VZCZCXRO5736
OO RUEHIK
DE RUEHTA #1898/01 2940904
ZNR UUUUU ZZH
O 210904Z OCT 09
FM AMEMBASSY ASTANA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 6670
INFO RUCNCIS/CIS COLLECTIVE 2056
RUCNCLS/ALL SOUTH AND CENTRAL ASIA COLLECTIVE
RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RUEHBJ/AMEMBASSY BEIJING 1427
RUEHKO/AMEMBASSY TOKYO 2127
RUEHUL/AMEMBASSY SEOUL 1070
RUCNDT/USMISSION USUN NEW YORK 2549
RUEHNO/USMISSION USNATO 2852
RUEAIIA/CIA WASHDC
RHEFAAA/DIA WASHDC
RHEHNSC/NSC WASHDC 1616
RUEKJCS/SECDEF WASHDC 1478
RUEKJCS/JOINT STAFF WASHDC
RHMFIUU/CDR USCENTCOM MACDILL AFB FL

UNCLAS SECTION 01 OF 03 ASTANA 001898 
 
SENSITIVE 
SIPDIS 
 
STATE FOR SCA/CEN, EUR/RPM, DRL 
 
E.O. 12958: N/A 
TAGS: PGOV PREL PHUM KDEM KZ
SUBJECT:  KAZAKHSTAN:  COURT UPHOLDS ZHOVTIS' CONVICTION 
 
REF: (A) ASTANA 1470 
 (B) ASTANA 1487 
 (C) ASTANA 1494 
 (D) ASTANA 1512 
 (E) ASTANA 1538 
 (F) ASTANA 1816 
 
ASTANA 00001898  001.2 OF 003 
 
 
¶1.  (U) Sensitive but unclassified.  Not for public Internet. 
 
¶2.  (SBU) SUMMARY:  On October 20, the Almaty Oblast Court upheld 
the conviction and four-year sentence of prominent human rights 
defender Yevgeniy Zhovtis on charges of vehicular manslaughter. 
Over 100 observers attended the hearing, including representatives 
of civil society, opposition political parties, local and 
international media, and the diplomatic community.  Civil society 
activists condemned the decision and referred to Zhovtis as a 
"political prisoner."  Zhovtis will be transferred within a week 
from the pre-trial detention in Taldy-Korgan to a minimum-security 
facility in Eastern Kazakhstan.  His defense team will request that 
a judicial panel review the case for procedural violations, although 
one of his lawyers expressed doubt that the panel will change the 
decision.  The Embassy will release a statement on the case at the 
opening of business October 22 (full text in paragraph 8).  END 
SUMMARY. 
 
APPEAL DENIED 
 
¶3.  (SBU)  On October 20, the Almaty Oblast Court upheld the 
conviction and four-year sentence of prominent human rights defender 
Yevgeniy Zhovtis on charges of vehicular manslaughter (ref A). 
Zhovtis was not present at the appeal.  His defense team had filed a 
petition for him to be present, but the court contended that his 
presence at the appeal hearing was not obligatory since the 
prosecution was not seeking a harsher sentence.  The hearing was 
attended by the victim's mother, who made an official statement that 
she had forgiven Zhovtis and presented a notarized letter to the 
effect.  During the hearing, the defense petitioned to dismiss the 
original verdict for trial irregularities, to order a new 
technical-expertsreview of the accident, and to have Zhovtis present 
at the hearing.  The defense also urged the court to reconsider 
Zhovtis' four-year sentence in light of the fact that the victim's 
mother forgave him.  The judge rejected most of the defense's 
motions, but did include the victim's mother's statement into the 
record.  Following a three-hour hearing, the judge ruled to leave 
unchanged the lower court's decision. 
 
HEARING DRAWS LARGE CROWD 
 
¶4.  (SBU) The appeal hearing drew over 100 observers, including 
leading civil rights activists, local and international media, and 
the head of the opposition party Azat and two of his deputies. 
Representatives of diplomatic missions of the United States (Almaty 
PAO and P/E LES), European Commission (EC), Germany, and France, 
including France's Ambassador-at-Large for Human Rights Francois 
Zimeray, were also present, as well as Human Rights Watch's deputy 
director for Europe and Central Asia Rachel Denber, who flew from 
New York to Kazakhstan specifically for the appeal.  The group of 
observers was too large to fit into the court room, and only about 
40 people, including representatives of foreign missions and 
international media, were able to observe the hearing.  Following 
the court's decision, civil society activists organized an impromptu 
press conference in front of the court house, condemning the court 
decision and calling Zhovtis "a political prisoner."  France's 
Ambassador Zimeray told BBC and Agence France Presse (AFP) that he 
was "very disappointed [with the decision] because we expected a 
more fair discussion from a country which has the ambition to chair 
the Organization for Security and Cooperation in Europe (OSCE), a 
prominent democracy and human rights organization."  Roza Akylbekova 
of Zhovtis' Human Rights Bureau recounted to the press how she and 
the victim's mother were stopped several times by road police while 
they were driving to the court, in what she believes was an attempt 
to prevent the victim's mother from testifying. 
 
