Kazakhstan: Important procedural violations during the first four hearings in the trial against Max Bokayev and Talgat Ayan

20/10/2016
Urgent Appeal

New information
KAZ 001 / 1016/ OBS 085.1
Judicial harassment/
Arbitrary detention/deterioration of health
Kazakhstan
October 19, 2016

The Observatory for the Protection of Human Rights Defenders, a partnership of the World Organisation Against Torture (OMCT) and FIDH, requests your urgent intervention in the following situation in Kazakhstan.

New information:

The Observatory has been informed by reliable sources about the developments that occurred during the first, second, third and fourth court hearings in the trial against Mr. Max Bokayev [1], head of the NGO “Arlan” [2] and a human rights defender working for the protection of the environment, freedom of expression and the fight against torture, and Mr. Talgat Ayan, a lawyer and activist from Atyrau, Western Kazakhstan. Both human rights defenders played a crucial role in organising peaceful protests that took place last April and early May 2016 against the amendments to the Land Code of Kazakhstan [3]. They are facing charges for “institution of social discord” (Article 174 of the Criminal Code of Kazakhstan (CC), “dissemination of knowingly false information” (Article 274 of the CC) and “violation of the procedure of organisation and holding of meetings, rallies, pickets, street processions and demonstrations” (Article 400 of the CC) and face imprisonment for a term of up to ten years. The Observatory considers the charges to be trumped-up and used as a tool to retaliate both activists for their legitimate civic activities and human rights work.

According to the information received, the first hearing in the trial against Messrs. Bokayev and Ayan (see background information) took place in Atyrau’s City Court No. 2 at 10.30 am on October 12, 2016, while the second took place on the following day, and the third and fourth on October 17 and 18 respectively. During these first hearings, important procedural violations were registered that amount to breaches of internationally-recognised fair trial standards.

The court hearings were held in a rather small hall, which could not contain the high number of activists and representatives of civil society who intended to observe the hearing in view of the publicity of the case. Those who were not able to be present in the Court room were accommodated in a separate room to follow the hearing through a screen, but the quality of both translation and microphones was not good, making it very difficult for them to understand what was happening.

According to the information received, during the first two hearings, most of the motions filed by the lawyers were dismissed by the judge Gulnara Dauleshova. Specifically, Mr. Ayan’s lawyer filed a motion to recuse the judge on the basis that she had committed grave procedural violations, particularly regarding the falsification of the date on which the judge had set the date and time for the first hearing.

In that motion, the defence lawyers demonstrated that as the pre-trial detention of Messrs. Bokayev and Ayan came to an end on September 30, 2016, they filed an application at around 10am on October 3, 2016 requesting that the case against their clients be dismissed (for what a preliminary hearing needed to be carried out).

The lawyers went on demonstrating that the electronic Court system shows that the decision of the judge to set the date and time of the first hearing was actually issued on October 3 at around 8pm, but that it was subsequently changed to September 30, 2016, in an attempt to avoid dealing with the application of the defence lawyers to dismiss the whole case.

The defence lawyers concluded that this falsification from the Court was undertaken with the sole objective of avoiding to release the defendants from pre-trial detention.

In their demonstration, the lawyers also stated that even if the Court had actually scheduled the first hearing on September 30, 2016, it would have been humanly impossible for the judge and justice operators within the Atyrau’s City Court to study the 72 volumes of hard-copy materials related to the case, which were received in the Court only the day before, i.e. on September 29.

In spite of the demonstration and details provided by the defence lawyers, the judge decided to dismiss their motion and arguments. The recusation request was eventually rejected by the Court.

On October 13, the lawyers filed another motion to obtain more information about the experts whose work was included in materials brought by the prosecution, and on the methodology they had used to prepare their findings. The lawyers noted in particular that they had crosschecked the background of the experts of the Forensic Center of the Republic of Kazakhstan whose names appeared in the above-mentioned materials, and had been informed that one of the experts had been dismissed by the Center while the other had never been a staff member of the Center. This motion was also dismissed by the judge despite the arguments of the defence pointing out that this information was essential in order to prepare the right questions during their interrogation.

During the same hearing, the lawyers request to change the preventive measure of restraint against the accused, replacing pre-trial detention with house arrest or bail, was likewise rejected by the Court. This last motion was filed based on the health condition of Mr. Max Bokayev, who suffers from hepatitis C, and whose health condition deteriorated in detention. The judge dismissed the motion arguing that in the course of the previous hearing, the defender had said he felt good.

The subsequent hearings took place on October 17 and 18, 2016, and the court decided to proceed with the examination of the witnesses, starting with those presented by the prosecutors followed by those presented by the defendants. The witnesses presented by the prosecutors were allowed to testify via videoconference from a Court in Astana, despite motions filed by defence lawyers requesting that witnesses should be brought to Atyrau. Both defendants, Messrs. Bokayev and Ayan, reported that due to the bad quality of the sound, they could not hear well what the witnesses were stating, thus affecting their right to defence.

On October 18, Mr. Bokayev requested a break during the hearing, on the grounds that he was not feeling well, but the judge dismissed his request arguing that he was “simulating a faintness”.

The Observatory has however managed to confirm that Messrs. Bokayev and Ayan had been brought back to the detention centre very late on the day before the October-18 hearing, and that as they had arrived after the dinnertime, they had not been served any food for dinner.

