Paris- Geneva, October 19, 2009

Re: Concern following the conviction of Human rights defender Evgeny Zhovtis

Dear Mr. Nursultan Nazarbayev, President of the Republic of Kazakhstan,

The Observatory for the Protection of Human Rights Defenders, a joint programme of the International Federation for Human Rights (FIDH) and the World Organisation Against Torture (OMCT), expresses its deep concern with the sentencing of Mr. Evgeny Zhovtis[1], and calls for the repeal of the sentence by the Appeal Board on Criminal Cases of the Almaty oblast Court due to review the conviction on October 20, 2009.

On September 3, 2009, the Balkhash regional Court of Kazakhstan sentenced Mr. Zhovtis to four years' imprisonment in colony under Article 296 of the Kazakhstan Criminal Code[2] ("). This trial follows a traffic accident on 27 July 2009 that involved Mr. Zhovtis and led to the accidental death of a pedestrian.

On July 27, a criminal case was opened against Mr. Evgeny Zhovtis for "traffic accident triggering death". Throughout the investigation, Mr. Zhovtis testified as witness. As demonstrated in the legal expert’s report, he fully complied with traffic laws and drove cautiously; therefore he should not have been held responsible of the accidental death. Nonetheless, Mr. Evgeny Zhovtis was accused of having committed a violation of items 19.2 and 10.1 of the traffic rules for not having reduced speed nor stopped when he lost visibility.

On September 17, 2009, the European Parliament expressed « great concern about the conduct of the investigation into the unfortunate traffic accident and of Yevgeny Zhovtis's subsequent trial, and [drew] attention to allegation that evidence in his defence was not allowed during the trial »[3].

On September 19, 2009, the OSCE conveyed its « concerns [...] about reports of numerous violations of Zhovtis' right to a fair trial in the run-up to his conviction »[4].

In the course of legal examination, arguments of the defence were not examined with due care. The peaceful agreement reached with the family of the victim and the fact that the expertise was based on wrong data were ignored. Furthermore, during trial, the OSCE monitoring group noted several procedural irregularities, and in particular:

-No expert was summonsed to bear witness for the defence, while several experts appeared for the prosecution;

-Expert reports prepared by Mr. Evgeny Zhovtis's counsel failed to be included to the criminal case report;

-Practically all of the seven petitions and requests lodged by Mr. Evgeny Zhovtis remained unsatisfied (six) or without motivated rejection, in violation of Article 102 of Criminal Procedure Code of the Republic of Kazakhstan, that requires to examine any petition submitted by participants to criminal proceedings, and Article 331, that required the court to satisfy the petition or issue a substantiated decision of refusal;

-The criminal case report did not include the statement made by relatives of the accident victim about the full agreement on material and moral compensation, which also contained their request not to institute criminal proceedings against Mr. Evgeny Zhovtis and close the legal action.

-The court rejected that petition without motivating that decision in violation of Article 431 of the Criminal Procedure Code.

In view of the numerous allegations of procedural irregularities committed during the investigation and subsequent trial, the Observatory fears that Mr. Evgeny Zhovtis was convicted to such a severe sentence in retaliation for his activities in favour of human rights in Kazakhstan.

In light of the aforementioned reasons, the Observatory calls on the authorities of Kazakhstan to immediately dismiss the charges filed against Mr. Evgeny Zhovti