KAZAKHSTAN: ZHOVTIS CASE -- LEGAL OPTIONS

C O N F I D E N T I A L SECTION 01 OF 02 ASTANA 001978 SIPDIS STATE FOR SCA/CEN, DRL E.O. 12958: DECL: 09/29/2019 TAGS: PGOV PREL PHUM SOCI KDEM KZ SUBJECT: KAZAKHSTAN: ZHOVTIS CASE -- LEGAL OPTIONS REF: ASTANA 1958 Classified By: Ambassador Richard E. Hoagland: 1.4 (b),(d) ¶1. (SBU) SUMMARY: This cable summarizes the legal options available to Yevgeniy Zhovtis. Zhovtis' next legal step is to request a review by a judicial panel, which could order a new trial or dismiss the case entirely if it finds procedural irregularities in the case. The Supreme Court cannot review Zhovtis' case under the current legislation, but a draft law pending in the parliament could make this possible. Zhovtis could seek a pardon from the Presidential Pardon Commission, but those close to him say that he will not, because he would have to admit his guilt. His defense team is preparing to file a case with the UN Human Rights Council, the first such case for Kazakhstan. Zhovtis' lawyers and several independent attorneys told us criminal prosecution of Zhovtis was not inevitable and pointed out several instances when criminal charges could have been avoided or dismissed. END SUMMARY. JUDICIAL REVIEW PANEL ¶2. (SBU) The judicial review panel (nadzornaya kollegiya) is the next legal step available to Zhovtis. Under Kazakhstani legislation, the defendant can request a review of a judicial decision from a panel of judges from the court that issued the decision. In Zhovtis' case, the panel of judges would be from the same appellate court that upheld his conviction. The Criminal Procedure Code vests the judicial panel with broad powers -- if the panel finds procedural irregularities in the case, it could amend parts of the decisions of the lower courts, overturn the verdict and request a new trial, or even overturn the verdict and dismiss the case. However, Zhovtis' lawyers and other independent attorneys have told us that the panels rarely overturn the decisions of lower courts. The Zhovtis defense team expects to file the motion for a judicial review within the next week. The review can take up to three months. SUPREME COURT ¶3. (SBU) Under current legislation, the Supreme Court cannot review Zhovtis' case. Article 458, part 2 of the Criminal Procedure Code specifically states that the Supreme Court does not review decisions in cases of crimes of lesser gravity, like the one for which Zhovtis was convicted. The law does give the Supreme Court purview to review judicial practices in the country and offer general guidance on the application of legislation. Based on this provision, the Supreme Court could use Zhovtis' case to offer guidance for future court decisions in similar cases, but it currently cannot pronounce judgment on his case specifically. ¶4. (C) Amendments to the Criminal Procedure Code pending in parliament would allow the Supreme Court to review cases of lesser gravity. The amendments passed both the Mazhilis (lower house) and Senate this week, and the draft legislation should be sent for the President's signature shortly. One parliamentarian told us he expects the law to be signed in early 2010. Since the law will most likely enter into effect after Zhovtis' team applies for the judicial panel review, he would technically be ineligible to apply to the Supreme Court, because all the instances available under the current rules would have considered his case. However, Zhovtis' defense team plans to circumvent this technicality by filing the motion for judicial review on their own behalf as lawyers, not on behalf of Zhovtis. This effort ostensibly will allow Zhovtis to petition the Supreme Court on his own. PARDON OR AMNESTY ¶5. (C) Zhovtis also can seek a pardon from President Nazarbayev -- any convict can appeal to the Presidential Pardon Commission if they admit their guilt, repent, and ask for a pardon. In fact, it seems the Kazakhstani leadership believes this option could extricate it from this situation. Deputy Foreign Minister Kairat Umarov told the Ambassador on November 2 that if Zhovtis would admit his guilt, "his case could be revisited and resolved more quickly" (reftel). However, as the Ambassador told Umarov, Zhovtis asserts his innocence, because he was neither drunk nor driving negligently. As his public defender Vera Tkachenko told us, he will not apply for -- or accept -- a pardon, because it would require him to admit his legal guilt. ASTANA 00001978 002 OF 002 ¶6. (SBU) As for a general amnesty, Tkachenko told us Zhovtis would accept one if offered. Kazakhstan periodically offers amnesty to people convicted of crimes of lesser gravity. Parliamentarian Gani Kasymov had earlier floated an idea of offering an amnesty on the eve of Kazakhstan's OSCE Chairmanship, but in his most recent public statement, Kasymov proposed that the amnesty be offered in 2010. Tkachenko confirmed preparation of a draft law on amnesty. However, according to her Mazhilis sources, the law's passage this year appears unlikely. She added that if a "political decision is made (i.e. President Nazarbayev decides to offer the amnesty this year), then the parliament can move very fast." UN HUMAN RIGHTS COUNCIL ¶7. (SBU) In addition to the motion for a judicial review panel, Zhovtis' defense team is preparing an appeal to the UN Human Rights Council. The International Covenant on Civic and Political Rights (ICCPR),which came into force in Kazakhstan in September, allows Kazakhstani citizens to apply to the Human Rights Council after they exhaust all domestic legal avenues. Ironically, Zhovtis was one of the strongest advocates for the adoption of the ICCPR, and his NGO Human Rights Bureau received an international grant to assist people with filing their petitions. If Zhovtis' defense team files the petition, as they plan, Zhovtis will become the first Kazakhstani citizen to avail himself of the process. The UN Human Rights Council's decisions are recommendations and are not legally enforceable, but Zhovtis believes the moral weight of the Council's decision would force the Kazakhstani authorities to re-open the case. However, this solution would not be quick -- according to ODIHR's Dmitry Nurumov, the Human Rights Council could take one to two years to consider the case. WAS CRIMINAL PROSECUTION INEVITABLE? ¶8. (SBU) Kazakhstani authorities have said in their public and private statements that any death, even accidental, is a criminal offense under Kazakhstani legislation. Therefore, they argue, the prosecutor had no choice but to prosecute Zhovtis. Zhovtis' defense team rejects the inevitability of criminal prosecution. Other independent lawyers point to several instances in the case where criminal charges could have been avoided or dropped. Because the police, under Kazakhstani law, must begin a criminal investigation into any death, the criminal investigation into Zhovtis' accident was in line with standard practice. However, the police are not required to file criminal charges unless they find evidence of negligence. In Zhovtis' case, if the police expert assessment of the accident had found that Zhovtis was not at fault for the death -- he was abiding by the rules of the road, was not drunk, and could not have avoided the accident -- the case could have been ruled an accidental death and closed. ¶9. (SBU) In addition, the investigator had the option to close the case when he received a formal letter from the victim's mother, saying that she forgave Zhovtis and that he paid compensation to the family. Kazakhstani legislation provides for police dismissal of cases, without an admission of guilt, when the parties reconcile. Although it is not specifically required by the law, local practice is for one party to admit guilt before the police dismiss the case, which could explain why they proceeded with criminal charges against Zhovtis. The prosecutor also has the right to intervene in the investigation at any point and dismiss the case or choose not to take it to court if he/she believes no crime was committed. ¶10. (C) COMMENT: It is becoming increasingly clear that the Kazakhstani authorities are looking for a way to exit this disastrous situation. At this juncture, they have several options -- the judicial panel amends or overturns the verdict, the Supreme Court considers the case in the future and does the same, or Zhovtis benefits from a general amnesty. A pardon is off the table -- Zhovtis will not apply for one, because he would have to admit his legal guilt. END COMMENT. HOAGLAND