Statement of the Civic Solidarity Mission to Monitor the Trial of Oil Workers from Zhanaozen
International and Kazakhstani experts representing the NGO coalition Civic Solidarity monitored the trial of oil works from Zhanaozen who were accused of organizing and participating in mass riots on December 16, 2011. Monitors were present throughout the trial and have preliminarily concluded that:
• The investigation of the events that took place on or after December 16, 2011 was neither full nor independent. As a result, the version of events presented in the indictment differed significantly from the picture presented in the depositions of witnesses, victims and the accused.
• The accused and some witnesses were the victims of severe violations of their rights during the pre-trial stage, including: the widespread use of torture (all of the accused who were not hospitalized for wounds received on December 16 claimed they were tortured, as did 10 witnesses); denial of access to an attorney during the initial phase of the investigation (when most of the torture and other inhuman treatment occurred); witness intimidation; and the fabrication of evidence.
• Although the trial itself was carried out in accordance with Kazakhstani legal procedures, the involvement as witnesses of police officers who were alleged to have tortured some of the witnesses is a cause for serious concern. So too does the decision to allow police officer to testify anonymously, which made it difficult for the accused to question them adequately.
• The trial failed to take into account the responsibility of state authorities for the violent suppression of a peaceful gathering, which led to the deaths of at least 16 individuals.
It will only be possible to make a final determination about the fairness of the verdict once the final text is available. In this context, it will be particularly important to determine whether or not evidence allegedly extracted under torture was used as part of the basis for the court’s ruling. At this point we only know that although the judge submitted all reports on the alleged use of torture for investigation, the prosecutor’s office has failed to identify any of those responsible.
The basic goal of the International Monitoring Mission was to monitor the observance of international fair trial standards in the court case against oil industry workers from Zhanaozen who were accused of organizing and participating in mass riots on December 16, 2011 (penal case number 11471803100615). The trial began on March 27, 2012 and concluded on June 4, 2012. Representatives of the International Monitoring Mission were present in the court room throughout.
The monitoring was possible thanks to the Aktau City Court’s respect for the rules of open court proceeding. The Court made it possible for the public (including also the observers) and journalists to watch the hearings and made every effort to ensure that the proceedings ran smoothly and in compliance with procedural standards.
Nevertheless, the International Monitoring Mission cannot does not consider the trial to have been in compliancewith fair trial standards because of a series of violations of the rights of the accused. The following issues gave rise to significant reservations from the standpoint of compliance with the standards of a fair court trial:
1. Lack of a Full and Independent Investigation of the Events that occurred on or after December 16, 2011
The lack of a full and independent investigation of the events which occurred on or after December 16, 2011 is of huge importance for assessment of the guilt of the persons accused in the trial. It follows from the depositions of the victims, witnesses and the accused that the course of events of December 16, 2011 was different from what was presented in the indictment drafted by the prosecutor’s office.
1.1. In particular, there was no full clarification of the issues related to provocations towards the striking oil industry workers by state authorities and unidentified individuals, including:
• The role of the mayor (akim) of Zhanaozen, Orak Sarbopeev, in provoking the riots. (It follows from the depositions presented during the trial that he: encouraged the erection of yurts on the city square; provided property guarantees to yurt owners; organized End-of-the-Year holiday celebrations at the site of the strike; ordered the erection of a stage and a holiday tree on the square; ordered children and teenagers to participate in the celebrations, etc.).
• Provocations by law enforcement officials on December 16, 2011 including a vehicle of UAZ make which was driven directly into the crowd and a mounted police unit which passed through the site where the striking oil industry workers were conducting their protest.
• The failure of the police to respond provocations by unidentified young people in black jackets. The striking workers did not recognize these individuals. During the trial, it came out from the depositions of the accused that these might have been people from various sports clubs sponsored by the mayor of Zahanaozen, who had previously appeared in their company at meetings with the oil industry workers.
