1. The international black PR campaign against the Open Dialogue Foundation and its impact on the foundation’s work in the republic of Kazakhstan
Since 2010, the Open Dialogue Foundation (ODF) has been monitoring the human rights situation in Kazakhstan, partnering up with foreign missions on the ground – including the EU Delegation to Kazakhstan – to ensure a continuous dialogue with civil society on serious human rights concerns in the country. However, in sharp contrast with our experience in reaching out to the EU Delegations to Moldova, Ukraine and Russia, we regret to notice that, starting from 2018, the EU Delegation to Kazakhstan – and particularly Mr Zoltan Szalai, Deputy Head of the EU Delegation – has shown reticence in engaging in high profile cases and as well as cooperation with the Foundation, its partner NGOs and volunteers on the ground. Below we summarise the debunking of the most common arguments which have been used against the Foundation to discredit its human rights work.
As a result of ODF’s advocacy activities for human rights, the rule of law and democracy, the Foundation has become the target for several authoritarian and hybrid regimes, most notably Kazakhstan, Russia and Moldova (formerly under the de facto rule of the country’s Democratic Party’s leader and oligarch Vladimir Plahotniuc). Unfortunately, since 2017, ODF has also been targeted by Polish authorities, where, along with other civil society organisations, it has been involved in numerous peaceful activities in defence of the rule of law and judiciary independence in the country. The ruling party’s campaign against the Foundation has been widely documented in the 2019 report, which also includes PiS’s 2018 decision to unlawfully ban the President of ODF, Lyudmyla Kozlovska, from entering the EU and to deport her from the Schengen area. Eventually, as a result of a political decision by the Belgian government, she was granted a residence permit in Belgium. Later, in September 2019, a court verdict in Poland reversed the unlawful actions taken against ODF’s President.
It is important to stress that these attacks have reached an unimaginable international scale and are part of a coordinated campaign of black PR against ODF, carried out by illiberal and non-democratic governments, state and supportive media, as well as e-proxies. The establishment of an ad hoc parliamentary commission in Moldova, by direct order of Vladimir Plahotniuc, to investigate ODF’s interferences in Moldova’s internal affairs and to discredit the local pro-European opposition who took part in advocacy missions to the EU with ODF, is just one of the many examples of this coordinated slander campaign. Thankfully, in May 2020, the country’s new Prosecutor General dismissed the accusations listed in the report – based on, among other things, those of Polish authorities – as “politically motivated”.
Additionally, between 2018 and 2019, against the background of PiS’s defamatory campaign, the Foundation has filed nearly 20 lawsuits concerning the violation of its personal rights. In September 2019, the court found sufficient prima facie evidence to support ODF’s claims and obliged the state broadcaster TVP to publish nearly 40 announcements on its website to notify the audience of the ongoing proceedings.
2. Systematic misconduct by the EU delegation to Kazakhstan on human rights issues between 2018 and 2020
Below is a selective summary of the worrying circumstances concerning the cooperation between civil society and the EU Delegation to Kazakhstan, with a particular role of Mr Zoltan Szalai, Deputy Head of the EU Delegation to Kazakhstan and his approach towards human rights in the country. These concerns were formulated by NGOs, local civil society and Members of the European Parliament following their work on human rights in Kazakhstan in the years 2018 to 2020.
Firstly, it is necessary to reiterate the stated commitment of the EU towards the promotion of human rights in the Republic of Kazakhstan, as adopted by the Council in its Conclusions on the New Strategy on Central Asia. Only via respecting the guarantees of transparency can the EU mission address issues of serious concern for civil society. The EU diplomatic missions are important drivers for human rights in non-democratic states and, importantly, should comply with the obligations enshrined in the European Commission’s Staff Regulation which applies to officials of the European Union. In the specific case of Kazakhstan, the Delegation is expected to monitor the implementation of the EU-Kazakhstan Enhanced Partnership and Cooperation Agreement (EPCA) and to react to emergencies related to gross human rights abuses.
It is with great regret that we acknowledge a systematic misconduct by the Delegation and its staff, in particular a lack of care towards the human rights challenges in the country – challenges of which the European Parliament is well aware and which are highlighted in its recent resolution of 14 March 2019 on the human rights situation in Kazakhstan (2019/2610(RSP)).
According to different stakeholders, including NGOs, victims of political prosecution and family members of political prisoners, the Delegation has been reluctant in carrying out key diplomatic functions in response to human rights crises. Particularly, NGOs highlighted that the Delegation hasn’t firmly condemned arbitrary detentions and brutal beatings of peaceful protesters, and was not present to monitor key politically motivated trials or detention facilities to assess political prisoners’ conditions.
This behaviour blatantly contravenes article 11, para 1, of the EC’s Staff Regulation, which clearly states that “An official shall carry out his duties and conduct himself solely with the interests of the Union in mind. He shall neither seek nor take instructions from any government, authority, organisation or person outside his institution. He shall carry out the duties assigned to him objectively, impartially and in keeping with his duty of loyalty to the Union.”
Some local activists and members of international observation missions found obstacles in reaching out to the Delegation. In certain cases, meeting requests on politically motivated prosecutions, mass arrests and torture were either ignored or refused. This was the case for observers from the Italian Federation for Human Rights (FIDU) and Mr Malik Kenzhaliyev, judge and Chairman of the Aktau City Court, who was removed from office after acquitting Mrs Aigul Akberdiyeva, a mother of four and activist from Aktau accused of ‘calling for the seizure of power’ for critical comments on social networks (please see Annex 2).
