KAZAKHSTAN: ZHOVTIS' LEAD LAWYER COMMENTS ON THE

C O N F I D E N T I A L SECTION 01 OF 03 ASTANA 001538

SIPDIS

STATE FOR SCA/CEN, EUR/RPM, DRL

E.O. 12958: DECL: 09/18/2019
TAGS: PGOV PREL PHUM KDEM OSCE KZ
SUBJECT: KAZAKHSTAN: ZHOVTIS' LEAD LAWYER COMMENTS ON THE
CASE

REF: A. ASTANA 1512

B. ASTANA 1494

C. ASTANA 1487

D. ASTANA 1470

E. ASTANA 1429

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


1. (C) SUMMARY: Convicted human rights advocate Evgeniy
Zhovtis' lead lawyer, Vitaliy Voronov, predicts Zhovtis will
not be acquitted at his appeal hearing but that his sentence
might be reduced. Voronov said he had been told that
"someone high up in the government" had triggered the trial
by telling President Nazarbayev that Zhovtis had been drunk
when the auto accident happened. Kazakhstan remains
hypersensitive to any criticism about the Zhovtis case. To
benefit Zhovtis, we recommend that any public statements and
private conversations with Kazakhstani government officials
hue strictly to advocating a fair and transparent appeals
case that fully respects the rule of law. END SUMMARY.


2. (SBU) On September 15, the Ambassador met in Almaty with
Vitaliy Voronov (strictly protect throughout),the lead
lawyer for Evgeniy Zhovtis's legal team and President of the
Almaty Legal Corporation. Zhovtis is the internationally
respected human rights advocate and director of Kazakhstan's
Human Rights Bureau, as well as one of the principal drafters
of Kazakhstan's recently released National Human Rights
Action Plan 2009-2012. He was convicted on September 3 of
the Kazakhstani equivalent of vehicular manslaughter
(reftels). Voronov said he had very recently visited Zhovtis
in prison where he is in a large cell with one cellmate.
Zhovtis is in good spirits and regularly receives his
medications and newspapers. He will remain in detention
until his appeal, which will probably be heard during the
third week of October.


3. (SBU) Voronov thanked the Ambassador for the statement
the U.S. Embassy released on September 4 and characterized it
as "balanced and correct." He also thanked the Ambassador
for working quietly with high-level Kazakhstani officials to
express concerns about the way in which the Bakanas court and
the local prosecutor had handled the case. Voronov cautioned
that it would be inadvisable to "politicize" the case at this
time, although it would be appropriate for all interested
parties who want to be helpful to Zhovtis and his supporters
to continue to express hope that the procedures and ruling of
the appeals court will be fair.

SOMETHING HAPPENED


4. (C) As they discussed the case in detail, Voronov told
the Ambassador that initially, immediately after the
accident, the investigation had been conducted fairly and
professionally. Zhovtis had provided the investigator with a
copy of a written statement from the victim's family that
acknowledged Zhovtis had helped them "with financial and
moral support" and that requested no charges be brought
against him. Subsequently, however, Voronov said, the
prosecutor "cheated" Zhovtis by not including the statement
in the documentary evidence for the case. Voronov added that
Zhovtis, too, had made a "stupid mistake" by not insisting on
a receipt for the document. In any case, likely under
pressure from the prosecutor, the investigator unexpectedly
changed Zhovtis' status from "witness" to "suspect" without
notifying him. Further, during the trial, the prosecutor
denied that he had ever received a copy of the document from
the victim's family requesting that no charges be filed
against Zhovtis.

ZHOVTIS HAS MANY HIGH-LEVEL FRIENDS


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5. (SBU) Voronov made clear that Zhovtis is widely respected
by a number of high government officials. Voronov told the
Ambassador that in recent days he had spoken about Zhovtis
with State Secretary-Foreign Minister Kanat Saudabayev and
several other senior Foreign Ministry officials, all of whom
openly expressed respect for Zhovtis.


6. (SBU) When shown the latest "News Bulletin" (Special
Issue No. 25, 09/14/09),in which Kazakhstan emphasizes the
rule of law, from the Embassy of Kazakhstan in Washington,
Voronov commented that Ambassador Idrissov, too, is close
friends with Zhovtis. He said that Zhovtis is "a very
correct person, who has never had a conflict with the
President." Asserting Zhovtis is practically the conscience
of Kazakhstan and a human symbol of Kazakhstan's
democratization, Voronov claimed that no one could wish to
silence him, "not Nazarbayev, and not anyone else in the
government." Voronov said that, in his opinion, the court
case occurred because Zhovtis refused to plead guilty, which
would have meant the case would never have gone to court.
"But according to the law, he is innocent," Voronov declared
and, therefore, Zhovtis was taking a principled stand to
prove that he had acted appropriately after the accident. If
he had pled guilty, Zhovtis feels he would have lost public
credibility and would be unable to continue his work as a
human rights' defender.

