The prosecution did not have sufficient evidence to prove Askar Moldashev’s guilt; he had previously faced charges of drug possession. During the trial, gross procedural irregularities and inconsistencies in the evidence were revealed. Despite this fact, the court found Askar Moldashev guilty and handed down a suspended four-year prison sentence.
The legal process in the case of Askar Moldashev lasted 4 months, starting from 31 October, 2012. He was detained under very suspicious circumstances and was charged with ‘possession of drugs on a large scale with intent to distribute’. Askar Moldashev, who is the brother of the former publisher of the banned newspaper ‘Golos Respubliki’ (‘Voice of the Republic’), Daniyar Moldashev has repeatedly made statements to the effect that the evidence had been fabricated and that he had been receiving blackmails from the secret services of Kazakhstan.
First, the criminal case was considered in the Specialised Inter-district Criminal Court of Almaty, but later prosecutors rewrote the indictment act, charging Askar Moldashev with a lesser offence under Article 259, section 1-1 of the Criminal Code (‘possession of drugs on a large scale without intent to distribute’). The case was transferred to the jurisdiction of the Bostandyk District Court in Almaty.
During the trial, gross procedural irregularities and discrepancies in the evidence base have been revealed; they were reported by Inessa Kisileva, Askar Moldashev’s counsel, during the parties’ oral stamements:
- First, Askar Moldashev has repeatedly stated that the drugs had been planted on him at the moment of arrest, but the investigatiors ignored this assertion. In turn, according to the procedural rules, both the incriminating and exculpatory circumstances of the case should have been investigated. Therefore, as stated by the counsel, the investigation was conducted in a one-sided, accusatory manner.
- Second, as stated by Moldashev, during the arrest, a blue bag was put on his head, and so, he could not see the planting of drugs. This package was captured on an operational video. However, in the investigation files, this package is not referred to at all. According to Inessa Kisileva, if the investigator had been impartial, this bag would have been examined in order to detect any residue of sweat, hair or micro-fibre from Moldashev’s clothing.
- Third, on the operational video one can see traces of fresh dust on Askar Moldashev’s clothing. Witnesses who were present during Moldashev’s arrest, claimed that he had not shown resistance during the arrest, and so he hadn’t been wrestled to the ground. This confirms the testimony given by Moldashev, who stated that unidentified persons, having put a bag over his head, forced him into a car, where they restrained him and then pressed him to the floor subsequently, the dust got on his clothes.
- Fourth, the lawyer requested that thesearch record, produced in connection with the search of Askar Moldashev, be invalidated, as it does not match the true circumstances. In particular, the report does not reflect the facts, recorded on the video, on which Moldashev is requesting a lawyer, or the scene in which he is requesting that a blue bag, lying on the bonnet of a white Volkswagen, be seized and attached to the case materials. The video shows that the investigator has repeatedly touched the tablets without protective gloves. The description of the package with the evidence, included in the protocol, does not match the video or the materials, presented for examination.
Innesa Kisileva stated that Askar Moldashev’s arrest was clearly provocative. Shortly before his arrest, NSC workers had made attempts to induce Askar Moldashev to tacitly collaborate with the agency in order to collect information pertaining to the ‘Golos Respubliki’ newspaper. Askar Moldashev refused to cooperate, and, as a result, a criminal case was fabricated against him.
On 1 January, 2013, the trial of Askar Moldashev came to an end. Judge of the Bostandyk District Court, Yelena Kvan, held that Askar Moldashev was guilty of possession of drugs on a large scale without the intent to distribute, and sentenced him to a four-year prison term suspended for a period of 3 years (prosecutors had sought a 5-year suspended prison term). The judge also ordered his release from custody straight from the courtroom.
The Open Dialogue Foundation welcomes the release of Askar Moldashev. However, taking into account the questionable nature of the criminal case, the objectivity of the sentence imposed raises doubts. A threat to the safety of Askar Moldashev and his family still remains, and thus, the development of this case must continue to be closely monitored by the international community.