Eventually, on 18 September 2019, following multiple meeting requests, representatives of “Qaharman” – a youth human rights group which monitored mass arbitrary detentions and police violence during the peaceful protests of 14 August 2019 – were received by representatives of the German, Dutch and British missions to Kazakhstan. Initially, the EU Delegation did not react to the meeting request but when the meeting eventually took place, Mr Zoltan Szalai, Deputy Head of the Delegation – who did not confirm his presence – took part in it, hijacked the discussion and attempted to convince the young activists to refrain from cooperating with the Italian Federation for Human Rights or the Open Dialogue Foundation. He furthermore made clear references to visa requests that the activists had submitted to the Embassy of Austria with the aim of participating in human rights events co-hosted by Members of the Parliamentary Assemblies of the Council of Europe and of the Organization for Security and Co-operation in Europe (OSCE), and ODF and FIDU, on the Schengen territory, despite this information being confidential (please see Annex 5).
Another representative of “Qaharman”, Mr Daniyar Khassenov, made several attempts to reach out to the EU Delegation with a request of intervention on the travel ban imposed on him by the Kazakhstani authorities in retaliation for his human rights activities. Eventually, the EU Delegation advised Mr Khassenov to contact the Kazakhstani authorities for a resolution of the case, thus refraining from intervening (please see Annex 6).
It is likewise regrettable how Mrs Julie Ward, a then Member of the European Parliament, experienced misconduct from the side of Mr Szalai. Between 8 and 9 April 2019, Mrs Ward joined the Italian Federation for Human Rights for a monitoring mission to the country. Both Mrs Ward and Mr Antonio Stango, FIDU’s President, noted that Mr Szalai’s conduct towards the mission members did not help to create a climate of dialogue nor mutual understanding on topics of significant importance. Mrs Ward also noted issues during the preparation of the mission. She was met with a complete lack of support from the side of Mr Szalai and reluctance to even hold a meeting between the Delegation and herself, with Mr Szalai insisting she was “not acting in her official capacity” as a Member of the European Parliament.
During the meeting, instead of encouraging the work of human rights NGOs, Mr Szalai’s questions were mainly devoted to issues like the motivation behind FIDU’s activities in the country or the sources of funds of its partner organisation, the Open Dialogue Foundation (ODF). ODF reported that despite having addressed Mr Szalai’s questions with supporting documents, the organisation had suffered from defamation [On 5 December 2018, following a request by Polish opposition MPs, the Polish MFA has provided a reply on the human rights situation in Kazakhstan based on information received from the Delegation. In this information the Delegation repeated warnings against “certain NGOs seemingly caring for human rights in the country”, implying it was ODF. The Delegation’s letter claimed that the political prisoners that ODF advocates for are actually legitimate criminals, quoting false accusations against them directly taken from the Kazakhstani authorities.]. Mr Szalai even questioned the participants’ motivation in defending the human rights situation in Kazakhstan, as if there was no need for concern, despite the European Parliament resolution or the decisions of the UN on the arbitrary detentions, which clearly listed numerous grave violations and categorised the state as an authoritarian regime (please see Annex 4).
While attacking human rights watchdogs and human rights activist Maigul Sadykova, who all have been raising awareness on the human rights violations, as well as supporting numerous MEPs by organising observation missions and providing research, Mr Szalai seemed empathetic towards Kazakhstani authorities, acting rather like an advocate for the regime.
These actions, when repetitive or systematic, constitute an act of psychological harassment aimed at undermining the dignity and the integrity of the human rights defenders concerned, as enunciated by article 12a, paragraphs 1 and 3: “1. Officials shall refrain from any form of psychological or sexual harassment […] 3. ‘Psychological harassment’ means any improper conduct that takes place over a period, is repetitive or systematic and involves physical behaviour, spoken or written language, gestures or other acts that are intentional and that may undermine the personality, dignity or physical or psychological integrity of any person.” In addition, Mr Szalai’s praiseworthy statements towards the Kazakhstani regime are far from the principles of loyalty and impartiality stated on article 17a, section 1, of the EC’s Staff Regulation, which reads: “An official has the right to freedom of expression, with due respect to the principles of loyalty and impartiality.”
Moreover, Mr Szalai went as far as to question some of victims being imprisoned for political reasons or being subjected to torture and ill-treatment, despite the aforementioned EP resolution and multiple other, independent sources confirming these gross human rights abuses. He showed a complete lack of interest in the NGOs’ findings and evidence, disregarded provided research, including well-documented cases, such as those of Mrs Aigul Akberdiyeva or Mr Iskander Yerimbetov, and the illegal expulsion of Ms Liudmyla Voloshyna and Mr Valerii Iavtushenko, the representatives of the FIDU’s human rights monitoring mission, on February 14, 2019.
Another negative experience with the Delegation took place earlier, on 5 December 2018. Following a request by Polish opposition MPs, the Polish MFA has provided a reply on the human rights situation in Kazakhstan based on information received from the Delegation. In this information the Delegation blatantly repeated warnings against “certain NGOs seemingly caring for human rights in the country”, implying ODF. The Delegation’s letter claimed that the political prisoners that ODF advocates for, together with the EP and other international organisations, are actually legitimate criminals, quoting false accusations against them which are directly copied from the Kazakhstani regime’s propaganda.
