Dzhamiliya Dzhakisheva, recently returned from London and Vienna, where she traveled with Kanafin to publicize her husband's case. At a July 22 press conference in Almaty, Dzhakisheva said she met with representatives of human-rights NGOs, journalists, and several members of the British parliament, who were "shocked at the fact that the basic human rights, such as the right to choose a defense lawyer, are not being observed" in Kazakhstan. She accused the KNB of "applying psychological pressure" on her husband by not allowing him to meet with his family since the beginning of his detention. Dzhakisheva said that she also met in London with Mukhtar Ablyazov, the ousted chairman of BTA bank who fled Kazakhstan in February, who "promised to help" on the case. (NOTE: The accusations against Dzhakishev center around a claim that he collaborated with Ablyazov to sell state shares in key uranium mines at far below market price (reftel). END NOTE.) ¶9. (SBU) COMMENT: The details of the case against Dzhakishev and his associates at KAP remain murky because of the secrecy imposed by the KNB. Regardless of whether Dzhakishev is actually guilty of charges, the government's motivation in going after him is, as noted in reftel, likely at least in part a result of his ties to ousted BTA bank head and opposition financier Mukhtar Ablyazov -- who himself appears to be guilty of looting BTA of several billion dollars. The bar association's rejection of the request to disbar Kanafin is, in our view, a very positive sign -- a demonstration that a key element of civil society is able to act independently and stand up to a powerful government body like the KNB to protect the rule of law. END COMMENT. HOAGLAND