KAZAKHSTAN: AMBASSADOR RAISES ZHOVTIS WITH KAZAKSTANI

C O N F I D E N T I A L SECTION 01 OF 03 ASTANA 001494

SIPDIS

STATE FOR SCA/CEN, EUR/RPM, DRL

E.O. 12958: DECL: 09/04/2019
TAGS: PGOV PREL PHUM OSCE KZ
SUBJECT: KAZAKHSTAN: AMBASSADOR RAISES ZHOVTIS WITH KAZAKSTANI
PRESIDENCY

REFTEL: ASTANA 1470

Classified By: Ambassador Richard E. Hoagland: 1.4 (B),(D)


1. (C) SUMMARY: On September 8, the Ambassador met with
Presidential Foreign Policy Adviser, Kairat Sarybai, for a frank
exchange on the case of internationally-respected human rights
advocate, Yevgeniy Zhovtis, who was convicted of vehicular
manslaughter and sentenced to four years in a penal colony [reftel].
The Ambassador delivered a strong message on the importance of
careful consideration of the court's procedural violations during the
appeals process, and finding a way forward that ensures continued
good bilateral relations. Sarybai expressed the government of
Kazakhstan's strong displeasure with Embassy Astana's September 4
public statement, calling it "unfortunate and unexpected." At the
same time, he assured the Ambassador that the court system will
investigate all claims of legal violations. END SUMMARY.


2. (C) The Ambassador asked Sarybai to read the Embassy's non-paper
[see text in para 11 below] before they started their discussion.
After reading it carefully both in English and in Russian, Sarybai
thanked the Ambassador for the information. He then commented rather
testily that "there is no reason for a personal meeting, because the
Embassy has already issued a statement." The Ambassador replied that
a public statement [see text in para 10 below] and private
conversations can differ considerably, and it is important to have a
full, open, and honest conversation. Sarybai responded, "You know
that all doors of all state bodies are always open to you. President
Nazarbayev trusts you and has instructed us to listen and to have an
open dialogue with the Embassy."


3. (C) The Ambassador outlined for Sarybai the current political
context in Washington and elsewhere, listing recent Kazakhstani
decisions that have caught Washington's attention, especially
Kazakhstan's suspension of WTO bilateral negotiations and the passage
of the Internet law. Emphasizing that his words were not a threat,
the Ambassador stated that Washington is alarmed and closely watching
this situation. He said, "Perception is sometimes more important
than reality. It is our job, both you and me, to work together to
manage the fallout from the current situation so that our top leaders
are best served. Our bilateral relationship has been on an upward
trend, and we both want that to continue."

EMBASSY'S PUBLIC STATEMENT "UNFORTUNATE, UNEXPECTED, PERPLEXING"


4. (C) Sarybai said from prepared talking points that he needed "to
point out principles." Starting with "the right to live," he
specifically referred to the deceased by name. "Any action leading
to a death must be properly investigated," Sarybai stated, and the
Ambassador agreed. He then asserted the importance of the rule of
law and an independent judicial system. The Ambassador again agreed.
On the latter, he emphasized that "no one has the right to question
the independence of our courts. Democracy is not just a method of
co-existing; equality means no interference in internal affairs; and
partnerships do not allow mentorship." Turning to the Embassy's
public statement, Sarybai termed it "unfortunate and unexpected." He
then looked at his notes and said he was asked also to call it
"perplexing."


5. (C) The Ambassador again expressed concern over the reported
irregularities in the court case and emphasized the importance of the
appeals process. Sarybai responded, "As a friend, I have to tell you
any public involvement is counter-productive." He added that the
OSCE cannot be linked to this case. He assured the Ambassador of a
proper appeals process.


6. (C) Reading from a spread sheet with statistics on similar cases,
Sarybai commented somewhat archly that the Kazakhstani public wonders
"why the U.S. Embassy has not reacted to all 136 similar such cases
in the past six months." After the Ambassador responded by
emphasizing Zhovtis' international prominence, Sarybai said that the
public now "perceives specific ties between the U.S. Embassy and him
[Zhovtis]." The Ambassador interjected that's nonsense because

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Zhovtis is well-known to have regular public contact with many
embassies and international organizations. Sarybai persisted, "Why
in the case of Zhovtis are the rules different when you say the rule
of law is the same?" He then huffed, "It's interference, in my
opinion."

"PRESSURE! BLACKMAIL!"


7. (C) The Ambassador once again emphasized the importance of
perception and "that the opportunity still exists to undo some of the
damage." Sarybai said, "I am always at your service -- before public
statements." He then returned to his prepared points. "One: The
case is not over. Two: The court can manage and investigate
improper things, if they happened. Three: Do not make it a public
affair with pressure and blackmail." On the last point, Sarybai
explicitly linked the statement to a recent press interview in which
the head of the OSCE Center in Astana had said that there was still a
one-percent chance that Kazakhstan could be denied the 2010 OSCE
chairmanship. Sarybai concluded, "The appeals process will
definitely investigate how the case was conducted."