Similarly, prior to the vote on the mentioned EP resolution, the Delegation has provided inaccurate information to some EP political groups, reporting the alleged lack of further prosecution of Mrs Akberdiyeva (please see Annex 3). This led to the unfortunate and potentially harmful removal of this specific mention from the adopted text. In another case, the EU Delegation has allowed Kazakhstan’s authorities to announce that Mr Iskander Yerimbetov, a tortured political prisoner, did not actually suffer ill-treatment, as there was no statement on the matter on the part of the EU Delegation (despite its representatives visited the prisoner).
The UN Working Group on Arbitrary Detention recognised that “the violations of Mr. Yerimbetov’s fair trial rights have been of such gravity as to give his deprivation of liberty an arbitrary character”, expressed “concern at the allegations concerning the treatment of Mr. Yerimbetov during his pretrial detention” and called upon “the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Yerimbetov and to take appropriate measures against those responsible for the violation of his rights”. Likewise, the European Parliament’s 2019 urgent resolution on Kazakhstan called for the full rehabilitation and immediate release of Mr Iskander Yerimbetov (please see Annex 1).
More recently, in the context of the 17th European Union – Republic of Kazakhstan Parliamentary Cooperation Committee (PCC) meeting, a delegation of Members of the European Parliament visited Astana, the capital city of Kazakhstan, on 25 – 27 February 2020. On 25 February 2020, civil society activist and blogger, Dulat Agadil, was found dead in a pre-trial detention centre, following the brutal beatings and torture which occurred after he was arrested at night by police. It is worrying that, even in that occasion and in presence of the EP’s delegation, the EU Delegation did not publicly condemn the death of a high profile activist, which was instead widely reported by international media and deplored by the Bureau of South and Central Asian Affairs of the U.S. Department of State, the Embassy of the United Kingdom in Kazakhstan and the U.S. Mission to the OSCE.
It is highly concerning that in multiple instances the Delegation, and particularly Mr Szalai, has relied on questionable reports provided by government sources which contradict the appeals and recommendations of independent NGOs, MEPs, the UN and other international organisations.
The fact that Kazakhstani state propaganda has affected the Delegation’s reticence in engaging in high- profile cases creates a sense of helplessness within civil society and promotes a negative, unreliable image of the EU. Moreover, it has serious repercussions on the authorities’ behaviour, which should be instead oriented towards the respect of fundamental freedoms and democratic principles.
An extensive list of correspondence with the Delegation, supporting the above claims, can be found in in this report.
Annex 1: The case of political prisoner Iskander Yerimbetov
Exchange of emails between Mrs Lyudmyla Kozlovska, President of the Open Dialogue Foundation, and Mr Zoltan Szalai, Deputy Head of the EU Delegation to Kazakhstan, following the urgent appeal and request of intervention on the case of Mr Iskander Yerimbetov, Kazakhstani (former) political prisoner subjected to torture and ill-treatment during pre-trial detention. The conversation occurred between 16 and 31 January 2018 and shows Mr Szalai questioning ODF’s funding sources and “background” using similar arguments to the ones generally employed by Kazakhstani and Polish government propaganda to discredit the organisation. By focusing on attacking ODF, Mr Szalai disregarded the organisation’s urgent appeal on allegations of torture against the prisoner I. Yerimbetov.
Background of the case of Mr Iskander Yerimbetov
Mr Iskander Yerimbetov is a businessman from Kazakhstan, the brother of a Kazakhstani human rights defender and lawyer, Ms Bota Jardemalie. Ms Jardemalie provided legal consulting services to self-exiled opposition politician Mr Mukhtar Ablyazov for which she was politically prosecuted. In 2013, she was granted political asylum in Belgium.
In November 2017, Mr Yerimbetov was arrested and charged with “fraud”, in a politically motivated case. While he was held in pre-trial detention, national security officers demanded that he convince his sister to return to Kazakhstan and give false testimonies against Ablyazov.
Mr Yerimbetov reported that he had been subjected to torture and confirmed his claims during meetings with representatives of the U.S, the EU, Germany, the UK and Poland who were allowed to visit him in the detention centre. However, Kazakhstani authorities did not take into account these claims and the case concerning torture was closed.
Mr Yerimbetov’s business partners Ms Vasilina Sokolenko, Mr Dmitriy Pestov, Mr Mikhail Zorov were also prosecuted. They claimed that investigators threatened them and demanded they confessed to a crime they did not commit. On 22 October 2018, Mr Yerimbetov was sentenced to 7 years under charges of “fraud”.
Based on the same charges, Ms Vasilina Sokolenko and Mr Dmitriy Pestov were sentenced to 4.5 years. Mikhail Zorov was given 3 years of suspended sentence for cooperating with the investigators.
The Norwegian Helsinki Committee called Kazakhstan’s international partners to pressure Astana (now Nur-Sultan) to free and fully exonerate Mr Yerimbetov and his co-defendants. Human Rights Watch also denounced the torture inflicted on Mr Yerimbetov, demanding the provision of immediate medical treatment and to hold accountable those responsible for abusing him.
The European Parliament, in its resolution on the human rights situation in Kazakhstan from 14 March 2019, called for the full rehabilitation and immediate release of Mr Iskander Yerimbetov.
The UN Working Group on Arbitrary Detention concluded in 2018 that his arrest and detention were arbitrary, called for his release, and expressed concern at the allegations of torture during his pre-trial detention.
