Обзорный доклад о закрытом судебном процессе в Акмолинском военном гарнизоне

Американская НПО Eurasia Democracy Initiative (Нью-Йорк) подготовила Обзорный доклад о состоявшемся в текущем году закрытом судебном процессе в Акмолинском военном гарнизоне над группой лиц, в составе которой фигурировали отставные и действующие сотрудники КНБ РК. Доклад направлен конгрессменам США, в Женевское отделение ООН, в Хельсинкскую комиссию по ОБСЕ США. Нынешнему руководителю назарбаевской охранки г-ну Шабдарбаеву не стоит льстить себя надеждой, что детали и процессуальные нарушения этого судилища не привлекут внимание в мире.

INTRODUCTION

Ever since gaining its independence in 1991, Kazakhstan’s internal and external policies have been subordinated to the will of its president and former communist boss Nursultan Nazarbayev. President Nazarbayev has run his country with a tight fist, dominating all three branchesof power andcontrolling virtually all areas of life of its citizens, including Kazakhstan’s vast oil and gas sector. The indictment brought by the U.S. Southern District Prosecutor’s Office in 2004, resulting in the largest Foreign Corrupt Practices Act (FCPA) in the U.S. history, identified President Nazarbayev as a recipient of multi-million dollar bribes from various corrupt oil deals. Court proceedings on the case, christened “Kazakhgate” by the media, are underway.

The few notable attempts to contest power made by the opposition in recent years have been crushed with one decisive blow after another, in a climate where “opposition leaders have been killed or died mysteriously.” One such incident involved an outspoken critic of President Nazarbayev and leader of an opposition party, former chairman of Kazakhstan’s National Security Council and Ambassador to Russia, Altynbek Sarsenbaev, who, in February 2006, was found shot dead along with his driver and his bodyguard. A group of officers from an elite unit of the National Security Committee and the chief of staff of the speaker of Kazakhstan’s Senate subsequently confessed to the crime. To date, the name of the person who ordered Sarsenbayev’s murder has not been made known.

The latest round of politically-motivated purges came in May 2007, when, following the decision by Kazakhstan’s Ambassador to Austria and OSCE Rakhat Aliyev to declare his open opposition to Kazakhstan’s President (and his father-in-law) and seek the presidency,Kazakhstani prosecutors brought criminal charges against the diplomat (and several of his colleagues), dismissing him from his post and filing an extradition request with the Austrian government. The latter refused to extradite Aliyev, convinced that he would “not receive a fair trial” in Kazakhstan, formally calling “into question the independence and honesty of the country’s legal system.”

The subsequent trial, which began in November 2007, handed down its verdict on January 15, sentencing Rakhat Aliyev, Alnur Musayev, former National Security Committee (KNB) chief, to 20 and 15 years respectively (both in absentia) and 22 other defendants to lengthy prison terms on various charges, based on spurious evidence and driven by political motivations, as international observers, including Human Rights Watch, have concluded.

The closed military tribunal, which came a week after the verdict, brought new equally sinister and spurious charges against Aliyev, Musayev, and 14 others (Aliyev, Musayev and 3 others were tried in absentia). Leading human rights watchdogs such as Amnesty International decried the defendants’ “arbitrary detention by NSS officers” and their being held “incommunicado in pre-charge and pre-trial detention facilities,” dismissing the charges since the defendants were “tortured or otherwise ill-treated with the aim of extracting ‘confessions’.”

The official indictment was never made public; the tribunal, which was completely closed to observers and at which the defendants were not allowed to choose their own lawyers, concluded in more guilty verdicts, adding 20 years in jail time to Aliyev’s and Musayev’s previous sentences. Thus, in a truly Kafkaesque display of justice, the defendants did not have a chance to defend themselves, while the prosecutor chose not to release materials of the investigation nor indeed the indictment itself, preferring to “inform” the public about the case in a hastily convened press-conference.

