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“Attacks on the legal profession and lawyers defending human rights” – an event at the European Parliament

On Tuesday 19 February 2019 in Brussels, the Subcommittee on Human Rights (DROI) of the European Parliament hosted a hearing on “Attacks on the legal profession and lawyers defending human rights”. The event was chaired by MEP Antonio Panzeri, Chairperson of DROI, and touched on the pressing issue of the threats to the legal profession worldwide.

Introductory remarks by Mr Panzeri on the EU’s existing tools and future response to protect lawyers and human rights defenders globally were followed by the contribution of Mr Patrick Henry, Chair of the Human Rights Committee at the Council of Bars and Law Societies of Europe (CCBE), who presented the worrying trend of lawyers being “harassed, insulted, threatened, pursued, arrested, imprisoned, tortured and even murdered”.

Among the countries mentioned during the debate, where lawyers’ activity is hindered and can lead to persecution or arrest, were Turkey, Azerbaijan, China and Kazakhstan. Arbitrary detention of lawyers and their relatives, political interference, withdrawal of licenses, controversial reforms of bar associations and lack of independent justice systems were further examined by the other speakers: Mr Richard Sedillot, representative of the “Observatoire International des Avocats en Danger” (OIAD), tackled the situation in Turkey; Mr Fuad Agayev, lawyer from Azerbaijan, explained the problematic conditions in his country; Ms Nicola Macbean, Director at the Rights Practice, spoke about the Chinese context and Ms Botagoz Jardemalie, political refugee and lawyer from Kazakhstan, presented her personal case and the general framework of the Central Asian giant.

Last year, the Open Dialogue Foundation, in partnership with Members of the European Parliament, organised an event on the topic of the persecution of lawyers and presented its report, “Defence for the defenders”, calling upon the EP subcommittee on human rights to initiate a discussion on the legal profession and the constant threats lawyers face in authoritarian countries.

  • Read the speech of Ms Botagoz Jardemalie, Kazakhstani lawyer, political refugee and sister of political prisoner Iskander Yerimbetov:

“Good morning, Mr. Chairman, dear Members of the European Parliament, ladies and gentlemen!

I am a Kazakhstani national. I was trained in the law both in Kazakhstan and in the US, and I’m a member of the New York Bar.

For years I worked discreetly on Kazakhstan-related politically motivated cases. I worked with NGOs on a pro bono basis on situations of torture and the persecution of political activists. Many lawyers like me in Kazakhstan are afraid to publicly defend victims of torture and politically persecuted people.

The Belgian authorities granted me political asylum having considered risks that I faced as a lawyer and human rights defender.

I have been the target of a kidnapping plot; of electronic and physical surveillance; and of a smear PR campaign. I faced attempts to have me arrested through the abuse of Interpol and fabricated allegations of crime. After none of those actions stopped me, my brother, Iskander Yerimbetov, who lives in Kazakhstan, was arrested – or to be more precise, taken hostage – both as a reprisal to punish me for my work, and as a means of compelling me to stop working. When arrested, my brother was told that if he convinces me – a political refugee – to come back to Kazakhstan and give false testimony against people that I defended, the criminal case against him would be closed. My brother refused. He was brutally tortured for over two months. The authorities also wanted him to “collaborate with the investigation”, which for them meant signing false confessionary testimony about the fabricated charges. Last October, despite an indictment and verdict lacking any elements of crime, my brother was sentenced to a seven-year prison term.

Why has it happened to me and my family?

To explain why lawyers or their families are persecuted by the state and, more broadly, what is happening in Kazakhstan with the legal profession and the judiciary, it is important to understand the political development of modern Kazakhstan.

Since its independence in 1991, Kazakhstan established the essential elements of a market-oriented economy as well as a façade of democratic institutions. In reality, the state functions as a highly authoritarian and repressive regime.

President Nursultan Nazarbayev has ruled Kazakhstan since 1991. Elections, whether presidential or parliamentary, are neither free nor fair. The last time around, Nazarbayev won with 97,75% of the vote. According to the constitution, the president is restricted to two five-year terms; but President Nazarbayev enjoys a special status as Kazakhstan’s “first president” and the “Leader of the Nation”, which exempts him from term limits.

All seven registered political parties are controlled by the presidential administration and the Committee for National Security (KNB, the successor of the Soviet-era KGB – secret police). All parties must demonstrate loyalty to Nazarbayev.

Any opposition is severely repressed. In March of last year, the authorities declared the opposition Democratic Choice of Kazakhstan movement, which existed only online, to be an “extremist” organization. Its supporters have faced prosecution and imprisonment.

There is no independent free press. All media outlets, including news websites, are either in state hands, owned by Nazarbayev’s family members or cronies, or under the control of the presidential administration and the KNB – the secret police.

People receive real prison terms for posting and reposting legitimate political commentary on social networks. Since last year, the authorities have throttled or entirely shut off the Internet during live broadcasts of the opposition.

Freedom of assembly is severely restricted as well. The regime has invented a new method of limiting protests: people get arrested pre-emptively, usually on the eve of any publicly announced protest.