17 U.S. Senators urged President Tokayev to immediately release Mr Yerimbetov and dismiss the charges against him. They further called on the President to investigate the torture claims and take appropriate measures against anyone involved in torturing him.
On 19 December 2019, Mr Yerimbetov was released due to his critical health conditions. On 4 July 2020, Mr Yerimbetov and his family arrived safely in Geneva, Switzerland, after he was granted a humanitarian visa.
Exchange of emails between Mrs Lyudmyla Kozlovska and Mr Zoltan Szalai
Annex 2: The case of dismissed judge Malik Kenzhaliyev
Urgent meeting requests dated 13 February 2019, to the EU Delegation to Kazakhstan on behalf of the Open Dialogue Foundation on the case of dismissed judge Mr Malik Kenzhaliyev, chairman of the City Court of Aktau, who was unjustly removed from his office after having acquitted Mrs Aigul Akberdiyeva, victim of political prosecution (please see also the Annex 3 for more info on the background of the case of Mrs Akberdiyeva). The judge Mr Malik Kenzhaliyev reached Astana to join a delegation of human rights defenders for a series of bilateral meetings with foreign embassies on the ground to recall the pressures he was subjected to. However, the meeting requests did not receive any feedback or reactions from the side of the EU Delegation.
Meeting requests on behalf of the Open Dialogue Foundation to the EU Delegation
Annex 3: The case of civil activist Aigul Akberdiyeva
Exchange of emails between the Open Dialogue Foundation and Mr Vasco Batista, APA of former member of the European Parliament, Mrs Ana Gomes (Portugal, S&D), on the non-inclusion of the case of Mrs Aigul Akberdiyeva, mother of 4 and activist from Aktau, in the EP’s urgent resolution on human rights in Kazakhstan 2019/2610(RSP).
Background of the case of Mrs Aigul Akberdiyeva
Mrs Aigul Akberdiyeva is the wife of a former political prisoner Mr Ablovas Dzhumayev and mother of four minors. She is being prosecuted in the same case in which her husband was sentenced to 3 years’ imprisonment. The article “Propaganda or public calls to seize or retain power” (Article 179, section 2 of the CC) under which she has been accused provides for a punishment of up to 10 years in prison. The authorities are prosecuting Mrs Akberdiyeva on the basis of a critical comment towards the government posted on her social media.
On 6 February 2019, Ms Gulnara Baiturova, the judge of the City Court of Aktau handed down a conviction in the case of Ms Aigul Akberdiyeva, while the general prosecutor demanded Ms Akberdiyeva to be sentenced, the judge of the City Court of Aktau, acquitted her. The following day, Mr Malik Kenzhaliyev was removed from his post and suspended allegedly due an “offence to the judicial ethics’ [1], [2]. International observers from the Italian Federation for Human Rights who attended Mrs Akberdiyeva’s trial were also expelled for supposed violations of international law.
At the time of the negotiation on the text of the EP’s resolution, the case of Mrs Akberdiyeva was still pending as the Prosecutor of the Mangystau Region demanded for her acquittal to be annulled, claiming that she committed the crime. On that occasion, the EEAS provided inaccurate information on her case stating that Mrs Akberdiyeva’s prosecution had ceased. Instead, accessible sources of information could have proven the contrary, as the court appeal was expected to take place on 2 April 2019, at the Mangistau regional court. ODF provided on time the appeals of the prosecutor to Mrs Gomes which can be read below. An additional statement of former MEP, Mrs Julie Ward, expressing her disappointment for the non-inclusion of the case of Mrs Akberdiyeva, was pronounced during the debate before the voting on the EP’s urgent resolution.
Eventually, the prosecutor‘s office succeeded in cancelling the acquittal and Mrs Akberdiyeva’s case should be reconsidered in court.
Exchange of emails between the Open Dialogue Foundation and Mr Vasco Batista
SMS from Mangistau Regional Court to Mrs Akberdiyeva’s lawyer
Akberdiyeva A. I. is called to Mangistau Regional Court in Aktau on 2 April 2019 at 14:45 as “defendant” in the case against Akberdiyeva A. I. Secretary: Abdimukhan.
In the original document in RU the prosecutor appeals on 20 February 2019 to cancel Mrs Akberdiyeva’s acquittal and order 5 years of restriction of liberty. Please find below the appeal on behalf of the prosecutor’s office of the Mangystau region.
Translation of the appeal in English:
***
GENERAL PROSECUTOR’S OFFICE OF THE REPUBLIC OF KAZAKHSTAN PROSECUTOR’S OFFICE OF THE MANGYSTAU REGION
[illegible]
20 February 2019, No. 2-11-19-01421
To the Criminal Appeals Board at the Mangystau Regional Court
MOTION OF APPEAL
against the special court ruling adopted by the Aktau City Court, dated 6 February 2019 on the criminal case against A.I. Akberdiyeva
By force of the sentence adopted by the Aktau City Court, dated 6 February 2019, A.I. Akberdiyeva was found not guilty under Article 179 section 2 of the Criminal Code and was acquitted due to the absence of constituent elements of a criminal offence.
The verdict was appealed against by the Regional Prosecutor’s Office with a view to quashing the verdict and issuing a new verdict – a conviction.
In the present criminal case, the court issued a special ruling addressed to the Prosecutor General of the Republic of Kazakhstan, where the court drew attention to violations of the provisions of the Code of Criminal Procedure.
This particular special court ruling is unlawful and subject to reversal because it is based on an unjustified acquittal.