On July 8, one of the suspects in the case, KNB General Zhomart Mazhrenov, was found hanged in his cell at the KNB pre-detention facility, following several weeks of detention there. To date, the circumstances of Mazhrenov’s death remain murky. Many observers have pointed out that it may have been in the interest of the government to silence Mazhrenov as he was the first KNB security official who arrived at the scene of Altynbek Sarsenbayev’s murder on February 13, 2006.

Finally, on September 22, a group of 4 armed and masked men staged an unsuccessful attempt to kidnap Alnur Musayev and his translator in Vienna, wounding the former in the process. This incident follows a previous kidnapping attempt, made on July 17. According to the Austrian authorities who have recently apprehended the suspect in that case, the former is someone “from the region.” According to local police sources, this was the third such kidnapping attempt this year. The local police apprehended three of the attackers shortly after the incident, identifying them as former Eastern Germany’s Stasi agents who may have been hired by Kazakhstani government representatives. The investigation of the incident is ongoing.

Since declaring their opposition to President Nazarbayev, Rakhat Aliyev and Alnur Musayev have made allegations that show Nazarbayev as the virtual godfather of a crime syndicate. Among the more sinister charges is the attempt by Kazakhstan to sell weapons and uranium to terror-sponsoring regimes. On July 23, 2008, The Wall Street Journal came out with an explosive investigative story which alleged that President Nazarbayev’s proxies had hired "well-connected Washington private security consultants [Global Options Management] to gather information on a U.S. bribery probe involving [the President], ‘bringing the family’ confidential U.S. phone records and customs data.”The same paper reported on October 10 that the principals of Global Options Management are being investigated for money laundering and other possible violations by the U.S. Justice Department and Manhattan District Attorney.Recently, Aliyev has publicly expressed his readiness to “testify and give evidence against Nazarbayev in the Kazakhgate investigation.”

The fact of these shocking allegations casts the suspicious death of General Mazhrenov, the attempts to kidnap Musayev and the reported 10 million-dollar reward President Nazarbayev has offered for Aliyev’s head as President Nazarbayev’s personal vendetta and an attempt to prevent further sinister discoveries about his past and present dealings.

Without taking a position as to the legal basis for the charges brought by the Kazakhstani government in either trial, and based on the evidence set forth below, we have concluded that the secretive nature of the proceedings and the treatment of several convicted former Kazakhstani diplomats –among them Minister-Counselor of Kazakhstani Mission to OSCE Vyacheslav Denissenko—who were denied legal representation during the trial and subsequently alleged to have given self-incriminating confessions under duress, constitute a grave violation of international standards of due process and Kazakhstan’s international commitments. Furthermore, considering that arrests began shortly after the main defendant, Rakhat Aliyev, publicly declared his opposition to President Nazarbayev, we believe that this latest round of persecutions is politically-motivated and fits the pattern of Kazakhstani government’s dealing with voices of dissent in the past. The clearly political nature of the alleged charge of the “attempt to forcibly seize power” places this group into the category of political prisoners.

STATEMENT OF FACTS

Background

Numerous reports by the OSCE, the U.S. State Department and leading human rights watchdogs indicatethat Kazakhstan is not a country governed in accordance with respect for the rule of law. President controls all three branches of power, including, significantly, the judiciary: Kazakhstan’s courts are not independent from significant government influence, neither are they impartial, especially in politically sensitive cases.The government exercises unbridled power on the basis of flawed presidential and parliamentary elections (none of which have been certified by international monitors, such as the OSCE, as free and fair), with human rights and fundamental freedoms of the individual subordinated to the wishes of the governing authorities--namely, the President. The Constitution of Kazakhstan and the Criminal Law Procedure Code are devoid of practical meaning or effect because they are not interpreted and applied by the courts in accordance with conventional standards of jurisprudence. They are a mockery of genuine guarantees of the rule of law and respect for human rights; and, as the present case graphically illustrates, it is futile to seek judicial remedies from the domestic courts for the violation of conventional rights.