8. (C) The Ambassador acknowledged the government's unhappiness with
the Embassy statement, but asked Sarybai to put it in the context of
the keen international attention about the Zhovtis case even before
the verdict. Sarybai again assured that "all legal procedures were
proper and under the Prosecutor General's control" and that the court
will give the final decision. Returning to the OSCE, he recalled the
mutual cooperation between Kazakhstan and the United States and said,
"No cases should damage that relationship." Sarybai acknowledged
Zhovtis' prominence and then repeated, "Unfortunately, a human is
dead." He concluded, "If the investigation was improper, that will
be taken into account." The Ambassador thanked Sarybai for the frank
discussion, noting that there were not many other capitals where he
could have such a frank discussion. In an unusual gesture, Sarybai
walked the Ambassador to the elevator, rather than retreating to his
office, as is common practice.


9. (C) COMMENT: It is clear the public statement the Embassy posted
on its Web site on September 4 touched a raw nerve, specifically
because the statement mentioned the OSCE but made no specific linkage
to the Zhovtis case, a fact that the Foreign Ministry noted in its
own public statement. Sarybai, who is a perfectly rational
progressive, was clearly reflecting the views of the Big Boss and his
more old-guard advisers. Kazakhstan still has the opportunity to
recover some of its damaged prestige during Zhovtis' appeals process,
a point we made as clearly as possible. END COMMENT.


10. (U) BEGIN TEXT OF EMBASSY ASTATA STATEMENT:

[September 4, 2009] On September 3, internationally recognized human
rights advocate Yevgeniy Zhovtis was convicted by a trial court of
criminal negligence leading to grave consequences and sentenced to
four years in a penal colony.

In recent days, we have expressed our concerns about this case and
urged the Kazakhstani authorities to provide Mr. Zhovtis access to
fair legal proceedings, consistent with Kazakhstani law. We will
continue to make the same request during the appeals proce3ss.

We note that there will inevitably be intense international scrutiny
placed on how the appeals process will be conducted because of Mr.
Zhovtis' prominence in the international human rights community and
as Kazakhstan prepares to assume the Chairmanship of the Organization
for Security and Cooperation in Europe in 2010.

END TEXT.


11. (C) BEGIN TEXT OF NON-PAPER:

GUILTY VERDICT AND SENTENCING OF YEVGENIY ZHOVTIS

Because of the September 3 guilty verdict and sentencing of the
internationally respected human rights advocate, Yevgeniy Zhovtis,

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there is intense interest and deep concern at very high levels in
Washington -- including by Secretary of State Clinton, President
Obama's Special Assistant for Russia and Eurasia Michael Mcfaul,
Members of Congress like Chairman of the Senate Foreign Relations
Committee Senator John Kerry, and many other influential people, both
in the government and in the private sector.

We have heard the Government of Kazakhstan's view that international
human rights organizations are over-reacting to politicize this case,
because they are always looking for a reason to criticize Kazakhstan.
We cannot accept this view.

We have heard the Government of Kazakhstan's position that Zhovtis
was treated "like a normal citizen" -- i.e., that he committed a
crime and must pay the price like anyone else. Indeed, that is the
essence of Rule of Law. However, there appears to be reason to
suspect that Zhovtis was not treated like a normal citizen.

Details of the Zhovtis investigation and court case raise serious
questions. Although the early stages of the police investigation
were conducted normally and professionally, and although the family
of the victim declined to press charges against Zhovtis, there is
reason to believe that another element of the Government of
Kazakhstan intervened in an ill-considered attempt to silence
Zhovtis. An unusual number of significant procedural violations
occurred during the trail, as Zhovtis' lawyers enumerated at their
press conference, that will need to be considered carefully during
the legal appeals process.

How Kazakhstan handles the international criticism of the Zhovtis
verdict and the decisions it makes for "steps forward," will be a
strong indicator of its desire to play a responsible global role and,
inevitably, will be considered a preview of how Kazakhstan will
handle its 2010 OSCE chairmanship.

The United States wants Kazakhstan's chairmanship to be successful,
for the sake of Kazakhstan and, ultimately, for the sake of the OSCE
and for the ideals of cooperation and security in Europe.

Together, we have built a strong bilateral relationship and strategic
partnership. We do not want the Zhovtis case to have a lasting,
adverse impact on our relationship, on Kazakhstan's ability to serve
effectively as the Chairman-in-Office of the OSCE, or on other
initiatives we are in the midst of developing, like the Annual
Bilateral Consultations, and other new ideas in both the political
and security dimensions.

As you consider next steps for the way forward, I urge you to take
full advantage -- strictly within the limits of your law -- of the
possibility that the court appeals process could provide.

END TEXT.

HOAGLAND