CIC Occasional Paper No. 1 - The Duvanov Case: Human Rights and the Role of the Media in Kazakhstan

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Introduction

In debates and publications about the development of civil society in Kazakhstan, international legislators and NGOs, supported by the mass media, have frequently focused on the case of Sergei Duvanov, a Kazakh journalist with close links to Kazakh Opposition groups who was sentenced to jail in a controversial rape trial in 2002. There is no doubt that the Duvanov case has had a strong influence on impressions of the country’s conduct in the field of human rights, and has coloured much of the debate on this subject.

Not untypical among international policy makers is the reaction of Lord Russell-Johnston, former President of the Parliamentary Assembly of the Council of Europe: “In my view, Mr Duvanov’s arrest is another piece of evidence for the lack of democracy in Kazakhstan.” On 13th February this year, the European Parliament passed a resolution demanding Duvanov’s immediate release and expressing concern about the investigation of the charges against him as well as the subsequent trial and sentence. Following the rejection of the journalist’s appeal on 11th March, Mr Douglas Davidson, the Deputy US Representative to the Organisation for Security and Cooperation in Europe (OSCE) expressed deep disappointment, describing the Kazakhstan Supreme Court’s decision as a setback for the development of the country’s judicial system. It also demanded to know what solutions could be taken in respect of “a case where the courts so clearly fell short of protecting procedural violations.”

On the same date, the EU again called for Duvanov’s early release and reiterated its concerns about the trial and the investigations that had led to his arrest. And in November, the US Ambassador to the OSCE called for the case to be placed on the agenda for a meeting with representatives of the President of Kazakhstan, Nursultan Nazarbayev, who was due to give a speech in Vienna on the 20th of that month. In the end, President Nazarbayev’s trip to Vienna was postponed due to the ill-health of the Austrian President, Thomas Klestil. The Duvanov case is routinely mentioned in correspondence and bilateral meetings between representatives of the US and EU and Kazakh officials, and there is little doubt that it remains a potential stumbling block to Kazakhstan’s prospects of taking over the Chairmanship of the OSCE in 2009.

Even before his trial, Kazakh Opposition campaigners alleged that Duvanov had been framed and that the charges against him were politically motivated, made with the aim of discrediting and silencing him. Prominent among Western NGOs taking an active interest in the case has been Reporters Without Frontiers, which had been in regular contact with the journalist prior to his arrest, and a group of seven Dutch NGOs which has pressed the OSCE to go on demanding his release, arguing that such cases made it hard for them to assist in the rebuilding of Kazakh civil society.

Such bodies have tended to accept uncritically Duvanov’s story and the claims made by Opposition groups, and to display increasing hostility to the Kazakh government. Thus, without offering any supporting evidence, Reporters without Frontiers declared in a statement on the Duvanov case in March this year: “Kazakh human rights and opposition journalists say the security services often try to implicate the government’s opponents in scandals.”

In turn, publications supported by the Kazakh Opposition quote Western sources that they may well have influenced. For example, according to the Kazakh newsletter, Voice of Democracy, which is the mouthpiece of exiled former Kazakh Prime Minister, Akezhan Kazhegeldin: “International human rights and journalism groups and assorted governmental bodies condemned the charges and trial, calling them unsound and politically motivated. That was confirmed by the just published OSCE report.” In fact, as we shall see below, the OSCE report neither confirmed nor rejected the claim that the trial was ‘politically motivated’.

The systematic nature of political and media briefings, citing the Duvanov case as an example of Kazakhstan’s failure to respect human rights and freedom of speech, has inevitably had an impact on discussions about the role of the media. This is especially true given that the country’s civil institutions are still in transition. It may also have distorted impressions of Kazakhstan's record in an area where progress is inevitably uneven, hampered by mores and attitudes entrenched over centuries. The truth, however, is that real advances have been achieved since Independence in 1991.


Background to the Trial

Sergei Duvanov was arrested in Kazakhstan on 28th October, 2002, in the village of Kainar, near Almaty, on a charge of raping a 14-year-old girl. He was subsequently tried, found guilty, and sentenced to three and a half years' imprisonment. His appeal against conviction has since been dismissed, as has an appeal made by the victim's mother against the leniency of the sentence.