Despite this reality, Kazakhstan nevertheless is signatory to various binding international human rights obligations, including the International Covenant on Civil and Political Rights (ICCPR); the United Nations Convention Against Torture and Optional Protocol; and OSCE commitments on the Prohibition of Torture, Freedom from Arbitrary Arrest or Detention, Rights to a Fair Trial and Independence of the Judiciary.

a. Political Persecution in Kazakhstan
Despite the initial promise of democracy and respect for human rights shortly after Kazakhstan declared its independence in 1991, the country's human rights record has been in steady decline in the past few years, when President Nursultan Nazarbayev began consolidating his power, unleashing a campaign of persecution against the opposition, independent media, and, generally, all voices of dissent in the country.
The Constitution of Kazakhstan concentrates all power in the presidency; indicative of this power is the president's own closure of the Constitutional Court some years ago. President Nazarbayev, his family and close associates have maintained a strong grip on the country's political, social and economic lives. All of the recently held elections, including the presidential elections in 2005, which gave Nazarbayev another seven years in office, as well as subsequent parliamentary and local administration elections of the same year were criticized by the OSCE and other international observers as falling far short of international standards and commitments under the Helsinki and the Copenhagen agreements.In May 2007, following the example of his late Turkmen counterpart, President Saparmurat Niyazov (Turkmenbashi), Nazarbayev had Kazakhstan’s rubber-stamp parliament vote to abolish presidential term limits, paving the way for him to be a de-facto President-for-Life.
The judiciary remains a loyal servant of the executive, with courts handing down pre-arranged sentences in fixed trials and often based on self-incriminating confessions obtained under duress. In its 2001 concluding observations regarding compliance with the UN Convention Against Torture, the Committee Against Torture noted the "allegations of acts of torture and other cruel, inhumane and degrading treatment or punishment committed by law-enforcement officials of the State party or with their acquiescence," "the insufficient level of independence of the judiciary, with judges whose tenure lacks certain necessary safeguards" and "the insufficient level of guarantees for the independence of defense counsel."

The government has been relentless in its persecution of opposition figures. On December 9, 1999, Petr Afanasenko and Satzhan Ibrayev, former officers of the National Security Committee, who both served as bodyguards for former Prime Minister and the country’s first politician to have openly challenged President Nazarbayev and been forced into exile, Akezhan Kazhegeldin, were arrested, charged with illegal possession of firearms, and subsequently sentenced to three and a half years in prison. On September 6, 2001, Akezhan Kazhegeldin was tried, convicted, and sentenced in absentia for alleged crimes involving the use of weapons/explosives and abuse of office. International human rights organizations roundly condemned the trial, while noting that the case contained many procedural violations under international standards of justice. Western countries refused to honor the Interpol warrant to extradite Kazhegeldin issued by the Kazakhstan government, allowing him to continue to live and travel freely in the West.

In 2003, the police arrested an independent journalist and an outspoken critic of President Nazarbayev, Sergei Duvanov, who was subsequently found guilty of “fabricated charges” of raping a minor and sentenced to 3 ½ years in prison following a ''fatally flawed'' trial. Duvanov was released 1 ½ years later following a vocal and sustained campaign of protest by governments, international organizations and human rights watchdogs.

On November 12, 2005, a former ally of President Nazarbayev who turned his staunchest critic, Zamanbek Nurkadilov, was found dead at his apartment in Almaty. Considering that Nurkadilov’s body was found with two gunshot wounds in the chest and one in the head, Kazakhstani and international media found incredulous the investigation’s official version of suicide. Just three months later, in February 2006, another outspoken critic of President Nazarbayev, Altynbek Sarsenbaev, was found murdered together with his driver and his bodyguard. A group of high-ranking officers from an elite unit of the National Security Committee (KNB) subsequently confessed to the crime.

b. Case of Rakhat Aliyev and “Group of 16”