In accordance with paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 11 dated 19 December 2003, a special ruling must be lawful, justified and based on the circumstances of the case having been comprehensively, fully and objectively investigated.
Meanwhile, the special court ruling was based on unfounded conclusions about the innocence of A. Akberdiyeva.
The acquittal is based on the groundless recognition of evidence as inadmissible and on the court’s own erroneous conclusions regarding the absence of constituent elements of a crime.
The court found almost the entire criminal case inadmissible as evidence, focusing on the materials of the case presented on pages 6 to 96.
In accordance with Article 124 of the Code of Criminal Procedure, the evidence collected in the case is subject to comprehensive and objective examination. The examination includes the analysis of the evidence obtained, the comparison of such evidence with other evidence, collection of additional evidence, and verification of the sources of evidence.
This legal requirement regarding the rules of evidence examination was not observed by the court in the first instance.
In particular, the court unjustifiably pointed out the lack of information regarding the origin source of these documents.
Based on the content of the report available in the case file, it is clearly evident and clear that on 26 June 2018, the criminal case No. 184700031000181 (against A. Akberdiyeva) was registered on the basis of the available materials of criminal case No. 18470003100000044 (against A. Dzhumaev).
These circumstances were also established by the court itself, which is reflected in the court’s verdict (page 6 of the verdict).
Accordingly, the report is a procedural document justifying the admissibility and relevance of the materials on pages 6 to 96 of this criminal case.
In these circumstances, the court’s findings regarding the mandatory decision to be made by the investigator to separate the case with reference to the provisions of Article 44 section 5 of the Code of Criminal Procedure are not relevant.
Pursuant to Article 184 section 1 of the Code of Criminal Procedure, the discovery of information on a criminal offence provides grounds to initiate a pre-trial investigation.
Moreover, pursuant to Article 184 section 2 of the Code of Criminal Procedure, the investigator prepares a report on the detection of a criminal offence and attaches the documents being at his/her disposal as well as other materials which confirm the information on a criminal offence.
Therefore, the fact that the criminal case against A. Akberdiyeva contains copies of documents from the criminal case against A. Dzhumaev is in full compliance with the requirements of the procedural legislation.
When considering the present criminal case, the court reviewed the materials from the criminal case against A. Dzhumaev, as expressly stated in its verdict (pages 10, 13 and 14 of the verdict).
Therefore, the court actually established and studied the original source and confirmed the authenticity of the attached materials from pages 6 to 96.
This means that the court had a legally admissible and relevant evidence base, obtained via legal means.
However, despite these circumstances, the court, in violation of the provisions of Article 362 section 3 of the Code of Criminal Procedure, did not listen to the views of other participants in the process, in particular those of the Public Prosecutor, and granted the request of the defence to recognise a number of items of evidence inadmissible in the case, and did so before the very judicial debate.
The arguments invoked by the court whereby the main witnesses (A. Embergenova, Y. Zholay, D. Uzakbaev, O. Ukibaev, K. Arystanov) were questioned as part of the pre-trial investigation into the criminal case against A. Dzhumaev are not disputed by the state prosecution.
On the contrary, this circumstance did not allow the court to disregard the testimony of these witnesses, especially since the court questioned them during the court investigation.
The court had no legal grounds to question the legality of the proceedings involving individual witnesses, since the assessment of their testimony and of the legality of the investigative actions carried out was given in the court’s verdict against A. Dzhumaev dated 20 September 2018, which had come into force (fourth paragraph, page 10 of the verdict).
It is noteworthy that the court itself points to the impossibility of challenging a verdict that has been issued (third paragraph, page 13 of the verdict).
As noted above, along with incorrect conclusions about the existence of procedural violations, without specifying which articles of the Code of Criminal Procedure of the Republic of Kazakhstan were violated, the court drew its own unfounded conclusions by examining the text message dated 5 February 2018 and an audio recording dated 24 February 2018.
It was on the basis of its own erroneous conclusions that the court came to the wrong conclusion that actions undertaken by A. Akberdiyeva contained no constituent elements of the crime, as provided for in Article 179 section 2 of the Criminal Code.
The special nature of Article 179 of the Criminal Code called for special scientific knowledge, which the court does not possess. The aforementioned circumstance necessitated the involvement of an expert, whose opinion No. 679 dated 16 March 2018 is attached to the case file.
Based on the aforementioned expert opinion, the text message and the audio recording of A. Akberdiyeva were found to contain appeals to violently overthrow and change the authorities of the Republic of Kazakhstan.
Expert D. Rabilov, who was questioned at the court sitting, fully confirmed his conclusions, as stated in his opinion No. 679 dated 16 March 2018.
It should be noted that A. Akberdiyeva herself does not deny her direct connection with the text message dated 5 February 2018 and the audio recording dated 24 February 2018. In fact, A. Akberdiyeva acknowledges her voice and the correctness of the content, indicating that this is how she expressed her civic position.
At the same time, the court ignored the decision of the Judicial Board on Criminal Cases of the Mangystau Region Court dated 5 December 2018 (No. 4799-18-00-1ам/274) regarding the possibility of returning to the issue about the need for a comprehensive psychological, philological and linguistic expert opinion after certain court examinations have been carried out.
In such circumstances, the provisions of the Code of Criminal Procedure were not violated in the criminal case concerned.
Consequently, the special ruling shall be cancelled as unsubstantiated.