Duvanov’s arrest occurred on the very day when he, an outspoken critic of the Kazakhstan government, was due to fly to the US where he was expected to criticise his country's human rights record.

A balanced account of the Duvanov trial and the circumstances surrounding it is valuable not only in its own right, but because of the light it throws on current political tensions in Kazakhstan and relations between the government, the Opposition and the media.


The Case for the Defence

On 12 July, 2002, Duvanov, the editor of a publication called The Bulletin, which deals with human rights issues, published on the internet an article entitled “Silence of the Lambs”, in which he accused Nursultan Nazarbayev, the President of Kazakhstan, of siphoning off state funds for his own purpose. Comparing him to the former Yugoslav dictator, Slobodan Milosovic and to General Pinochet of Chile, the article also offered explicit backing to the ambitions of the former Prime Minister, Akezhan Kazhegeldin, to replace the President .

According to Duvanov’s defence team, shortly after this a plan was hatched to destroy the journalist’s reputation and to prevent him from continuing his work. The plan is said to have involved a Kazakh police colonel called Dzhakishev who knew the man living next door to Duvanov’s country dacha, a Mr A. E. Cherkasov. Cherkasov, who had a criminal record, did occasional work for Duvanov as a handyman in his home.

According to this version of events, a suitable “victim” was found in Khristina Kapeliushina, a 14-year old whose mother had served a sentence of three years for robbery. After leaving their home village, both mother and daughter had gone to stay with the Cherkasovs. This arrangement ended when Kristina’s mother, Irina Sai, fell out with Cherkasov’s wife, after which the two moved to the home of a police inspector in a neighbouring village. Khristina, however, continued to visit Cherkasov’s stepdaughter, Amina, and when Duvanov visited his dacha on 27th October he met Khristina for the first time. After lunch, which the girl helped prepare, he invited all of those present to take turns in his sauna. When the other members of the Cherkasov family went home, Amina and Khristina stayed to help the journalist put away some books, listen to music and have something to drink.


The Case for the Prosecution

Up to this point Duvanov’s account of the day’s events does not differ greatly from that of Khristina. At his trial, however, Duvanov said that after Amina had gone home he went back into the sauna. As he emerged, the girl offered to give him a massage and then pushed herself on to him. He pushed her away, explaining that he was not interested in her advances. After drinking a glass of wine – which he believed to have contained drugs - he fell asleep and did not notice anything untoward until he woke up alone and found that his clothing had been disturbed.

According to Khristina, however, it was Duvanov who asked for the massage. She did as he asked, but as she tried to leave, he locked the door and raped her. After returning to her mother’s apartment later that night, she explained what had occurred, and her mother lodged a complaint with the police in the early hours of the following day.

Human rights groups campaigning for Duvanov’s release have pointed to procedural lapses on the part of the prosecution. Their claims have been supported by observers from the OSCE and the EU who attended the trial along with officials from the US Embassy. According to the OSCE observers, there were “a number of minor and a few” serious procedural violations. The President’s daughter, Dariga Nazarbayeva, has also publicly said that the court’s proceedings were flawed in procedural terms.

Whatever their reasons, most Western NGOs have accepted Duvanov’s account of events. Few have bothered to give a full account of the prosecution’s case or an accurate account of the scientific evidence which it produced at the trial. This evidence raises serious questions about the reliability of Duvanov’s defence, which was essentially that the case against him had been concocted. However, when confronted with evidence that semen samples had been found in the girl’s vagina, he did not deny that sex had taken place. Two Dutch law professors who were asked by the OSCE to examine the evidence presented in the trial and to provide an independent assessment, stated that:

"When the prosecution came up with evidence of sperm in the vagina, and succeeded in connecting the sperm with Duvanov through DNA analysis … a new procedural situation arose. Duvanov’s spontaneous outburst in the trial - “How my sperm happened to get into the vagina of the victim once again confirms the provocation. How should I know how it got there?” - may be understandable, but was procedurally inadequate. The defence adopted a two-pronged approach: they attacked the expert reports at the procedural level, claiming that they had been improperly drafted, that they did not meet the standards set by the law, but also that the results had been tampered with and falsified etc; they also, admitting implicitly that the reports were substantially correct, presented an alternative explanation for what had happened.”