Following the decision of Rakhat Aliyev, former Kazakhstani Ambassador to Austria and OSCE, to declare openly his opposition to President Nazarbayev, the latter sent an extradition request to the Austrian government, which was rejected in August 2007 due to fears that Aliyev would “not receive a fair trial in Kazakhstan, where he’s also wanted for alleged abuse of office.”
On October 11, 2007, following a preliminary investigation by the Kazakh authorities, Rakhat Aliyev, Vadim Koshlyak, Alnur Musayev, Viktor Sapozhnikov and Tulegen Imashev were declared suspects and defendants in the case under Part 1 of Article 206 of Kazakhstan’s Criminal Code. The charges against the group were based on spurious evidence and driven by political motivations, as stated by leading human rights monitors, including Human Rights Watch. The trial started in absentia on November 8 and included a total of 24 defendants, 5 of whom were being tried in absentia. On January 15, the court in Almaty found the main defendants--Aliyev and Musayev- guilty of the alleged charges and sentenced them in absentia to 20 and 15 years in prison respectively along with the confiscation of their property. The rest of the group received sentences ranging from 1 to 18 years, and 2 were acquitted.
Remarkably, the state-appointed lawyer for the defendants seemed to agree with the verdict, while in his comments following the trial, Prosecutor Almas Khudaibergenov expressed uncertainty as to whether the verdict was “completely legitimate,” indicating that there may be grounds for appeal.
On January 23, a new trial against Aliyev and Musayev and 14 other defendants began in the Akmolinsk garrison military tribunal in Astana. The trial was closed to the public and the defendants were denied the right to their own counsel, instead being represented by state-appointed lawyers. On March 26, 2008, the tribunal delivered its verdict, finding the group guilty of “attempting to forcibly seize power, illegally receiving and divulging state secrets, running an organized crime group, theft and illegal possession of firearms, and abuse of power.” Musayev was also found guilty of treason for passing state secrets to foreign intelligence. Both defendants received 20-year prison terms, while the rest or the group received 5 to 20-year prisoner terms.
The group included: Aliyev R.M, Musayev A.A., Мanevich S.M., Kokorkin V.G., Denissenko V.V., Bogushevich N.G., Kongozhin B.R., Torubarov S.A., Zazulya S.N., Berkaliev M.N., Odinokov R.Y., Kuzmenko S.M., Krainov A.A., Krainova T.A., Koroleva O.A., Tsoi S.M.
Despite the investigation’s claim that all facts and conclusions were “confirmed by the case material and the subsequent court ruling,” the text of the indictment was not made public and the scenario presented was thus widely seen in Kazakhstan and abroad as “lacking supporting evidence on grounds of national security, leaving no opportunity for verification.” Particularly implausible was the charge made public by low-ranking investigation officials that the defendants had for 10 years run a criminal group whose members had infiltrated the highest levels of government with the purpose of its eventual overthrow and were only discovered before their latest alleged attempt.
Human rights groups have expressed grave doubts regarding the fairness of the trial and the verdict. According to Amnesty International, “associates or employees of Rakhat Aliyev were arbitrarily detained by NSS officers, held incommunicado in pre-charge and pre-trial detention facilities where they were tortured or otherwise ill-treated with the aim of extracting ‘confessions’ that they had participated in the alleged coup plot. In at least one case, relatives have alleged that the trial was secret and that the accused did not have access to adequate defense.
Shortly after the conviction, on April 11, a documentary made in the best tradition of Stalin-era witch-hunts was shown on Kazakhstani TV, titled “Rakhat Aliyev: A Foiled Conspiracy,” and featuring “foreboding background music, ominously masked witnesses, and frightening tales of shadowy underground groups hatching diabolical conspiracies.”
Under the circumstances that remain murky, on July 8, one of the suspects in the case, KNB General Zhomart Mazhrenov, hanged himself in his cell at a KNB holding facility (pre-trial detention center) following several weeks of detention. Several facts cast doubt on the official version of the incident, which attributed it to suicide: prison regulations dictated that a minimum of two inmates be placed in one cell; that 24-hour surveillance cameras be installed in each cell; and that inmates’ belts are taken away, leaving no materials in a cell which could be used to fashion a noose.

