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Fair legal process and protection for human rights defenders in Kazakhstan

In November 2015 Kazakhstan introduced new land legislation, which limited the rights of property over such land by citizens. The proposed legislation caused a series of protests in 2015 and 2016, followed by large scale detentions, prosecution of activists and journalists across the country, blocking of news websites and continued restrictions on the free exercise of the right to freedom of peaceful assembly.

Human rights defenders Max Bokayev and Talgat Ayanov were among many activists in different regions of Kazakhstan that stood up against the reform peacefully, organizing a demonstration on 24 April 2016 and calling for protests on their Facebook profiles. Their demonstration was deemed illegal by the government.

On 16 May 2016 criminal proceedings were opened against the organizers of the demonstration. Both human rights defenders were detained on 3 June 2016 and remain in custody. Hefty charges were brought against against them after two days of detention and included incitement to social, national, ethnic, racial, class or religious hatred (art. 174 par. 2 of the Criminal Code), violation of the order of organizing or conducting mass events (art. 400 of the Criminal Code).

The case is pending before the Court No. 2 in Atyrau and is carried out with an extremely fast pace. Court hearings are appointed almost every day. Already at the first hearing, the presiding judge is G. Daulesheva violated procedural rules, deciding to reject the motion to dismiss the judge by herself. According to international standards, such motion should be reviewed by another judge. Moreover in a decision issued on 10 October 2016, she granted herself police protection, arguing that “this is a political process” which caused a “public outcry”. Judge Daulesheva admitted that the nature of the proceedings is political.

The hearings gather a lot of public interest, with numerous observes, journalists, bloggers. However, not all of them are allowed to the room, due to its limited seize. Some of them follow the hearing from another room, where they see the broadcast. Hearings from their nature are open to the public and it is the duty of the presiding judge to organize hearings in the most inclusive manner. All belongings of observers are searched and checked. The observers are not allowed to carry voice recorders or cameras.

During the hearings, the principle of equality of arms has been violated on many instances, and the accused are placed in a disadvantageous position vis-à-vis the prosecution. The accused are seated behind a glass wall, which does not allow them to hear properly the judge and the witnesses and is a particularly humiliating practice. Defense lawyers complain on numerous occasions about the bad quality of the Russian-Kazakh translation, which renders comprehension even more complicated. They also complain about the limited access to the case file, since not all case materials are delivered to them (they only received 16 CDs with materials out of 60 collected in the case).

The motions to hear the accused witnesses and experts are all rejected by the Court. The judge constantly threatens the defense lawyers, raising objections, that they will be prosecuted for contempt of court. Six prosecution witnesses were heard by now, some of them via video connection of poor quality, despite no reasonable obstacles to bring them to the court. Defense lawyers objections on this were rejected.

The health of Max Bokayev, who suffers from chronic hepatitis C, has deteriorated; a doctor was called to the hearing on 17 October. The accused appears before the court unshaved, as the prison guards refuse to provide him with a razor. Talgat Ayanov was brought to the court on 19 October, despite his poor health condition, as he was trying to cut his veins.

Numerous human rights violations occur around the trial. Multiple local trial observers report administrative harassment and intimidation.

On 23 October 2016, three activists Askhat Bersalimov, Kural Medeuov, Suyundyk Aldabergenov were prevented from holding a peaceful assembly in support of Max Bokayev and Talgat Ayanov. They were detained by police and brought to court. The specialized administrative court imposed on them a sentence of 10 days of administrative detention.

On 24 October 2016 at 11:30 pm Atyrau Rinat Iskaliyev, a civil activist from observing the trial has been beaten by unknown man when approaching his house. He was taken to an emergency station by ambulance. Civil society representatives from Kazakhstan believe that he was beaten with a purpose not to allow him into the court as observer.

The Helsinki Foundation for Human Rights, the Netherlands Helsinki Foundation and their partners in Kazakhstan will continue monitoring the trial and call on the government of Kazakhstan to ensure a fair and transparent legal process for Max Bokayev and Talgat Ayanov. The two activists should never have been arrested in the first place for exercising their fundamental right to freedom of peaceful assembly. The government of Kazakhstan should take immediate action to put a halt to administrative and physical harassment of local civil society activists observing the trial and fulfill its duty to provide adequate protection of human rights defenders.

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