Duvanov’s “alternative explanation” assumes that a 14-year-old girl could have non-consensual sex with an unconscious fifty-year-old man, an explanation which should stretch the credulity of even the most avid conspiracy theorist. In the words of the independent legal experts: “Expert opinion … established that Duvanov was able to have normal sexual intercourse, that sexual intercourse against the will of the man is highly unlikely, and that sexual intercourse by an unconscious man [is] impossible.” Moreover, scientific tests on Duvanov’s glass provided no corroboration for his claim that he was drugged prior to intercourse taking place.

Although the OSCE independent experts acknowledge procedural lapses in the preparation of the scientific evidence, they also say that these were not serious and that the Moscow-based scientific experts who submitted this evidence were “qualified and reliable.”


Wider Considerations

Much of the suspicion aroused by the case – among Duvanov's political allies in Kazakhstan and among human rights campaigners in the West – was due to the timing of Duvanov’s arrest, just hours before he was due to leave for the United to attend an engagement at the Carnegie Endowment for International Peace. But, however reluctant Duvanov's supporters might be to consider that there may have been no connection between his planned trip and his arrest, the fact remains that, by his own admission, sexual intercourse did take place between Duvanov and Khristina Kapeliushina on the eve of his planned departure.

The conclusion of the independent experts was that the verdict reached in the trial was unsound because the evidence did not prove beyond doubt that sexual intercourse had taken place against the girl’s will; the bruising found on her body was insufficiently serious to provide evidence of rape. And do they not dismiss the idea of an organised attempt to discredit Duvanov. But they also offer another possible scenario:

"Kapeliushina, perhaps afraid of what her mother might say, claimed afterwards that she had been raped; Duvanov, mindful of his reputation and considering it would be his word against hers, denied everything and when the expert evidence became available, claimed he had been drugged.”

In sentencing Duvanov, the District Court of Karasi held that Duvanov had not known that the girl was only fourteen years old and, for this reason, he had been tried under part one of the criminal code, rather than under section two which deals with the more serious offence of raping a child. It is worth noting – as the independent experts pointed out – that had the prosecutors brought a charge of sex with a minor against Duvanov, that there would have been no basis for criticising the prosecution, other than on procedural grounds.


The Impact on Public Opinion

The Duvanov case, coming in the wake of a series of bruising encounters between government and media, has convinced some Western observers that the country’s human rights record is poor and its media shackled, despite the fact that Duvanov’s article of 12th July, 2002, itself provides impressive testimony to the contrary. This perception takes little account of what has been achieved since Kazakhstan's Independence, including the real advances in media liberty and human rights. Failure to distinguish those areas where genuine reform has been achieved does not encourage the process of reform; neither does the common tendency, recently identified by Prince Michael of Kent, of "tarring all [the Central Asian republics] with the same brush".

In the case of the media, as any Western observer who travels to the country will be aware, the reality is that Kazakh publications regularly carry criticism of the government, of the electoral process, of the courts, and of officialdom generally, as well as details of alleged human rights abuses. Indeed, such articles are frequently re-published from the pages of Western newspapers. But the creation of a free press, like the broader aim of creating a civil society, should be recognised as a work in progress and judged accordingly. The observation made by Erlan Idrissov, Kazakhstan’s Ambassador to London, that his country - like Prime Minister Blair's – "does not have a reverse gear", is to the point.

Few in the West who have read accounts of the Duvanov trial will have an inkling of the diversity or breadth of the Kazakh media, or of the country’s recent achievements in the establishing of a civil society. Since Independence, there has been a huge increase in the number of publications and broadcasting stations and, though many promote a government perspective, others are fierce critics. According to Government figures, there were 1,431 mass media and information agencies as of 1st August, 2003. In 2000, a total of 37 new television stations were granted licences. Most newspapers are published in Kazakh or Russian, but there are also Ukrainian, Polish, English, German, Korean, Uighar, Turkish and Dungan language publications and programmes.