On September 22, a group of armed men attempted to abduct Musayev and his translator in Vienna -- the second such attempt against him in recent months. Musayev said he and his translator were attacked by "four men armed with pistols, who tried to neutralize us physically so they could either kill us inside the car or take us somewhere.”Several reports have surfaced, including by the Austrian police, which indicate that there have been several kidnapping attempts against Musayev and Aliyev in recent months.

ANALYSIS
The circumstances of the arrest of the group of former Kazakhstani officials and businessmen linked to Rakhat Aliyev, the timing, lack of sufficiency of evidence, intimidation and harassment undertaken by the state against the defendants and members of their families strongly suggest political motives and are contrary to fundamental rights that are widely recognized in international law, including OSCE commitments made by Kazakhstan on the Prohibition of Torture, Freedom from Arbitrary Arrest and Detention, Right to a Fair Trial and Independence of the Judiciary, the UN Convention Against Torture and the International Covenant on Civil and Political Rights (ICCPR).
The fundamental elements of justice, absent here, include the right to counsel of own choice (OSCE Copenhagen Document, 1990, 5.17; ICCPR, Part III, Article 14); the right to notify others of arrest and detention (OSCE Moscow Document, 23.1 (IV)); the right to be brought promptly before a judge (OSCE Copenhagen Document, 5:15); freedom from torture (OSCE Vienna Document, 1998, 23:4; OSCE Copenhagen Document, 16; ICCPR, Part III, Article 7); the right to a public hearing (OSCE Copenhagen Document, 5.16); the right to a presumption of innocence (OSCE Vienna Document, 13.9, ICCPR, Part III, Article 14); and the right to a fair trial by an independent and impartial tribunal (OSCE Vienna Document, 13.9; ICCPR, Part III, Article 14).
1. Violation of right to counsel of own choice
The defendants in the secret military tribunal were denied their right to counsel of their own choice, instead being represented by lawyers appointed by the state.
2. Violation of the right to a presumption of innocence
From the moment of the defendants’ arrests, beginning with charges brought against the group’s alleged leader, Rakhat Aliyev, State officials, including the Prosecutor General, made statements to the press and issued other official communications proclaiming the defendants’ guilt.
These public pronouncements were intended to disparage the suspects and to influence public opinion against them. Aliyev and his alleged accomplices were presented to the public as criminals, guilty of having committed both the offenses with which they have been charged and other offenses unrelated to the charges against them.
The right to a presumption of innocence as guaranteed by OSCE Vienna Document, 13.9 and ICCPR, Part III, Article 14, has thus been seriously undermined.
3. Violation of the Right to Human Conditions in Detention
According to Amnesty International, “associates or employees of Rakhat Aliyev were… held incommunicado in pre-charge and pre-trial detention facilities where they were tortured or otherwise ill-treated with the aim of extracting ‘confessions’ that they had participated in the alleged coup plot.”

4. Denial of Contact with Family
All the defendants in the military tribunal were denied contact with their family members while in pre-trial detention, during the course of the trial, and afterwards.
5. Illegal Search and Seizure of Person, Family and Office
One of the defendants in the military tribunal case, Alexey Koshlyak, in his complaint to the UN Human Rights Committee on June 12, 2008, informed of a series of search operations by Internal Affairs and KNB officers of his parents’ home in Almaty. As a result of the searches, the house was left unlocked for 2 days until the arrival of the owners; several doors in the house were found broken; furniture and other items wantonly damaged; and several valuables missing. The subsequent inquiry that Koshlyak’s parents filed with the Internal Affairs Ministry was unanswered.

6. Illegal Expropriation and Redistribution of Property
The right to peacefully enjoy property, and to be deprived thereof only in the public interest and subject to due process of law is a right guaranteed by international norms (OSCE Copenhagen Document, 9.6).
The Almaty regional court ruling on January 15, 2008 ordered the General Prosecutor's Office to execute the “forfeiture of poverty and possessions of Rakhat Aliyev and his accomplishes… to the benefit of the state.” To date, the following enterprises belonging to the main defendant, Rakhat Aliyev, have been expropriated: the Habar TV office building, the “Rakhat” swimming pool and athletic complex and 108,000 of its shares, the sauna and sport complexes in Koldy and Rakhat villages, the “Triera” land plot, the “Shamalgan” complex. Additionally, the Prosecutor’s Office ordered frozen the assets of the Atyrau airport, including its maintenance hangar, five TU aircrafts and three Mi-8 helicopters.