Based on the foregoing, and in consideration of the requirements set out in Articles 414, 415, 417, 418, 422, 423 and 431 of the Code of Criminal Procedure of the Republic of Kazakhstan,
I HEREBY REQUEST:
that the special ruling adopted by the Aktau City Court, dated 6 February 2018, made to the Prosecutor General of the Republic of Kazakhstan on the criminal case against A.I. Akberdiyeva, should be cancelled due to its illegality.
Public Prosecutor 000000000000000000000000000000000000000 U. Iztaeva
Annex 4: Human rights monitoring mission of former MEP Julie Ward to Kazakhstan
Exchange of emails dated 3 and 4 April 2019, between Mr Zoltan Szalai, Deputy Head of the EU Delegation and MEP Mrs Julie Ward (S&D; UK) on the occasion of her visit to Kazakhstan on 8 and 9 April 2019. Mrs Ward joined the Italian Federation for Human Rights (FIDU) for a human rights monitoring mission aimed at assessing the implementation of the EU-Kazakhstan EPCA and of the EP’s urgent resolution on the human rights situation in Kazakhstan. Before her departure, Mrs Ward requested a meeting with Ambassador Carlsson to discuss this, and many other issues of relevant importance for the local civil society. Mr Szalai refused the meeting request, stating that Mrs Ward did not follow the procedural rules established by the EU for the visits of the EP’s delegations to the country. Eventually, the meeting took place and it was held between Mr Szalai, Mr Johannes Stenbaek Madsen and Mr Edvardas Aleksandras from the side of the EU Delegation, and Mrs Ward, Mr Stango, and Ms Maigul Sadykova, human rights activist from the side of FIDU mission.
According to the attendees, during the meeting, Mr Szalai questioned FIDU’s (and its partner NGO ODF) motivations and interest in the human rights situation in Kazakhstan, as if there was no need for concern, despite the recent European Parliament resolution of 14 March 2019 (2019/2610(RSP)) or decisions of the UN on the arbitrary detentions which clearly listed numerous cases of political prisoners (e.g. political prisoners Mr Mukhtar Dzhakishev, Mr Iskander Yerimbetov and activist Mr Max Bokayev).
Instead, he focused on attacking FIDU, the Open Dialogue Foundation and Democratic Choice of Kazakhstan (DCK) founder Mukhtar Ablyazov, using well-known propaganda and disinformation narratives of the regime, such as ODF being secretly funded by Ablyazov, which in turn would be somehow linked to the Kremlin (that ODF has been vehemently opposing since its launch).
Exchange of emails between Mr Zoltan Szalai, Deputy Head of the EU Delegation and former MEP Mrs Julie Ward (S&D; UK)
Annex 5: The cases of Qaharman human rights activists
Please see below letters of request on behalf of young Kazakhstani activists and (former) representatives of the “Qaharman” human rights group to the EU Delegation which were sent between August and December 2019. Unfortunately, none of these letters received a reply or an adequate follow-up.
In the first letter sent on 13 August 2019, the “Qaharman” group asked for a meeting between persecuted civil activists, relatives of political prisoners and Ambassador Carlsson, with the aim to discuss Kazakhstan’s non-compliance with the EPCA and communications issued by the UN human rights bodies on grave cases of political prisoners.
Another request was sent on 28 August, 2019, demanding Ambassador Carlsson and U.S. Ambassador to Kazakhstan H.E. William H. Moser to raise during bilateral meetings with Kazakhstani authorities the situation of the political prisoner Mr Iskander Yerimbetov. In particular, civic activists underlined his deteriorating health conditions in correctional colony LA-155/14 near Almaty and the denial of adequate medical treatment and prisoner observation. As reported by various media and relatives of the prisoners, it is well known that in the correctional colony LA-155/14 torture and ill-treatment is widespread. On the same day, members of human rights initiative “Qaharman” and civic activists of Nur-Sultan sent another letter of appeal to Ambassador Carlsson and U.S. Ambassador Moser, describing the events of the 25th of August in the capital, during which the signatories intended to hold a peaceful demonstration and were consequently detained, searched and interrogated by the police. Some of them received fines and administrative warnings. The letter called upon foreign embassies to publicly raise the issue of the right to freedom of assembly in Kazakhstan.
On 12 September 2019, members of the human rights group “Qaharman” requested another meeting with the EU Delegation. The aim of the meeting was to share with the Embassy information on the human rights situation in Kazakhstan, in the view of the upcoming Universal Periodic Review in the UN. A meeting was eventually set up on 18 September 2019, with representatives of the German, Dutch and British missions to Kazakhstan. Initially, the EU Delegation did not react to the meeting request but eventually Mr Zoltan Szalai took part in it. According to “Qaharman” representatives, Mr Szalai hijacked the discussion, warning the young activists to refrain from cooperating with the Italian Federation for Human Rights and taking part in travels organised by the Open Dialogue Foundation, repeating the arguments employed by the regime to discredit the two organisations. The attendees submitted a written testimony to the Members of the European Parliament describing the way the meeting was conducted.
On 10 October 2019, “Qaharman” human rights initiative addressed Ambassador Carlsson expressing their concerns on the arbitrary detentions and arrests of activists during peaceful protests on 21 September 2019, attaching comprehensive data on detentions before and during the protests. The signatories also regretted that no representatives from the side of the EU Delegation was present at a press-conference organised by “Qaharman” on 3 October 2019 on the same topic, despite the organization sent an invitation on 1 October. On 10 November 2019, another appeal was sent by activists of “Qaharman” to the embassy with data on the arbitrary detentions which took place on 26 October and 9 November 2019. In all the above-mentioned cases, the EU Delegation did not respond to the appeals.