Some criticism of modern Kazakhstan's media cites State-ownership, or part-ownership, of too many newspapers and broadcasting stations, too much influenced by those close to the President. Yet 80 per cent of the mass media are now privately owned, and proprietors include political parties and religious organisations, as well as limited and joint-stock companies.

The emergence of a media beyond their control may have proved to be a painful learning process for officials and members of the government, but it is one that is evidently equally exacting for the political opposition and its allies. In Western countries, when commenting on the excesses or mistakes of governments, opposition party spokesmen are frequently known to exaggerate or even to misrepresent the facts. But such spokesmen generally moderate their comments when speaking abroad or talking to foreign media, for fear of damaging their country’s reputation and interests.

This convention has not yet taken root in Kazakhstan, as is clear from the following examples.

In October this year, Amirzhan Kossanov, another journalist and prominent associate of former Prime Minister Akezhan Kazhegeldin, complained to Western journalists and even wrote to prominent NGOs that he was under house arrest following his trial for fraud and tax evasion, and that he was unable to accept speaking invitations because he was prevented from leaving his home. So draconian and far-reaching were the restrictions placed upon him, that a few days later Kossanov popped up in Vienna to give extensive briefings to OSCE ambassadors on the human rights situation in his country. According to the Opposition newsletter Voice of Democracy: “Kazakh opposition members, headed by Amirzhan Kossanov, met in Vienna with OSCE delegates earlier this month to urge them to confront Nazarbayev on the Duvanov case, human rights abuses, absence of the rule of law and other issues.”

Similarly, journalists closely aligned with the Opposition reported that the government had effectively silenced Ermurat Bapi, a former newspaper editor and colleague of Kossanov who, on 18th November, was given a one-year suspended jail sentence and a fine of around $60,000 after being found guilty of fraud and tax evasion. According to these sources, Bapi was also banned from writing further critical articles for five years: “The editor of Kazakhstan's leading independent newspaper, SolDat, has been banned from practicing journalism for five years [emphasis added] … The ban is unprecedented, RFE/RL reports.” This claim was repeated on various international media, including RFE/RL , who interviewed Bapi immediately after the trial. According to the Wall Street Journal , however, the truth is different. It reported that Bapi had in fact been banned from publishing for five years - a very different matter and one that presumably does not prevent his pursuing his journalistic and political career.


The Importance of Historical Context

The sharpest criticism of Kazakhstan in matters of human rights and press freedom comes, very often, from those failing to place developments in the context of the country's recent past - perhaps because their interest in the country is new, or because they seek to judge by an assumed universal standard. Presented with the same evidence, those familiar with the region and its history might, and do, reach different conclusions.

When Elizabeth Jones, US Secretary for Europe and Eurasia, and Lorne Craner, Assistant Secretary of State for Democracy and Human Rights, visited Kazakhstan in mid-November 2003, it was Ms. Jones – a former Ambassador to Kazakhstan - who was most positive in her appraisal of recent developments, while Mr Craner was critical. Ms. Jones told a press conference in Astana on 12th November that there had been a notable advance in the development of civil society since her posting there in the late 1990s:

"I was very encouraged by the active development of civil society in Kazakhstan. This is much bigger and bears much more responsibility. These changes allow Kazakhstan to make the next step and become the first country in the region that will fully correspond to OSCE requirements in relation to the civil society and to how it is developing and regulated."

Ms. Jones welcomed the request made by Kazakhstan that the OSCE review the proposed new election law, intended to be in place for Kazakhstan's next parliamentary elections, in Autumn, 2004. “This is a very good initiative – as a result a good law will be developed.” Like other recent high-level US visitors, Ms. Jones also presented the US President’s thanks for Kazakhstan's robust anti-terrorist measures.