1.2. The trialdid not clarify the issue of whether the Kazakhstan’s law enforcement bodies had been appropriately prepared to fulfill their duties related to the protection of the striking workers. It should be noted that the strike on the square had lasted for a long time (almost half year) and had been peaceful throughout. Therefore, the state had an obligation to ensure security of the gathering. It follows from the indictment and from the testimony of witnesses that the law enforcement bodies and public services (above all the police but also the fire brigade and the ambulance service) were not prepared to take appropriate action in order to ensure public order. The prosecutors indicated explicitly in the indictment that the police did not have the specialist equipment necessary to restore order in case of a riot.
On the other hand, the prosecutor’s statement about the lack of preparation by the police is contradicted by other facts, e.g. bringing to Zhanaozen before December 16, 2011 of special units of the police from other cities, as well as the dispatch to Zhanaozen of police offices from units that were not devoted to riot control (e.g. police officers from the division for combating organized crime in Aktau) but are competent to conduct investigations. Moreover, the video recordings presented by the prosecution during the trial showed police officers shooting firearms at the crowd and hiding behind shields. These facts prove that there had been preparations to disperse the gathering.
Taking all of this into account, it is possible to conclude that the available evidence supports two contradictory versions:
• the police and other state structures were not completely prepared to carry out their responsibilities for ensuring the security of a peaceful gathering; or
• state structures were prepared in advance to forcibly disburse what was (at that moment) a peaceful gathering by the striking oil workers.
It is important to note that both these versions of events – regardless of which turns out to be closer to the truth – demonstrate that Kazakhstani state structures violated their obligation to provide security for the strikers’ peaceful gatherings. It is still necessary to seek further clarification to several questions that were not fully addressed during the trial:
• Was the decision to disperse the gathering made in advance and, if so, by whom?
• Were the police prepared to fulfill their responsibility to protect a peaceful gathering? Did the police have appropriate specialized riot control equipment?
• Why were the police equipped with firearms and live ammunition instead of specialized riot control equipment?
1.3. Most of the 37 accused were accused under art. 241.2 of the Penal Code of Kazakhstan of participation in riots. However, the video recordings presented by the prosecution, in which the events of December 16, 2011 were documented, show police officers hiding behind their shields, moving in a closed formation towards the people on strike, shooting firearms from behind shields and then beating the wounded with truncheons. This provides grounds for doubts as to whether the accused actually participated in riots or rather had tried to save themselves from police fire. According to the depositions of victims, witnesses and the accused, when the police fired on the strikers (between 13.00 and 14.00) much of the property damage that was later attributed to the accused had not yet taken place. In fact, during the trial many victims testified that the property was destroyed only after police units took control of the city; some depositions explicitly indicating that police officers were responsible for the property destruction. Moreover, none of the accused was unequivocally recognized as a person who had put up resistance to the police; all testimony against them was of questionable reliability as the witnesses reported seeing them from a long distance.
It should be emphasized once again that as a result of the use of firearms by the police at least 14 people were killed and many were wounded. Among the accused in the trial nine persons had gunshot wounds. In a separate trial of five police officers involved in the events at Zhanaozen, a court in Aktau ruled that police use of firearms had not been justified.
1.4. International standards with respect to freedom of peaceful gatherings, the guarantee of the right to life of persons participating in gatherings, and rules for the use of firearms by law enforcement officers require that during and after the events of December 16, 2011 Kazakhstani authorities should have:
• ensured security for the strikers because, regardless of whether or not it was legal, their gathering was peaceful;
• refrained from dispersing of the gathering because that is an extreme measure, and in the event of any risk to public order the authorities should first have tried to use conciliatory methods;
• refrained from using firearms against the strikers because in case of riots the police should first use specialist equipment for dispersing gatherings with the least possible harm to participants;
• appropriately prepared police forces to protect peaceful gatherings or to disperse riots, and coordinated the activities of emergency services such as the police, local administration bodies, the fire brigade and ambulance service;
• refrained from using torture and other forms of force or violence immediately after dispersing the gathering;
• refrained from any provocations and taken necessary steps in the face of provocative actions by unidentified individuals; and
• after dispersing the gathering, held accountable the specific persons who participated in any riots.