On 28 October 2019, volunteers of “Qaharman” collected over 1000 signatures among activists, NGOs and citizens from Kazakhstan under a letter addressed to the President of the European Council, at that time Donald Tusk. In the letter, the signatories demanded the EU partners that Kazakhstan fulfills its international obligations in respect of the EPCA and the UN human rights bodies communications. No feedback from the side of the EU Delegation was provided.
In another occasion, on 5 December 2019, the young human rights defenders addressed the Head of the EU delegation to Kazakhstan concerning pickets organised in front of the premises of the EU Delegation and other foreign embassies in Nur-Sultan and Almaty. Groups of peaceful protesters standing in front of the premises of the EU Delegation were completely ignored; they were demanding the release of political prisoners, the revoke of the court decision banning the peaceful opposition movement “Democratic Choice of Kazakhstan” and denouncing the impact of Kazakhstani-Chinese trade deals on human rights. “Qaharman” also reported that a few days after, dozens of activists were sentenced to administrative arrests for picketing in front of the EU premises in Nur-Sultan. Eventually, a meeting was set up with Mr Zoltan Szalai but no answers had been provided. Moreover, during the day of the pickets and after activists started to comment the EU Delegation’s Facebook page, the embassy removed the option of tagging the institution and closed the review section due to the social activity of the activists on the profile.
Background of the cases of Ms Bota Alzhanova, Ms Aliya Izbassarova, Ms Aygerim Mukhamedzhan and Ms Yekaterina Tskhay
Ms Zhanbota Alzhanova, Ms Aygerim Mukhamedzhan, and Ms Aliya Izbasarova are former volunteer observers of the Italian Federation for Human Rights (FIDU) and members of the “Qaharman” human rights group, who had been subjected to persecution in retaliation to their human rights activities. They conducted monitoring of rights violations of peaceful protesters as well as politically motivated trials and had been unjustly detained several times by the authorities of Kazakhstan.
On 6 July 2019, Ms Zhanbota Alzhanova, Ms Aygerim Mukhamedzhan, and Ms Aliya Izbasarova, being at home, monitored mass detentions through social networks. Police arrived at the human rights defenders’ homes and detained them for several hours. Earlier, on 10 June 2019, human rights defenders tried to give water and medicines to the detained protesters for which they were detained for 30 hours and subjected to an administrative fine of 50,500 tenge (about 120 euros). On 25 August 2019, they were detained once again after they tried to gather for a demonstration. Ms Aliya Izbassarova and Ms Bota Alzhanova were also fined.
On 21 September, on the day of a planned peaceful protest, Ms Bota Alzhanova was detained during observation of peaceful protests. Another FIDU observer Ms Yekaterina Tskhay was detained far away from the place where the protest was held, while Ms Aliya Izbassarova was blocked at home by police and prevented from observing the protests foreseen for that day.
At the beginning of October, Ms Aliya Izbassarova, Ms Bota Alzhanova and Ms Aygerim Mukhamedzhan were acquitted in all cases only after their persecution was exposed by human rights NGOs to the international audience.
Moreover, Ms Aliya Izbassarova, Ms Bota Alzhanova and Ms Dana Zhanayeva, another member of the “Qaharman” group, were expected to attend human rights meetings and events on the Schengen territory between September and December 2019. The three guests sent an application for a Schengen visa to the Embassy of Austria to Kazakhstan, providing headed letters signed by the organisers of the OSCE HDIM, by members of the Parliamentary Assembly of the Council of Europe, of the European Parliament and of the Italian Parliament, as well as a letter signed by the Open Dialogue Foundation confirming that all travel expenses, accommodation booking and medical insurance will be covered by the organisation. Despite the supporting documents, the three Kazakhstani citizens were not allowed to temporarily leave the country due to insufficient documents and justifications. What’s more, during the meeting between the EU Delegation and “Qaharman” human rights defenders of 18 September 2019 Mr Szalai mentioned the issue of visa requests, despite such information should be strictly confidential.
Letter dated 13 August 2019 on behalf of Aliya Izbassarova, former member of human rights initiative “Qaharman” in which the activist demands a meeting between Ambassador Carlsson and persecuted civil activists and relatives of political prisoners.
“Letter of appeal dated 28 August 2019 on behalf of representatives of human rights initiative “Qaharman” demanding the Head of the EU Delegation to Kazakhstan and the U.S. Ambassador to Kazakhstan to raise during bilateral meetings with the Kazakhstani authorities the issue of the deteriorating health conditions of former political prisoner Iskander Yerimbetov.”
Letter of appeal dated 28 August 2019 on behalf of representatives of human rights initiative “Qaharman” and civic activists of Nur-Sultan demanding the Head of the EU Delegation to Kazakhstan and the U.S. Ambassador to publicly raise the numerous violations to freedom of assembly.
Meeting request on behalf of members of the human rights group “Qaharman” in view of the upcoming Universal Periodic Review of Kazakhstan at the United Nations and the written testimony by the attendees reporting the way the meeting of 18 September 2019 was conducted follows this request.
Invitation letter on behalf of representatives of human rights group “Qaharman” addressed to the Head of the EU Delegation to Kazakhstan to attend a press conference concerning the arbitrary detentions and arrests of activists during peaceful protests on 21 September 2019.