Last year, activists Ablovas Dzhumaev, Kezhenbek Abishev, Almat Jumagulov and Aset Abishev received prison sentences for social media activities and peaceful protests.

Their defense lawyers all experienced political pressure from prosecutors, the KNB and judges. In protest against the absurd and baseless allegations against him and the violations of his procedural rights, one of the activists cut his wrists during the hearings. Disciplinary actions were taken by the court against his lawyer, as a scapegoat, for allegedly not preventing this desperate act of protest.

Corruption is endemic at all levels of government. The presidential family and closely related business groups have consolidated political and economic power. Persecution for corruption typically emerges only after an individual has fallen out of favor with the leadership, or because of an internal power struggle. Meanwhile, prosecution for alleged financial crimes is a weapon of choice used against journalists, activists and opposition figures.

Despite this context, and because of it, the government invests heavily in state propaganda that conveys the false narrative of a successful and legitimate regime. Abroad, mainly in the EU and US, the state spends heavily on public relations campaigns. Lobbyists and PR companies are hired either directly by government agencies such as the Ministry of Justice, or indirectly through private companies controlled by Nazarbayev’s inner circle. PR campaigns seek to project Kazakhstan as a thriving, stable state and reliable partner. They attempt to whitewash and sanitize the realities of corruption and human rights violations, and try to discredit regime opponents and human rights defenders.

This year is particularly important for Kazakhstan. We are anticipating presidential elections. We do not know exactly when: in Kazakhstan, the regime does not announce elections until the last moment. In 2018 Nazarbayev signed a decree making him Chairman of the country’s Security Council for life. The decree gave the Security Council significant constitutional powers which could allow Nazarbayev to maintain power even if he vacates the presidency.

Against this backdrop it is expected that the main presidential candidate will be Dariga Nazarbayeva – the president’s oldest daughter. She has rotated through various governmental positions and is now a senator appointed by a decree of her father. Any other candidates will be just extras to fill the scene. Nazarbayev has appointed Berik Imashev, his daughter’s relative, as head of the Central Election Commission. New restrictions introduced in 2017 have placed tight control over nominations and made it impossible for independent candidates to appear on the ballot.

The survival of this regime relies upon control over the prosecutorial and judicial systems.

The judicial system is under the control of a strict hierarchy, especially noticeable in politically motivated cases. The judge of first instance cannot make a decision without the approval or direct instructions of a superior judge. The chairs of local courts are accountable to judges of the Supreme Court, who in turn are controlled by the Chairman of the Supreme Court. He, in turn, takes instructions or coordinates decisions with the head of the secret police, the Ministry of Justice, the Prosecutor General and the presidential administration.

A recent example happened in the city of Aktau: on February 6th, in a politically motivated case, Judge Gulnara Baiturova acquitted an activist and mother of four, Aigul Akberdiyeva. She was accused of “calling for the seizure of power” after critical comments on Telegram. The prosecutor demanded that Akberdiyeva be sentenced for 5 years, but the judge acquitted the activist. It happened with the approval of the supervising judge – the Chairman of the City Court, Malik Kenzhaliyev.

The next day, the Chairman of the City Court was removed from his post. His powers as a judge were terminated. The state-controlled media started a smear campaign against the judge. The authorities made it clear that they will immediately punish those judges who dare to issue independent decisions in politically motivated cases.

Judge Kenzhaliyev publicly stated that he was being persecuted precisely in connection with the case of Akberdiyeva. He asked for the protection of human rights organizations, Members of the European Parliament and Western diplomats. He stated publicly that officers of the secret police attacked him. Yet, on February 14th, the judge had a meeting at the Supreme Court and suddenly changed his position. He accused human rights defenders of exerting pressure on him during the Akberdiyeva trial. He made a video statement in which he revoked his previous position and plea for help which had been addressed to human rights defenders and the international community. This is a clear example of how the authorities interfere with judicial independence and ensure no judge will stray from the official line.

In Kazakhstan, the most popular measure that the regime uses to intimidate lawyers is to revoke their license, or threaten to revoke it. This gives the authorities a way of keeping those lawyers whom they consider “problematic” out of the profession. In Kazakhstan, “problematic” lawyers are considered to be those who take part in politically motived cases, cases of torture, who defend political opponents and do not agree to collude with the prosecution. Such lawyers are themselves in constant danger.

In many instances the investigators in criminal cases pressure pre-trial detainees to stop using their lawyers if the investigators feel that the lawyers will vigorously defend their client. For example, the investigators demanded that my brother, who had been tortured in a pre-trial detention facility, refuse to accept the lawyer hired by our parents.

It is important to note that in Kazakhstan, service in the police, the prosecutor’s office, and the courts for more than ten years automatically confers the right to receive a license to be a defense lawyer. This has led to a situation where, by various assessments, 80 – 90 percent of the Kazakhstani bar consists of former employees of law enforcement bodies. These officials receive this license without any formal training.