The Kazakhstani authorities’ failure to comply with these standards had a direct impact on the fairness of the trial monitored by the international mission because:
• The essential responsibility for the events of December 16, 2011 rests with the law enforcement bodies, above all the police and local authorities.
• Many of the accused were not only the victims of illegal use of firearms by the police, they were then subjected to torture after they were detained;
2. Violations of Human Rights at the Pre-trial Stage
The International Monitoring Mission noted numerous violations of human rights committed by representatives of law enforcement agencies prior to the trial. The following can be considered as the most serious violations:
2.1. The use of torture and inhuman and humiliating treatment of the accused: During the court hearings 30 of the accused declared that they had been tortured by the police. Torture was applied in order to prepare evidence for the subsequent trial. Of the accused, only the seven accused who were wounded on December 16 and were in hospital during the pre-trial investigation did not report being tortured.
Torture and inhuman, humiliating treatment of the detained occurred immediately after the events of December 16, 2011, when the accused were in temporary detention in Zhanaozen. According to the testimony of the doctor in the detention centre in Aktau, to which the accused were transferred from Zhanaozen, at the moment of their arrival all of the accused had bodily injuries, of which the prosecution was notified.
During the court hearings the accused identified that some law enforcement officers called as witnesses by the prosecutor as among those who had tortured them or treated them in an inhuman, humiliating manner.
Although the judge submitted all reports on the alleged use of torture for investigation in the prosecutor’s office, the prosecutor’s office failed to investigate those cases carefully – none of the persons guilty of these acts were identified.
2.2. Denial of access to attorneys during the pre-trial phase: During court hearings most of the accused declared that they had been denied access to an attorney during the initial stage of the police investigation. This is related to the use of torture by law enforcement officials for the purpose of securing incriminating evidence. According to many of the accused, they were granted access to an attorney only after the initial questioning during which they suffered torture and inhuman and humiliating treatment, and after signing of records with the results of the questioning.
The initial questioning was also conducted in breach of relevant procedures, without the appropriate supervision of superior bodies. The questioning was conducted by the police officers who did not have the right to do so (e.g. police officers from other regions of Kazakhstan dealing with organized crime). While being detained, the accused were not only beaten up but also robbed of valuable objects they had on their persons.
2.3. Use of torture and inhuman treatment of witnesses: During the court hearings, members of the International Monitoring Mission registered 10 witnesses who declared in their depositions that law enforcement officers had submitted them to physical violence and psychological pressure in order to obtain declarations incriminating the accused. All those witnesses denied their previous depositions.
2.4. The quality of evidence gathered by the prosecution: As Judge Nagashybaev Aralbay pointed out, the majority of the evidence gathered by the prosecution was irrelevant to the trial. According to the depositions of the accused and witnesses, the prosecution committed numerous procedural violations, in particular:
• Among the accused were people who had not been present on the square on December 16, 2011. They were detained by the police later, after introduction of the state of emergency. They claim they were forced by torture to admit to participating in the riots. As a consequence, three of the accused were subsequently released from the charges by the court due to lack of evidence. Nevertheless, it is worth stressing that those facts were not carefully checked by the prosecution at the stage of pre-trail investigation.
• Private enterprises were misled by the prosecutor’s office with regard to the possibility of obtaining compensation for the losses they had sustained. After December 16, a governmental commission was established and inhabitants of Zhanaozen who had suffered losses were invited to report to city hall in order to describe their loss. Compensation was promised from the state budget. Later, the entrepreneurs’ reports on the losses they had sustained were submitted to the prosecutor’s office, the entrepreneurs were given the status of victims and were summoned by the prosecution to appear in court. Many of the entrepreneurs found out about their status of victims in the trial only from the summons sent to them by the court. The prosecution failed to obtain the consent from the entrepreneurs to their participation in the trial in the capacity of victims. The entrepreneurs also were not informed about the legal consequences of their participation (or non-participation) in the trial. As a consequence, most of private entrepreneurs withdrew their reports, stressing that the damage had not been caused by the accused.