Information letter on behalf of representatives of human rights group “Qaharman” addressed to the Head of the EU Delegation to Kazakhstan regarding data collected by different NGOs, such as “Qaharman”, the Open Dialogue Foundation and the Italian Federation for Human Rights, on the brutal arrests of peaceful protesters which took place on 21 September 2019.
Open request letter dated 28 October 2019 on behalf of “Qaharman” human rights activists addressed to the EU institutions and signed by over 1000 citizens and human rights defenders from Kazakhstan.
Letter dated 10 November 2019 on behalf of “Qaharman” activists informing the EU Delegation about the arbitrary detentions of peaceful protesters during and before the demonstrations which took place on 26 October and 9 November 2019.
Letter dated 5 December 2019 on behalf of “Qaharman” human rights initiative addressed to the Head of the EU delegation to Kazakhstan concerning the peaceful protests organised in front of the EU Delegation and other foreign embassies on the occasion of November 2019 mission of the Permanent Representations of the EU member states to Kazakhstan. Groups of peaceful protesters standing in front of the premises of the EU Delegation were ignored; a few days after dozens of activists were even sentenced to administrative arrests for picketing in front of its premises in Nur-Sultan.
Annex 6: The case of human rights defender Daniyar Khassenov
Below the appeals by Mr Daniyar Khassenov, member of human rights group “Qaharman” and former volunteer for the Italian Federation for Human Rights (FIDU), sent to the EU Delegation between July and October 2019, regarding the travel ban imposed on him by Kazakhstani authorities. Mr Khassenov was banned from leaving the country in retaliation to his human rights activities despite owning a valid Schengen visa.
On 10 July 2019, in a bid to seek support from the EU foreign missions in Kazakhstan, Mr Khassenov sent a request of intervention to the Ambassador of the EU delegation to Kazakhstan H.E. Sven-Olov Carlsson and to the Ambassador of Austria in Kazakhstan H.E. Gerhard Sailler. On 15 July 2019, Mr Zoltan Szalai, Deputy Head of the EU delegation to Kazakhstan, replied to Mr Khassenov recommending him to contact the Ombudsman for Human Rights in Kazakhstan. It is known that the institution of the Ombudsman is under Presidential decree and, therefore, cannot be considered as independent. On 17 July, 6 August and 9 October 2019, Mr Khassenov renewed his appeal to the EU delegation asking for support but received no reply.
Background of the case of Mr Daniyar Khassenov
Mr Daniyar Khassenov is a member of “Qaharman” human rights group, a volunteer of FIDU in Kazakhstan and of (former) MEP Mrs Julie Ward. He has been observing political trials and peaceful protests in Kazakhstan since April 2019.
On 22 June 2019, he was expected to travel to Europe where he would have attended side events and bilateral meetings upon invitation of Italian Parliamentarians Mr Roberto Rampi and Mr Mauro Del Barba and the Medical University of Graz (Austria). Despite holding a valid Schengen Visa, Mr Khassenov was banned from leaving Kazakhstan. He later found out that, on 4 May 2019, the Almaty Police Department opened a criminal case against him on “extremism charges”; however, the travel ban was imposed on 3 May 2019.
Because of his engagement in human rights activities, Mr Khassenov was detained multiple times near his home or university and interrogated in several police stations. Moreover, his parents were faced threats of being fired and Mr Khassenov to be expelled from university and jailed. On 13 August 2019, on the basis of a court order of 6 May 2019, police searched his house, seizing his electronic devices and looking for his personal belongings. Since then, Mr Khassenov tried to leave Kazakhstan 9 times but managed to flee the country only on 19 August 2019. This was possible only after constant pressures on the government from the side of MEP Mrs Julie Ward and Italian Parliamentarians.
Mrs Ward, who had previously enquired about the ongoing criminal persecution of Khassenov, received from the Embassy of Kazakhstan to Belgium a reply signed the Ministry of Interior of Kazakhstan, concerning his travel ban. In the reply, Mr Khassenov was found guilty of participating in unsanctioned protests. This constituted the basis of his travel ban notwithstanding the fact that Mr Khassenov never took part in those protests mentioned in the letter.
The UN Working Group on Arbitrary Detention, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the situation of human rights defenders expressed their concern on the travel ban issued against Mr Khassenov, his repeated detentions and threats against him and his family members.
In September 2019, only thanks to international pressure, the case was closed and the charges were dropped.
First letter of appeal dated 15 July 2019 on behalf of Mr Daniyar Khassenov to the EU Delegation to Kazakhstan concerning the travel ban.
Reply from Mr Zoltan Szalai, Deputy Head of the EU delegation to Kazakhstan to Mr Khassenov dated 15 July 2019 suggesting that he contacts the Office of the Commissioner for Human Rights of the Republic of Kazakhstan.
Second letter of appeal on behalf of Mr Khassenov to the EU Delegation to Kazakhstan dated 17 July 2019 presenting worrying developments on his travel ban.
Third letter of appeal on behalf of Mr Khassenov to the EU Delegation to Kazakhstan dated 6 August 2019 informing its representatives about the criminal charges brought to Mr Khassenov and the political background of his case.
Fourth letter of appeal on behalf of Mr Khassenov to the EU Delegation to Kazakhstan dated 9 October 2019 following the information that the criminal charges against him were dropped and demanding a meeting with Mr Peter Burian, EU Special Representative for Central Asia.
Photo credit: Aleksandar Mijatovic