7. Absence of Impartial Court
The right to fair hearing lies at the heart of the concept of a fair trial guaranteed by OSCE commitments and international covenants (OSCE Vienna Document, 13.9; ICCPR, Article 14). The established pattern of politically-motivated persecution of all critics of President Nazarbayev described earlier does not contribute to enhancing the public trust in the Kazakhstani judiciary. The numerous violations of the defendants’ right to a presumption of innocence in the present case on the one hand and the secrecy and disproportionate treatment on the other are wholly inconsistent with international principles. The right to a fair hearing encompasses all procedural and other guarantees of a fair trial that are well established in international standards and obligations. Fundamental among these procedural safeguards is the notion that the trier of fact must be independent and impartial. Regrettably, the justice system in Kazakhstan is not likely to provide either the present group of defendants or any other political opponents with such a fair trial. By all accounts, the Courts are not independent and are substantially influenced by political considerations and direction of the President. This reality makes it unlikely that the trial proceeded without close coordination with and, indeed, under the direction of the executive, casting serious doubts on the admissibility of the evidence used against the defendants and the fairness of the investigation.
CONCLUSION
The sudden arrests and subsequent trials of Kazakhstani diplomats and former high-ranking government officials following the defection of their alleged leader, Rakhat Aliyev, on charges that cannot be substantiated and their subsequent convictions in a secret trial appear to be a “logical extension of the existing political system in Kazakhstan,” and violate the procedural guarantees well-established in international law and covenants to which Kazakhstan is a signatory and has agreed to be bound.
The fundamental elements of justice, absent here, include the right to prompt notification of the reasons of an arrest and the nature of charges; the right to counsel of own choice; the right to notify others of arrest and detention; the right to be brought promptly before a judge; the right to personal dignity, humane treatment and freedom from torture; the right to a public hearing; the right to a presumption of innocence; and the right to a fair trial by an independent and impartial tribunal.
The nature and timing of the charges, the manner in which the arrests and detentions were carried out, the lack of sufficiency of any evidence upon which the current charges are based, concurrent with the inability of independent observers and legal scholars to familiarize themselves with case materials from a closed military tribunal, the lack of procedural safeguards, and, importantly, the continuing persecution of the defendants’ former colleagues, friends and family members, not to mention the kidnapping attempts against the group’s alleged masterminds, clearly demonstrate serious violations of well-established principles of international law and human rights covenants to which Kazakhstan is a party. Significantly, the trials are against the spirit of the Organization for Security and Cooperation in Europe, which Kazakhstan aspires to chair in 2010.
It is clear that only through international oversight and pressure will the Kazakhstani government meet its obligations to its own citizens and to the world at large. In light of the apparent violations, it is critical for the international community to insist that Kazakhstan demonstrate its commitment to rule of law, human rights and democracy.
To fail to do this means to leave Kazakhstan’s citizens defenseless before the arbitrary and capricious “justice” of their president – just as it happened to members of the “Group of 16.”
Call for Action:

(1) The Kazakhstani government must cease all attempts to kidnap, murder or otherwise harm Messrs. Aliyev and Musayev, put an end to its campaign of intimidation against the group’s family members; and
(2) Immediately release members of the group from prison pending a review of the case and order a new trial;
(3) Permit members of the group to consult with counsel of their own choice and provide the latter with the details of any evidence that will be used against their clients in order to prepare an adequate defense;
(4) Afforded an open public trial before a fair and impartial court.

October 2008, New York

Source: http://www.eurasiademocracy.org/home

http://www.newskaz.at/news/politics/report-and-o...dings-regarding-gropu-of-16/

Eurasia Democracy Initiative
NewsKaz
28 Oct 2008

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