• The prosecution called police officers as open witnesses; it also turned out that some anonymous witnesses were also also police officers. In many cases, their testimony was virtually identical, and some of the police officers simply read out their depositions made at the stage of preliminary investigation. Defense attorneys pointed to this as grounds for concluding that the depositions of the police officers had been dictated to them by the prosecutors.
The above mentioned remarks regarding the quality of the evidence gathered by the prosecution and methods of collecting the evidence allow the conclusion that some of the evidence gathered by the prosecution was intentionally fabricated to incriminate the accused.
3. Some Issues Concerning the Right to Fair Trial during the Court Proceedings
As mentioned above, the trial conducted in the City Court in Aktau was, as a whole, conducted in compliance with the procedural rules of the Republic of Kazakhstan. The International Monitoring Mission does not have any material reservations concerning the conduct of the judges, organization of the court proceedings, or the respect shown forthe principle for an open court trial.
As of the moment of drafting of this statement the International Monitoring Mission has not yet received an official copy of the court ruling, and therefore is no able to evaluate unambiguously to what extent the court verdict itself was fair. Nevertheless, some issues do raise doubts, including the admission of testimony by policemen who were alleged to have participated in the torture of some of the accused and the decision to allow policemen to testify anonymously.
During the testimony of some of those witnesses the accused recognized them as among those who had tortured them. They presented significant detail to back up these allegations, which raises major doubts as to the value and credibility of the depositions by these witnesses.
In accordance with international standards, police should generally testify openly, as it is difficult for the accused to exercise their right to question witnesses when they do not know who the witness is. It is acceptable to keep a police official’s identity secret only when that is necessary to secure the possibility of involvement of such officers in future operational activities (e.g. if a police officer works under cover). The Monitoring Mission has significantdoubts as to whether there was such need in this concrete trial.
If the ruling is justified on the grounds of testimony by police officers and anonymous witnesses, then such a ruling could be seen as contrary to fair trial standards as results from the court practice of the UN Human Rights Committee (under art. 14 of the International Covenant on Civil and Political Rights) as well as the practice of the European Court of Human Rights (e.g. the case Van Mechelen and others v. the Netherlands , also the case Doorson v. the Netherlands ).
Thus, the International Monitoring Mission will be able to formulate its final conclusions on whether the court ruling which convicted 34 persons out of the 37 accused was fair or not only after receiving the text of the final ruling.
Considering the violations of human rights described above, the International Monitoring Mission believes that the trial of the oil industry workers from Zhanaozen cannot be considered as compliant with the fair trail standards due to:
• the use of torture against both the accused and witnesses;
• the denial of access to attorneys for the accused during the initial stages of the investigation;
• violation of valid procedures by the law enforcement bodies during the investigation; and
• the failure to take into sufficient consideration the responsibility of state authorities for the brutal suppression of a peaceful gathering on December 16, 2011.
Once the final text of the ruling is available it will also be necessary to conduct an additional evaluation from the standpoint of compliance with fair trial standards with regard to the following issues:
• the extent to which the ruling was based on the testimony of police officers testifying both openly and anonymously;
• the extent to which the ruling took into account the fact that the principal responsibility for the events of December 16, 2011 rests with the law enforcement bodies thatfailed to fulfill their obligations; and
• whether or not all the evidence gathered with the use of torture, inhuman or humiliating treatment was dismissed during the trial.
The International Monitoring Mission will evaluate those issues after receiving the final ruling of the city court in Aktau. That evaluation will be contained in the final Mission’s final report.