That the creation of a civil society is an ongoing process, and one that has still some way to go, was also recognized by the British Labour MP, Bob Spink, who travelled to Kazakhstan as part of a parliamentary delegation in November, 2002. He told the House of Commons on 1st April, 2003:

“I saw for myself the great progress that has been made in a number of areas in Kazakhstan. In developing democracy, electoral systems are improving, civic and human rights are progressing apace, a free press is emerging and gaining confidence, and there is a desire to improve the justice and legislative systems. More can be achieved, of course, but the progress made over the last decade is remarkable when one considers how many hundreds of years it has taken us to achieve such progress.”

Kazakhstan's progress was also recorded at the meeting of the Kazakhstan-EU Parliamentary Cooperation Committee held in Strasbourg in July, 2003. The Committee welcomed the appointment of a Human Rights Ombudsman and “the efforts of Kazakhstan in the maintenance of freedom of worship, religious tolerance, and the development of inter-confessional dialogue”. It also acknowledged Kazakhstan's progress in prison reform, and the government's proposals for further democratisation.

Further evidence of Kazakhstan’s desire to conform with international standards on human rights came on 17th November this year when President Nazarbayev signed a decree authorising the signature of two human rights agreements – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Signatories to these documents have a responsibility to provide the UN with information about human rights on an annual basis and to cooperate with UN agencies in eliminating violations of citizens’ rights and liberties. The burden is on Kazakhstan to live up to these concrete new commitments, and the country’s progress will no doubt be measured against its aim to assume the chairman ship of OSCE in 2009.


The Growth of Civil Society

In assessing the progress of political pluralism in Kazakhstan, it is inevitable that judgements will be as varied as the perspectives and political persuasions of those making them. It will take time to determine which of those corresponds most closely to the truth. However, there are in the ordinary transactions of Kazakh citizens areas of progress that are every day apparent and should be undisputed. These include not only general economic advance, improved living standards and employment prospects (subjects which will be dealt with in a later CIC paper), but also, as civil society takes root, the proliferation of non-governmental bodies. Covering the spectrum of interests, these now number more than 3,500, with 35,000 part-time and 50,000 full time employees. Many have benefited from contact with Western NGOs and agencies such as the US Aid Programme’s Counterpart Consortium, which has established across the Caspian region six Civil Society Support Centers to promote political and social diversity.

Perhaps the most remarkable consequence of political and social reform, and a clear indication of how freedom is expanding in Kazakhstan, has been the burgeoning of organised religion. This has been achieved without conflict or tensions between faiths, in a region not previously known for religious tolerance. Under the communist system, freedom of religion was heavily restricted. But since Independence there ahs been a rapid and remarkable expansion.

In 1991, there were only 25 mosques in a state that had been militantly atheistic for more than 50 years; however, by 2003, the number had risen to 1,408. Similar growth has taken place in other religions, a fact already acknowledged by Pope John Paul when he visited the country in September 2001, and bestowed the Vatican’s highest award, the Order of Pius, on the Kazakhstan President. The Roman Catholic Church has also signed an agreement with Kazakhstan, governing mutual relations – the first such concordat with a CIS state. It confirms the religious freedom of the Church, its right to be involved in educational and charitable activities, access to the mass media and the right to acquire property. Perhaps even more remarkable has been the opening of synagogues to meet the religious and spiritual needs of the country’s 70,000 Jews, and the participation of the Chief Rabbi of Israel, Iona Metsger, in the World Religious Forum held in Almaty in September, 2003.



Conclusion

As a result of its high profile, the Duvanov case has diverted attention from the substantial, if uneven, progress made in the field of human rights in Kazakhstan since Independence. Despite the fact that Duvanov’s defence is not supported by the findings of independent legal experts, his claims, and the publicity that these have attracted, have been deeply damaging to the country’s reputation.

The emergence of a free press in Kazakhstan involves painful adjustment, especially on the part of government officials unaccustomed to public criticism. Important lessons need to be learned by government and Opposition interests alike - in particular, that distorting the facts of a situation for partisan reasons is more likely to generate public cynicism about the political process than to achieve the stated aim of advancing democratic reform. In the West, observers need to be reminded of just how far Kazakhstan has travelled in the few years of its autonomy, that the process of democratic reform is still in its infancy, and that political judgement needs to reflect those facts.




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Copyright of the Caspian Information Centre, London, December 2003