The Observatory expresses its concern regarding the violations to fair trial standards reported throughout these four hearings, which are evidence of the ongoing repression, intimidation, and judicial harassment of human rights defenders in Kazakhstan, in an attempt to hinder their legitimate human rights activities.

The Observatory strongly condemns the ongoing judicial harassment politically-motivated trial against Messrs. Max Bokayev and Talgat Ayan, and calls on the Kazakhstani authorities to respect due process and fair trial standards, as well as to immediately and unconditionally release and drop all charges against them.

The Observatory is also concerned about the recognition of the politically-motivated character of this trial by Judge Dauleshova herself, who issued a notice on October 10, 2016, urging the police to provide her with protection within the framework of this "political process" since it has caused “public outcry”.

The Observatory more generally condemns the ongoing attempts by the Kazakhstani authorities to curtail the rights to freedom of association, assembly, and expression in the country.

Background Information:

Between April and May 2016, several protests were held in Kazakhstan, gathering hundreds of citizens calling for the abolition of amendments to the Land Code that were introduced in November 2015 [4]. During this protests many were detained and sentenced to administrative detention for “preparation of illegal rallies” or “hooliganism” or “inciting social discord”.

The Government launched a smear campaign via mass media platforms accusing the protesters of planning violent attacks and blaming a Kazakhstani businessman, for leading the protest movement in order to plot a coup to destabilise the country.

In this context, the judicial harassment and arbitrary detention of Messrs. Bokayev and Ayan has been ongoing since May 17, 2016, when they were arrested in Atyrau in retaliation for their critical statements posted on Facebook and for making public their intention to participate and encouraging others to take part in the 21 May protests. On the same day, an administrative court sentenced them to 15 days of administrative detention for “organising and holding peaceful assemblies” (Article 488 of the Administrative Offences Code) in violation of the laws of the Republic of Kazakhstan. This happened though the two had sent requests for authorisation to hold demonstrations on May 21 to the relevant local authorities in Atyrau, in accordance with domestic laws.

On May 20, 2016, the officers of the Division 9 of the National Security Committee in Atyrau, following a court order, raided the house of nine human rights defenders including that of Mr. Bokayev’s mother and confiscated documents, computers, telephones, USB sticks and other data storage elements. During the search, Mr. Bokayev’s mother was injured and her front door was slammed in.

On May 31, 2016, one day before the end date of their administrative detention, the National Security Committee issued an order charging Messrs. Max Bokayev and Talgat Ayan with the offenses of “preparation of a crime”, and “propaganda or public calls for seizure of power or retention of power or violent change of the constitutional order” under Articles 24.1 and179.3 of the criminal code. On July 21 these charges were replaced with the three charges mentioned above.

On June 3, 2016, the investigation judge of Atyrau Court No. 2 remanded Messrs. Max Bokayev and Talgat Ayan for two months in pre-trial detention. Mr. Bokayev’s request for house arrest due to his critical health condition given that Mr. Bokayev suffers from a chronic hepatitis C and needs constant medical care was rejected. On August 27, 2016, the judge decided to extend the pre-trial detention. The prosecutor argued that “Max Bokayev has a lot of friends inside and outside of Kazakhstan and so there’s a fear that he will leave the country”.

Actions requested:

Please write to the authorities of Kazakhstan asking them to:

i. Immediately and unconditionally drop all charges against Messrs. Bokayev and Ayan and put an end to all acts of judicial harassment against them as well as against all human rights defenders in Kazakhstan;

ii. Guarantee in all circumstances the physical and psychological integrity of Messrs. Bokayev and Ayan, as well as of all human rights defenders in Kazakhstan;

iii. Repeal legal provisions limiting freedom of peaceful assembly beyond the narrow restrictions permitted under international human rights law, particularly with the aim of ensuring that this right is no longer subjected to the permission of government authorities and merely to prior notification;

iv. Repeal legal provisions limiting freedom of expression beyond the narrow restrictions permitted under Article 19 of the ICCPR, includingthe vague and broad definition of the offence of incitement to “social, national, clan, class or religious discord” in Article 174 of the Criminal Code;

v. Comply with all the provisions of the United Nations Declaration on Human Rights Defenders;

vi. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments ratified by Kazakhstan.

Addresses:

· Mr. Nursultan NAZARBAEV, President of the Republic of Kazakhstan. Fax: + 7 3172 32 61 82, 007 / 3172 / 32 40 89
· Mr. Kalmukhanbet Kassymov, Minister of Internal Affairs. Email: Kense@mvd.kz
· Mr. Zhakip Assanov, Prosecutor General. Fax: +7 7172 506 402
· Mr. Askar Shakirov, Human Rights Commissioner. Fax: +7 7172 74 05 48
· Ambassador Ms. Zhanar Aitzhanova, Permanent Representative of the Republic of Kazakhstan to the UN Office and other International organizations in Geneva. Fax: +41 (0) 22 788 66 02. Email: mission@kazakhstan-geneva.ch
· Ambassador Mr. Almaz KHAMZAYEV, Embassy of Kazakhstan in Brussels. Email: brussels@mfa.kz.
· Permanent Delegation of the Republic of Kazakstan to the OSCE in Vienna. Fax: +43 1 890 80 08 20. Email: kzosce@kazakhstan.at
Please also write to the diplomatic mission or embassy of Kazakhstan in your respective country.

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    Geneva-Paris, October 19, 2016

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    The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by the World Organisation Against Torture (OMCT) and FIDH. The objective of this programme is to intervene to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.

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