A lawyer’s diligent efforts in defense of a client in Kazakhstan often lead to the issuance of “interlocutory rulings” by presiding judges. Such rulings can be issued “for interference in investigative actions”; “for counteracting the court”; “for violation of the secrecy of the investigation”; or “for dragging out the judicial process”. These rationales are mere pretexts for control, implemented in the most absurd manner. Our lawyers generally understand the risk of such rulings and try to minimize their possible punishment by trying hard not be considered too aggressive in defending clients.

The procedural independence of defense lawyers is extremely low or non-existent. For example, in cases of alleged terrorism, extremism or money laundering – popular accusations in politically tainted cases – lawyers have a duty to furnish data to the designated state body that became known to them in connection with defending their client. In other words, the lawyer is obliged to act against the interests of the client.

The legal profession in the field of human rights has been gutted for an entire generation, and it is now on the verge of being completely wiped out.

The recent 2018 law “On lawyers’ activity and legal assistance” made it even harder for lawyers to defend clients and further reduced the independence of the legal profession.

What can be done in these bleak circumstances for the legal profession in Kazakhstan?

Enormous good can be done when diplomats or other representatives from the EU visit to meet publicly with politically persecuted lawyers, judges, victims and family members. On a more sustained basis, embassies of the EU member states play a crucial role when they take turns acting as observers in politically motivated trials, visiting victims of torture, publishing reports based on the results of these meetings, and appearing in the capacity of observers during peaceful protests.Experience from other post-Soviet countries shows that such actions, and especially principled, public, critical statements in response to repressive actions of the authorities, do have an effect – civil society, law professionals, and judges get immunity for at least a little while. The torture stops, and even in the most hopeless situations, a politically persecuted person gets a signal and support to keep on fighting.

A 2016 European Parliament resolution called upon the EU, and in particular the European External Action Service, to monitor closely developments in Kazakhstan, to raise concerns with Kazakhstan’s authorities where necessary, to offer assistance, and to report regularly to the European Parliament, and called on the EU Delegation in Astana to play an active role in monitoring the situation. Unfortunately, this is not taking place in Kazakhstan. EU diplomats are not in attendance at politically motivated trials, and there are no public statements in defence of the politically persecuted.

One of the explanations given by European diplomats for the silence is the unwillingness to “interfere in the personal life” of political prisoners, but just like in other countries where a law-based state does not work, public condemnation of torture and cruel treatment, and of groundless detention for the politically persecuted, is the only salvation. That’s why more than five hundred citizens of Kazakhstan have signed a petition demanding the European Parliament and the European Commission adopt a resolution on human rights and publicly condemn political persecutions in Kazakhstan. You should understand that those who signed this petition risk a real prison sentence.

On May 10th, 2018, participants in a peaceful protest against torture and political persecutions were being brutally arrested by the dozens right in front of the EU diplomatic mission’s building in Astana, and no one from the mission even came out to the protesters. There was not a single statement condemning the actions of the authorities and the subsequent criminal prosecution of the participants in peaceful protests in other cities that day.

In my own family’s experience we have seen the silence of European diplomats being used by the Kazakhstani authorities to close an investigation on torture. In February 2018, the authorities staged a meeting of my brother with five EU diplomats. However, the report on what occurred at the meeting was classified as secret. After this, the General Prosecutor’s Office of Kazakhstan closed the investigation of my brother’s allegations of torture stating,inter alia, that during my brother’s confidential meeting with a special group of EU representatives, no complaints were made about torture. This was absolutely untrue – my brother did recount his experiences of torture.

Based on what I have experienced and learned supporting numerous victims of the regime in Kazakhstan, my recommendations both to the European Parliament and to the European External Action Service include the following:

1. Public condemnation of credible reports of cruel treatment and political persecutions by the Kazakhstani authorities is extremely important. It is crucial to stress the need to respect and to guarantee the independence of lawyers, to cease their persecution and to ensure their safety.

2. I echo the recommendations of the European Parliament’s 2016 and 2017 resolutions, especially that EU-Kazakhstan Human Rights Dialogues should be effective and results-oriented and those dialogues should be stronger to make them conducive to the establishment of a forum in which issues can be openly addressed.

3. The Rules of Procedure of the EU-Kazakhstan Parliamentary Cooperation Committee (PCC) must become more transparent and a platform should be established to evaluate the Enhanced Partnership and Cooperation Agreement (EPCA); the PCC must become a place where human rights and civil society issues are publicly and effectively discussed.

4. There should be full compliance by Kazakhstan with its legal obligations as set forth in communications from the UN Human Rights Committee, UN Committee Against Torture and UN Working Group on Arbitrary Detention; compliance with Kazakhstan’s obligations under international law must be an important condition for further cooperation between the EU and Kazakhstan.

5. Given Kazakhstan’s persistent refusal to allow an independent international investigation into the Zhanaozen massacre of 2011, personal sanctions should be applied against all officials responsible for the shootings and the attempted cover-up.

I believe that there is hope for my people and for my country’s future, but only if European and other international influencers apply principled and unwavering pressure on a regime that has become a serial violator of the fundamental principles of the rule of law.

Thank you for your attention.

Bota Jardemalie”