SO WHO DUNNIT?


7. (C) If it's true that "no one wanted to silence Zhovtis,"
the Ambassador asked Voronov, what, in his view, had really
happened to cause the government to file the case that
eventually led to Zhovtis' conviction and a harsh, if legal,
sentence. Backing off from his earlier statement that no
one in the government could have wished to silence Zhovtis,
Voronov confided he had met with Presidential Domestic Policy
Adviser Yermukhamet Yertysbayev who was outraged by the
Zhovtis case. According to Voronov, Yertysbayev said that
apparently someone told the president, when Nazarbayev
enquired about the case, that Zhovtis had been drunk when the
fatal accident happened. Nazarbayev reportedly responded,
"OK, in that case, follow the law." When the Ambassador
asked who would have done this, Voronov replied it would have
had to have been someone at the "top" of either the Committee
for National Security (KNB) or the Presidential
Administration -- i.e., KNB Chairman Shabdarbayev or Head of
the Presidential Administration Musin. Voronov added, "I am
inclined to believe it was most likely the KNB. Maybe it was
the Chairman acting on his own."

VORONOV SPECULATES ON WHAT TO EXPECT


8. (C) "There is a significant danger that the appeals court
ruling will not be fair, since it is now under pressure,"
asserted Voronov. "The appeals court will not acquit him.
'They' achieved what 'they' wanted." Voronov said he expects
Zhovtis will be given a reduced sentence of up to two years,
which he might be allowed to serve under the condition of
"deprivation of freedom/limitation of movement." During this
period, Zhovtis would be able to continue his human rights
work, although he would not be allowed to participate in
"public actions." (NOTE: This is somewhat like house arrest
in the United States, including the requirement to wear an
electronic monitor. However, the term "house arrest" in
Kazakhstan means a police officer is required to guard the
residence door. END NOTE.) Voronov noted that the
provision of deprivation of freedom/limitation of movement
exists in Kazahstani law but has never before been used.
Under a sentence of deprivation of movement, Zhovtis might
not be able to travel internationally and would need to check
in with authorities, possibly as often as once a week.
Voronov then speculated further that -- because of domestic

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and international outrage -- the government might include
Zhovtis in a possible Independence Day Amnesty in December.


9. (SBU) If, as Voronov expects, the appeals court upholds
the first court's verdict, even with a suspended sentence,
Zhovtis plans to appeal to the Supreme Court of Kazakhstan,
and possibly even to the United Nations Council on Human
Rights (UNCHR). Voronov commented, "Zhovtis' case could be
the first case in Kazakhstan to reach the UNCHR since
Kazakhstan ratified the protocol in November 2008."


10. (SBU) Voronov said the Zhovtis case "unmasks" Kazakhstan
and demonstrates "the lack of rule of law and democracy." He
noted that Zhovtis had previously, in the course of his work,
heard many stories about problems in the legal system, but
now he has personal experience. Zhovtis will not be
satisfied with a reduced sentence, even one as "relatively"
mild as deprivation of freedom/limitation of movement, or
even an amnesty, because he believes he is innocent according
to the law, and he will maintain that principled stand.

"THAT WOULD BE SEEN AS A PROVOCATION"


10. (C) On September 11, during a meeting on other issues,
the Ambassador informed Deputy Foreign Minister Kairat Umarov
that the Open Society Institute planned to send prominent
U.S. lawyer Scott Horton to Kazakhstan to consult with
Zhovtis' legal team. The Ambassador emphasized that this was
a private-sector NGO initiative and not in any way sponsored
by the U.S. government. He added, "I want to make clear
there are no official fingerprints on this," and reiterated
the private-sector NGO nature of this initiative. Umarov
replied that the Horton visit would be counter-productive and
viewed by some as "a provocation."


12. (C) COMMENT: Voronov's version of why the Zhovtis case
went to trial might explain Kazakhstan's hypersensitive
reaction to international pressure on this issue, a reaction
that sharply emphasizes that no one is above the law. If
indeed Nazarbayev actually said, "OK ... follow the law," all
subsequent talking points would flow from Number One's rather
off-hand comment. More interesting to know would be, if in
fact it happened as Yertysbayev told Voronov, what
Shabdarbayev or Musin had in mind. Silence a human rights
critic during Kazakhstan's OSCE chairmanship? Damage
Kazakhstan in the eyes of the West? Both are reportedly
hard-core, old-guard, and pro-Moscow. To benefit Zhovtis, we
recommend that any public statements and private
conversations with Kazakhstani government officials hue
strictly to advocating a fair and transparent appeals case
that fully respects the rule of law. END COMMENT.
HOAGLAND