WHAT NOW? 
 
 
ASTANA 00001898  002.2 OF 003 
 
 
¶5. (SBU) Vera Tkachenko, a member of Zhovtis' defense team, told us 
on October 21 that within a week, Zhovtis will be moved from the 
pre-trial detention center in Taldy-Korgan to minimum-security penal 
colony in Ust-Kamenogorsk, in Eastern Kazakhstan.  She told us that 
until recently, the only such minimum-security colony was in Aqmola 
oblast, near Astana, but that "the authorities quickly reclassified" 
an existing colony in Ust-Kamenogorsk, ostensibly to keep Zhovtis 
"away from undue attention." 
 
¶6. (SBU) Tkachenko explained that under Kazakhstani legislation, the 
oblast-level courts are the courts of final instance for lesser 
crimes like Zhovtis', and that these cases cannot be appealed to the 
Supreme Court.  The law does allow, however, for the defense to 
request a judicial panel review (obzornaya komissiya) to look for 
any procedural violations in the case.  Tkachenko said Zhovtis' 
defense team will file the request for the review very soon.  She 
noted, however, that the panel can only look at procedural 
violations and cannot reassess the merits of the case, and she 
expressed doubt that the panel will overturn the court's decision. 
Theoretically, the panel has one month to decide whether to grant 
the defendant's request for a review.  However, the one-month term 
is counted from the day the court receives all the necessary 
documents, so the decision could be dragged out while the panel 
awaits the paperwork.  Once the decision for review is granted, the 
panel has another month to review the case and issue its decision. 
 
 
CIVIL SOCIETY "SHOCKED" 
 
¶7. (SBU) Several civil society activists told us that they were 
"flabbergasted" and "shocked" by the court decision.  Freedom 
House's country director Iva Dobichina said she was "deeply 
disappointed Kazakhstan would take such a step on the eve of its 
OSCE chairmanship."  She urged the international community "not to 
stay silent, to make sure this case does not go away."  Vera 
Tkachenko said the court case "was an eloquent example of what is 
going on in Kazakhstan."  Human Rights Watch said the verdict was "a 
terrible miscarriage of justice."  Sergei Duvanov, an independent 
journalist, told us he was "disappointed with the West, particularly 
OSCE, for the support of the Nazarbayev regime."  He also said that 
Zhovtis' supporters will not mount a new wave of protest actions 
(ref F), because "they obviously proved to be ineffective." 
 
EMBASSY'S STATEMENT 
 
¶8. (SBU) The Embassy plans to release the following statement on the 
case at the opening of business October 22: 
 
BEGIN STATEMENT TEXT: 
 
The United States Embassy in Astana notes with concern that on 
October 20 the Almaty Oblast Court in the city of Taldy-Qorghan 
upheld the vehicular manslaughter conviction and sentencing to four 
years of imprisonment of Yevgeniy Zhovtis, head of the 
non-governmental organization, Human Rights Bureau.  After the 
original trial in September, there were credible allegations of 
procedural flaws in that trial, and the appeal hearing failed to 
address those concerns. 
 
We urge the government of Kazakhstan to pursue the upcoming 
procedural review of the case fully in accord 
with Kazakhstani law and its commitment to international judicial 
standards. 
 
END TEXT 
 
¶8. (SBU) COMMENT:  The court's decision to uphold Zhovtis' 
conviction shocked many in the civil-society and diplomatic 
communities.  As late as last week, several civil-society activists 
told us they were receiving encouraging signs from the authorities 
that Zhovtis' sentence would be amended and/or suspended.  Many of 
the same people were at a loss today what to do next.  On October 
20, the Ambassador privately told Deputy Foreign Minister Kairat 
Umarov in no uncertain terms that this court decision is a major 
stain on Kazakhstan's record and that it will have wide 
 
ASTANA 00001898  003.2 OF 003 
 
 
reverberations in Washington, Brussels, and Vienna (septel).  END 
COMMENT. 
 
HOAGLAND